Thornberry v. State Bd. of Regents, 54322

• Court: United States State Supreme Court of Iowa
• Writing for the Court: RAWLINGS; All Justices concur except REES
• Citation: 186 N.W.2d 154
• Parties: Raymond J. THORNBERRY and Louise Thornberry, Appellants, v. STATE BOARD OF REGENTS of the State of Iowa, and State of Iowa, Appellees.
• Docket Number: No. 54322,54322
• Decision Date: 09 April 1971

Page 154

186 N.W.2d 154 Raymond J. THORNBERRY and Louise Thornberry, Appellants,
v.
STATE BOARD OF REGENTS of the State of Iowa, and State of Iowa, Appellees. No. 54322. Supreme Court of Iowa. April 9, 1971.

Page 155

William L. Meardon, Iowa City, for appellants.

Richard C. Turner, Atty. Gen., Elizabeth Nolan, Asst. Atty. Gen., and Arthur O. Leff, Iowa City, for appellees.

RAWLINGS, Justice.

From judgment entered on jury verdict awarding damages to plaintiffs for property taken by eminent domain proceedings, and denial of a new trial, they appeal. We reverse.

For purposes of campus developments, defendant Board of Regents initially adopted a resolution directing condemnation of land owned by plaintiffs, described as, The North one-third of the West one-half of Lot 4, Block 92, Iowa City, Johnson County, Iowa.

Pursuant to this board action the condemnation commissioners met and assessed damages.

From the award thus made plaintiffs appealed to the district court. As disclosed above the jury returned a verdict. Plaintiffs were thereby awarded $20,000 damages for the taking. Their motion for new trial having been overruled they now appeal to us.

Errors here assigned are, essentially, trial court erred in, (1) striking Division II of plaintiffs' petition challenging authority of defendant board to condemn, overruling a motion to dismiss for that reason, made at close of all evidence, and giving of a jury instruction to the effect defendant board was authorized to condemn for the purpose specified; (2) admitting in evidence the price plaintiffs paid for the subject property, and instructing the jury such could be considered as a factor in determining allowance of damages; (3) refusing to give a plaintiff requested instruction.

I. Plaintiffs' petition on appeal to trial court was in two divisions. First, the condemnation commission award is challenged. Second, by two amendments, it is affirmatively alleged defendant board's action was illegal, void, beyond its power, the adopted resolution was indefinite, and exceeded authority vested by law in defendant board.

Page 156

We deal first with trial court's order striking the amendments above mentioned and overruling the related post evidentiary motion to dismiss made by plaintiffs.

At the threshold, plaintiffs cite and rely solely upon Bourjaily v. Johnson County, 167 N.W.2d 630 (Iowa).

In that case, after assessment of damages by the commission, plaintiff property owners appealed to the district court. They thereby challenged the award, and jurisdiction of the court, because of procedural defects in that defendant county had not caused requisite service of notice to be given contract vendors and a mortgagee of record. See The Code 1966, §§ 472.3, 472.9. On motion made, trial court struck the jurisdiction challenging allegation. We reversed on appeal to this court and in so doing held, in substance, jurisdiction of the subject matter was properly raised in the pleading and should not have been stricken.

Despite what may be best described as a superficial similarity, it is to us evident Bourjaily v. Johnson County, supra, is not factually comparable or here controlling.

Distinguishably we are not now confronted with a jurisdictional issue, but rather a question as to inceptional exercise of substantive legislative power and authority by the condemning body.

By way of exclusion, plaintiffs neither controvert the constitutionality of authority statutorily delegated to defendant board, nor existence of its power to take by condemnation. See The Code 1966, Sections 471.1, 262.45. See also 29A C.J.S. Eminent Domain §§ 21--23; 26 Am.Jur.2d, Eminent Domain, § 19; 13 Drake L.Rev. 95, 96.

Reduced to basic essentials, plaintiffs contended by their amendments, supra, the condemning body, under existing facts, acted illegally or in excess of its authority.

II. Foundationally, any determination as to the necessity of taking private property for public use is ordinarily a legislative, not judicial function. Ermels v. City of Webster City, 246 Iowa 1305, 1307, 71 N.W.2d 911; Porter v. Board of Supervisors, 238 Iowa 1399, 1403, 28 N.W.2d 841. See also 29A C.J.S. Eminent Domain §§ 87, 209, 211; 26 Am.Jur.2d, Eminent Domain, §§ 5, 17, 38. Cf. Abolt v. City of Fort Madison, 252 Iowa 626, 634, 108 N.W.2d 263. But see Reter v. Davenport, R.I. & N.W. Ry. Co., 243 Iowa 1112, 1122--1124, 54 N.W.2d 863.

As aforesaid the amendments to plaintiffs' petition raised a question only as to whether defendant board's action was in excess of its power and authority, or illegal. For reasons appearing infra, this is instantly far removed from any jurisdictional issue.

The matter of jurisdiction is not generally involved in the primary legislative act or resolution directing application be made for the taking of property by condemnation. The Code 1966, Section 472.3. See People v. Young, 100 Ill.App.2d 20, 241 N.E.2d 587, 589; In re Perez, 197 La. 334, 1 So.2d 537, 540; LaFleur v. City of Baton Rouge, 124 So.2d 374, 377--378 (La.App.); Delaware River Port A. v. Pennsylvania Pub. Util. A., 408 Pa. 169, 182 A.2d 682, 686. See also 29A C.J.S. Eminent Domain § 223; 27 Am.Jur.2d, Eminent Domain, § 378.

Actually, jurisdiction issues first come into play when the condemnation commission commences damage appraisement proceedings. Then, for the first time, notices and hearing are required. The Code 1966, Sections 472.3--472.16. See Bourjaily v. Johnson County, 167 N.W.2d 630, 634--635 (Iowa). See also O'Kelley v. Lochner, 259 Iowa 710, 715, 145 N.W.2d 626; State ex rel. Cox v. Consolidated District, 246 Iowa 566, 571--574, 68 N.W.2d 305.

And, if appeal is then taken, jurisdiction of the district court is appellate only. Kenkel v. Iowa State Highway Commission, 162 N.W.2d 762, 764--765 (Iowa); see Wilkes v. Iowa State Highway Commission, 172 N.W.2d 790, 792--793 (Iowa).

Page 157

We now hold, plaintiffs invoked no jurisdictional issue by their petition on appeal to trial court. Rather, they thereby attempted to improperly inject an issue going only to the substantive power or authority of defendant board to act.

Trial court committed no error in striking the above mentioned authority challenging amendments from plaintiffs' petition, instructing the jury defendant board instantly had authority to condemn, and overruling plaintiffs' in course of trial motion to dismiss.

III. This does not mean, however, there is no available avenue by which a condemnee may test the initiatory action of a condemning public body.

On several occasions we have held, injunctive relief is available. Harvey v. Iowa State Highway Commission, 256 Iowa 1229, 130 N.W.2d 725; Abolt v. City of Fort Madison, 252 Iowa 626, 108 N.W.2d 263; Batcheller v. Iowa State Highway Commission, 251 Iowa 364, 101 N.W.2d 30; 30 C.J.S. Eminent Domain § 401; 27 Am.Jur.2d, Eminent Domain, § 485; Annot. 93, A.L.R.2d 465. But see Ermels v. City of Webster City, 246 Iowa 1305, 1307, 71 N.W.2d 911. Cf. 46 Neb.L.Rev. 816.

Review by certiorari may also be had. Aplin v. Clinton County, 256 Iowa 1059, 129 N.W.2d 726; Reter v. Davenport, R.I. & N.W. Ry. Co., 243 Iowa 1112, 54 N.W.2d 863; 30 C.J.S. Eminent Domain § 373; 27 Am.Jur.2d, Eminent Domain, § 378.

Furthermore, mandamus will lie to compel the institution of condemnation proceedings where private property is being taken for public use absent compensation. Crawford v. City of Des Moines, 255 Iowa 861, 124 N.W.2d 868; Anderlik v. Iowa State Highway Commission, 240 Iowa 919, 38 N.W.2d 605; Baird v. Johnston, 230 Iowa 161, 297 N.W. 315; 30 C.J.S. Eminent Domain § 398; 27 Am.Jur.2d, Eminent Domain, § 490.

On the other hand, a condemnee may not stand silently by, take no affirmative action in the face of apparent unauthorized or illegal action by a condemnor, participate in commission appraisement proceedings, then invoke appellate jurisdiction of the district court and there, for the first time, challenge exercise of the initiatory legislative power or authority. See Frank Mashuda Company v. County of Allegheny, 256 F.2d 241, 242--243 (3 Cir.), aff'd 360 U.S. 185, 79 S.Ct. 1060, 3 L.Ed.2d 1163, rehearing den'd. 361 U.S. 855, 80 S.Ct. 41, 4 L.Ed.2d 93; B & W Hen Farm, Inc. v. Georgia Power Company, 222 Ga. 830, 152 S.E.2d 841; County Board of Com'rs. for Clarendon County v. Holladay, 182 S.C. 510, 189 S.E. 885, 887--888; 29 A C.J.S. Eminent Domain § 267; Annot. 44 A.L.R. 542, 554. Cf. Felker v. Iowa State Highway Commission, 255 Iowa 886, 890--891, 124 N.W.2d 435; Stellingwerf v. Lenihan, 249 Iowa 179, 183, 85 N.W.2d 912; Reter v. Davenport, R.I. & N.W. Ry. Co., 243 Iowa 1112, 1122, 54 N.W.2d 863.

Plaintiffs here attempted to improperly invoke, in their appeal to trial court, a collateral and nonappealable issue. This means the case at bar does not come within the 'jurisdiction issue rule' enunciated by us in Bourjaily v. Johnson County, supra.

IV. Ray Thornberry, one of the condemnees, was called as a witness, and on direct examination testified:

'Louise Thornberry is my wife. * * * We own the property, 40 by 50 feet, located at the south-east corner of the intersection of Madison and College Streets. We have owned it since 1948. Located thereon is a small one-story frame house. I believe it was June or July in 1948 that we bought this property.

'After we bought the property we removed partitions to make as large a workshop as possible and used it for the manufacture of our canvas products and awning frames. We put a basement under the building.'

Page 158

This plaintiff witness later stated, in his opinion, $30,000 was the reasonable value of the property, December 16, 1966, being the apparent taking date.

On cross-examination counsel for defendant board interrogated this witness regarding price paid for the land when purchased. Trial court overruled plaintiffs' timely objection and answer to the question posed was $4000.

It is now contended that ruling and admission of the...