Stortenbecker v. Iowa Power & Light Co.

• Citation: 96 N.W.2d 468,250 Iowa 1073
• Decision Date: 05 May 1959
• Docket Number: No. 49402,49402
• Parties: Martha STORTENBECKER, Appellee, v. IOWA POWER AND LIGHT COMPANY, Appellant.
• Court: Iowa Supreme Court

Page 468

96 N.W.2d 468

250 Iowa 1073

Martha STORTENBECKER, Appellee, v. IOWA POWER AND LIGHT COMPANY, Appellant.

No. 49402.

Supreme Court of Iowa.

May 5, 1959.

Rehearing Denied July 24, 1959.

Ross, Johnson, Northrup, Stuart & Tinley, Council Bluffs, and Gamble, Read, Howland, Gamble & Riepe, Des Moines, for appellant.

Smith, Peterson, Beckman & Willson, Council Bluffs, for appellee.

LARSON, Justice.

Plaintiff owns 598 acres of land in Sections 11, 13 and 14 in York Township, Pottawattamie County, Iowa. The land in Section 13, comprising 365 acres, has a complete set of farm buildings and is the residence of one son. A road separates it from the remaining 233 acres, which also has a complete set of farm buildings and is the residence of another son. The sons jointly operate this land as a grain and livestock farm and pay cash rent for it.

Defendant instituted proceedings to condemn a right of way and easement for an electric transmission line across a part of the lands in Section 13 only. The easement covers a strip of land 100 feet wide and 3,389 feet in length, involving directly an area of approximately 7.7 acres. Over this land, from the southwest to the northeast, are strung three copper transmission wires and two static wires supported by two-pole structures. One one-pole and six two-pole structures were placed on two portions of plaintiff's land. The distance between the poles in a two-pole structure is between 13 feet 7 inches and 14 feet. They are placed at an angle with the north and south, and east and west fence lines. Between the extreme southwest structure and the next one on plaintiff's land, the wires cross a neighbor's field.

The condemnation commission appraised plaintiff's damages at $2,100. Upon appeal to the district court plaintiff claimed $14,950, and the jury awarded $8,372. From that award and orders of the trial court in connection therewith, and the judgment for costs, defendant appeals to us.

I. Plaintiff's petition alleged the farm unit from which the right of way and easement was taken included all her lands in Sections 11, 13 and 14, totaling 598, not 365, acres. It is the general rule that where a right of way or easement through a unit of land such as a farm is taken by stautory proceedings, recovery of damages is not limited to the field or division through which it passes, but extends to all the tracts in that unit. Defendant seems to concede that rule, but contends under the undisputed facts disclosed that the unit involved here was only the property owned by plaintiff in Section 13. It contends the court should have so instructed the jury as a matter of law and, having refused to do so upon defendant's request, it committed reversible error.

The learned trial court instructed the jury they should determine the question 'from the evidence before you bearing upon the kind and character of the improvements, the contiguousness or noncontiguousness of the several tracts of land, the kind and type of methods of operating of the farming, the ownership, location and use of the farm machinery, and the implements of farming and the manner and method of handling during the period of time covered by the testimony.' He then told the jury, 'If you find from the evidence that all of the lands of the plaintiff located in Sections 11, 13 and 14, are operated as a single farming unit, then these lands in their entirety comprising 598 acres should be considered by you in estimating the damages * * *.' (Emphasis supplied.) The instruction was proper.

Generally speaking, it is the use and operation of the lands in question that determine whether damages for a taking by condemnation should be assessed to all the land in the vicinity owned by the condemnee or to the various tracts or parcels separately. Paulson v. State Highway Commission, 210 Iowa 651, 231 N.W. 296, and cases cited therein; Ham v. Wisconsin, Iowa & Nebraska Ry. Co., 61 Iowa 716, 17 N.W. 157; Hoeft v. State, 221 Iowa 694, 266 N.W. 571, 104 A.L.R. 1008.

There was evidence from which the jury could reasonably find that the entire acreage, though not contiguous, was used as one farm, so that the loss and inconvenience would affect its entire use and operation. The question then became one of fact for the jury. In addition to plaintiff's petition in which she alleged both tracts were farmed as one unit, she produced evidence that the two tracts of land had been farmed as one unit prior to her ownership and had been farmed as one unit by her sons since she purchased the land in 1941. The sons testified they practiced rotation farming on the land as a unit, that the machinery kept in sheds on both places was used on all the lands, and that they fed the crops raised on these lands to livestock which was pastured on the various tracts in Sections 11, 13 and 14, and that they divided equally the receipts therefrom. When the court refused to pass on this matter as a matter of law, defendant requested that the jury be required to answer the question: 'How many acres are included within the farm unit of Martha Stortenbecker?' The jury's answer of 598 acres was justified.

II. Defendant contends the trial court erred in unduly limiting its right of cross-examination of the plaintiff's witness Grobe. This witness had expressed his opinion on direct examination that the market value of the 598 acres immediately before condemnation was $300 to $315 per acre, and immediately after the taking was $275 to $280 per acre, disclosing a total damage of $14,900 to $20,830. In defendant's attempt to discredit this testimony, the witness was asked, 'And what is the fact as to whether your father did at your suggestion and pursuant to your handling of the matter execute a transmission line easement?' Plaintiff's objection was sustained by the court, and defendant then offered proof that the witness Grobe, on behalf of his father, had accepted $1,500 for an easement substantially identical to that in character acquired by the condemnation proceedings herein. It was properly rejected.

The witness did not himself execute the easement involved. However, it is clear defendant was attempting to show the witness accepted the $1,500 offer in the capacity of owner. In that capacity the solicited testimony was improper. We recently passed upon that situation in Basch v. Iowa Power and Light Co., Iowa, 95 N.W.2d 714, stating that the price paid by the condemnor for other tracts taken for the same project has been held by this court to be unduly prejudicial citing Wilson v. Fleming, 239 Iowa 718, 31 N.W.2d 393.

Even if it could be said that from this proposed cross-examination it would appear the witness advised his father $1,500 was a fair and reasonable figure for the easement, we are inclined to agree with the rule announced by the court in United States v. Foster, 8 Cir., 131 F.2d 3, 5, which states: 'The cross-examination * * * went into a forbidden field because it examined as to the prices paid by the condemnor for other tracts taken for the same project. The doctrine of estoppel to urge error can not justify extending the privilege of cross-examination into forbidden fields.'

Logic as well as authority are adverse to defendant's contention, for the field in which the defendant attempted to enter involved many far-reaching and collateral matters entirely foreign to the issue of reasonable value. The witness, as well as members of his family, were faced with a condemnation proceeding against their dying father. Far too many remote and compelling circumstances would be involved in such a settlement for it to be competent, relevant and material to the issue of value involved in this controversy. While the right of cross-examination to test the credibility of a valuation witness should not be unduly restricted, we are satisfied the lack of good faith of this witness could not be established in this manner.

Further support for our position is found in Steensland v. Iowa-Illinois Gas & Electric Company, 242 Iowa 534, 47 N.W.2d 162; Simons v. Mason City & Fort Dodge R. Co., 128 Iowa 139, 103 N.W. 129, and cases cited; United States ex rel. and for Use of Tennessee Valley Authority v. Reynolds, 5 Cir., 115 F.2d 294; 32 C.J.S. Evidence §§ 547 and 548, pp. 338-341, and § 593, p. 448; 2 Nichols on Eminent Domain, Second Ed., § 456, pp. 1200-1201.

III. Defendant next contends the nature of the interest acquired by it in the lands of plaintiff was merely an easement, with the right of ingress and egress for the purpose of repairing and maintaining the transmission line, and that it did not acquire 'a right of way' over the lands of appellee. Complaint is made of the court's repeated use of the terms 'right of way and easement' in the instructions, and error is predicated thereon. However, unless it appears that the court failed to properly explain the rights acquired by a condemnation of such a 'right of way and easement' in the instructions, so that the jury is left to speculate as to its meaning and the rights acquired by condemnor, the contention is without merit. In Instruction 9 the court specifically told the jury that the rights acquired by appellant did not include the right to any crops, herbage or profits from said land nor any right to the soil, nor damage which may have been caused by the construction of the line, nor any damage to the lands, crops of herbage which may later be incurred as a result of the defendant's entering upon the farm to inspect, repair or replace the transmission line. It also told the jury, 'The right acquired does not prevent the owner of the land from using the property for any lawful purpose not inconsistent with the transmission line easement * * *.' In other words, the right of way for the wires did not interfere with the plaintiff's lawful use of her land for crops or pasture.

Section 489.14, Code of 1958, I.C.A., provides for eminent domain procedure entering upon land in electric transmission line cas...