Trachta v. Iowa State Highway Commission

• Citation: 86 N.W.2d 849,249 Iowa 374
• Decision Date: 17 December 1957
• Docket Number: No. 49301,49301
• Parties: Ernest Edward TRACHTA and Darlene Trachta, Appellants, v. IOWA STATE HIGHWAY COMMISSION, State of Iowa, Appellee.
• Court: United States State Supreme Court of Iowa

Page 849

86 N.W.2d 849

249 Iowa 374

Ernest Edward TRACHTA and Darlene Trachta, Appellants, v. IOWA STATE HIGHWAY COMMISSION, State of Iowa, Appellee.

No. 49301.

Supreme Court of Iowa.

Dec. 17, 1957.

Edward L. O'Connor, Iowa City, for appellants.

Norman A. Erbe, Atty. Gen. of Iowa, Daniel T. Flores, Ames, and Bryce M. Fisher, Cedar Rapids, for appellee.

LARSON, Justice.

Plaintiffs own a 160 acre farm located about 1 1/2 miles south of Cedar Rapids in Linn County, Iowa. Relocation of Highway 218 by the State Highway Commission required a strip of land along the east side of the farm totaling 4.62 acres. In addition to the land taken, certain grading, paving, and culvert replacement on and under the new highway were alleged to have affected adversely the use, occupancy, and enjoyment of the farm. The new 200 foot highway, with a 24 foot cement pavement running north and south, replaced a 60 foot county graveled roadway lying east of and abutting 120 acres of plaintiffs' land. Plaintiffs' farm consisted of two 40 acre tracts in line, north and south, referred to herein as the north 80 acres, upon which was located the residence and farm buildings. Lying directly south of this land was a 40 acre tract which belonged to a Mr. Modracek, and then directly south of that tract was another 40 acres of land owned by plaintiffs upon which was a second set of farm buildings. A county road ran east and west past this land. Directly behind, or west of Mr. Modracek's 40 acres, was another 40 acre tract owned by plaintiffs. Although this tract touched the north 80 acres on the northeast and the south 40 acres on the southeast, it was necessary to obtain rights to pass between them from owners of other land. Such rights were obtained by easement on the south and only by permission on the north. While the land was all used in one farming operation and the 40 acre tracts were rotated, the usual transportation of live-stock and machinery to and from the north 80 and south 40 was by the county roads.

In their appeal plaintiffs contend, due to errors of the trial court certain competent and material evidence was excluded from jury consideration thus preventing a just award of compensation as by law required. They list 12 errors.

I. The real question before us in this case is the competency of testimony offered to show the estimated cost of structures deemed necessary to counteract a claimed detriment to the property suffered by the condemnation or taking under eminent domain. When evidence of the cost of new structures--in one case a new corral on the south 40, and in another, new drain tile to care for an alleged increase in surface water discharged on plaintiffs' north 80--was offered, objections were made and sustained on the basis that such evidence was speculative, uncertain, and did not tend to prove the proper measure of damages. Plaintiffs complain of this ruling, but in sustaining the objection and striking testimony concerning costs of these structures, often volunteered before an objection could reasonably by made, we think the trial court was correct. By reason and by precedent we recognize the general rule that the various detriments may be shown in such matters, but estimates of costs necessary to offset the detriment for erecting new structures such as buildings, fences, walls, and drain tile, cannot be shown. This rule is discussed and the reasons for it are fully set out in Randell v. Iowa State Highway Commission, 214 Iowa 1, 10, 241 N.W. 685. There appears to be but one exception, which relates to the moving of a present structure such as a fence where exactly the same wire, posts, and braces are used, and there is no uncertainty as to its establishment and future maintenance. Randell v. Iowa State Highway Commission, supra.

Plaintiffs urge that the need for a new corral was shown, that the exact size was determined, and that an expert could testify as to costs, but as set out in the Randell case, the need, as well as the type, future use, etc., were questions for the jury to determine, and suppositions as to need, use and expense were incompetent and highly speculative as to the establishment of the then value of the property. The fact that the jury may also become confused as to its proposed purpose of explaining the after-taking value of the property, and add this estimated cost to the loss of value to the farm as a whole, further illustrates the impropriety and incompetency of such testimony. Here there were at least three ways to transport machinery and livestock to and from the south 40--by herding down the west shoulder of the new highway, which was by itself wider than the original road; by fencing a lane over his own land and using the acquired right-of-ways over his neighbor's property; and by trucking. Expenses, of course, would be incurred in each method, but this expense would be of little aid in determining the aftertaking property value, though it might help evaluate the detriment. The question as to the over-all effect of the detriment, if found to exist, is best left to the jury, and evidence of the loss to the whole property, as considered by competent valuation witnesses who consider each of the alleged detriments, is sufficient aid in that determination. Here the valuation witnesses, both for plaintiffs and defendant, in giving their estimate of the value of this farm before and after the taking, considered the water diversion and tiling problem, the cattle transportation problem, the disturbance of peace the quiet, the loss of land, and the removal of several rods of fencing. They gave various interpretations as to the seriousness of the alleged detriments, and for what weight the jury wished to give them, in the determination of the ultimate fact, their opinions were available.

II. Testimony of collateral facts in support of estimates of value in a condemnation case must be left largely to the discretion of the presiding judge. We have been consistent in holding evidence of separate values of needed improvements is not admissible as an independent item of damage. Evidence of improvement values can only be used to explain and support the estimates of value of the entire property. Hayes v. Chicago, R. I. & P. Ry. Co., 239 Iowa 149, 152, 30 N.W.2d 743, and citations; Ranck v. City of Cedar Rapids, 134 Iowa 563, 566, 111 N.W. 1027; Randell v. Iowa State Highway Commission, supra. On direct examination of value witnesses, ordinarily the market value of the land together with the improvements, taken as a whole and not separately, is to be shown, and the value of the improvements apart from the land may not be then shown. Ranck v. City of Cedar Rapids, supra; Hayes v. Chicago, R. I. & P. Ry. Co., supra, and citations.

Turning first to listed Error No. 3, plaintiffs contend the court was in error in sustaining defendant's motion to strike testimony given by the plaintiff Ernest Trachta as a witness for himself on direct examination when he said, 'Since the building of the new highway there is only one way that I can get my cattle from my home place down to the pasture (on the south 40 acres) and back again and that is by trucking them. I will have to hire a trucker, load up the cattle and truck them down there. There will have to be a corral built down there with a chute, and that is where I will have to unload them--and that corral has to be there so I can load them up and come out of there with them.'

Defendant's motion to strike the answer for the reason that it is an opinion and conclusion, conjectural, speculative, incompetent, irrelevant and immaterial, was sustained 'after he said he would have to truck them.' We think that the ruling was correct, as the portion stricken was clearly voluntary and unexpected. The motion also was timely, for it was made as soon as convenient following the witness's voluntary statements subsequent to answering a proper question. Walrod v. Webster County, 110 Iowa 349, 81 N.W. 598, 47 L.R.A. 480; Miller v. Davis, 193 Iowa 611, 187 N.W. 433. Furthermore, as indicated in Division I, the testimony did not relate to a proper measure of damages. Randell v. Iowa State Highway Commission, supra; Welton v. Iowa State Highway Commission, 211 Iowa 625, 233 N.W. 876; Dean v. State, 211 Iowa 143, 233 N.W. 36; Kosters v. Sioux County, 195 Iowa 214, 191 N.W. 993.

Thereafter Trachta testified that he did not have a corral on the south 40, and to the question, 'Are you going to put in a corral down there' the defendant's objection that it 'calls for an answer which is speculative and conjectural, and a guess,' was sustained. Next, plaintiff was asked, 'Now, how large a corral will it be necessary for you to build on your south forty?' Objection was made as 'improper direct examination, not a proper measure of damages * * *', which the court sustained. These rulings were correct. Randell v. Iowa State Highway Commission, supra; Welton v. Iowa State Highway Commission, supra; Dean v. State, supra; Kosters v. Sioux County, supra.

Obviously the plaintiff was improperly attempting to introduce evidence of the cost of building a new corral on his south 40. As to such evidence we said in Randell v. Iowa State Highway Commission, supra [214 Iowa 1, 10, 241 N.W. 692]:

'Such cost (of building a new fence) cannot be considered at all by the jury as an item of damage. While evidence may be introduced * * * to show that a fence may need to be built, repaired, and replaced, yet there can be no recovery for the fence as a fence, nor can such cost as such be added to other items of damages found by the jury.'

As to showing costs of replacement of a definite fence existing before the condemnation which was rebuilt after condemnation, we said:

'There is no obscurity, speculation, or guess about it. When, however, an additional hypothetical fence is contemplated, at a new place created by the condemnation, another situation is presented, as shown by Dean v. State, 211...