Tracy v. City of Mt. Pleasant

• Decision Date: 24 March 1914
• Citation: 146 N.W. 78,165 Iowa 435
• Parties: TRACY ET AL. v. CITY OF MT. PLEASANT ET AL.
• Court: Iowa Supreme Court

165 Iowa 435

146 N.W. 78

TRACY ET AL.

v.CITY OF MT. PLEASANT ET AL.

Supreme Court of Iowa.

March 24, 1914.

Appeal from District Court, Henry County; W. S. Withrow, Judge.

Action to condemn certain land to the use of Mt. Pleasant, to supply that city with water and fire protection. The city appeals. Affirmed on condition.James Hourihan, City Sol., and J. C. McCoid, both of Mt. Pleasant, for appellant.

W. F. Kopp, of Mt. Pleasant, and John J. Seerley, of Burlington, for appellees.

LADD, C. J.

This is a proceeding to condemn certain land for the use of the city of Mt. Pleasant in supplying water and affording fire protection to its people. The application therefor alleged this to have been insufficient, and that, “in pursuance of said objects, the city of Mt. Pleasant, Iowa, through its city council, finds that it is necessary to procure or acquire, by purchase or condemnation, for the purpose of obtaining a sufficient water supply and adequate fire protection; that the said city desires to make some extensive improvements to obtain a sufficient supply of water, and also to construct reservoirs for the purpose of obtaining an adequate fire protection, and in pursuance of said necessity requires the following described real estate” (describing it); that the city had been unable to acquire title thereto by purchase; that Louisa Tracy owned eight-twelfths thereof, and the other plaintiffs one-twelfth each, and prayed that the damages to each occasioned by the taking be assessed; “that the said jury assess the damages of the real estate only, not taking into consideration any of the improvements thereon which belong to the city of Mt. Pleasant, Iowa.” The tract sought to be taken consisted of two acres, which had been made use of by the city under lease and was part of a farm of between 67 and 68 acres. The sheriff's jury assessed the damages at $1,350, and an appeal was taken by the owners to the district court, where the award was increased to $5,000.

[1] Exceptions were saved to only two rulings on the admissibility of evidence, and any prejudice in one of these was obviated by subsequently eliciting the information sought. The evidence disclosed that there were three wells in the land sought to be condemned, and which the city had leased for some time, each about ten feet in diameter and 22 feet to sand, and from the bottom “points” about 9 feet long (five-inch pipe with three-eights inch holes covered with wire gauze) are let down about 30 feet, and through these the water is drawn to supply the city. Different witnesses estimated the value of the land to be from $250 to $300 per acre, and that the appropriation by the city of the two acres for the particular use proposed would diminish the value of the farm from $20 to $50 per acre, or not at all.

E. E. Bartow, who had been director of the Illinois water survey for seven years, had been a professor of chemistry, and had studied in Germany, testified that he had seen the wells and pumping station; that the only way to locate sand or gravel below the surface and determine where water comes from was by test wells; that often a good well is near one that is worthless; that water is often found in gravel or sand beds, evidently in depressions beneath the surface; that assuming sand or gravel is reached at a depth of 25 feet, with hard impervious clay above, this would indicate water is collected therein from some distance (that is, “500 yards or a couple miles or even farther”); that this can only be ascertained by experiment. The witness was then asked “if he was acquainted with the market value of water supplies.” The objection that this called for the value of a single quality and not for the total value of the real estate condemned, and that the competency of the witness had not been shown, was overruled, but no exception was saved. The answer was: “In general, to a certain extent.” The witness then explained that, “if these wells would produce an average of 70,000 gallons during three months, they would produce the same amount if operated at full capacity, and he was then asked: “If these wells would produce during the three months in the summer time a daily average of fully 70,000 gallons per day of water, of pure water, which doesn't need to be filtered for a city of about 4,000 people, what would you say was the value of that water plant, the reasonable market value, excluding the machinery, simply the water supply itself?” An objection “on the ground that professor was not acquainted with the conditions in Mt. Pleasant, and does not know whether there was another water supply, does not know what the rates are, or the demand or necessity for water, because there might be a wholly different value to this water between Mt. Pleasant and some place in Kansas or in Illinois; the market value there might not be the same, and because it established the value of the real estate by items; it is asking the opinion of an expert on a state of facts which are not shown to exist”--was overruled, and the witness answered: “$3,000 is a minimum value. It might go higher, depending on circumstances.” We are of opinion that the objections ought to have been sustained. In the first place, he was a nonresident, and was not shown to have been familiar with local conditions, nor to have had any information as to whether other water supplies were available, or for what purposes other than those of the city the water was available, or the extent the supply might be controlled by acquiring the land sought to be condemned. What his duties as director of the Illinois water survey were was not disclosed, nor did it appear that his experience or education qualified him to estimate water supplies generally or this particular one. He claimed to know the market value only “to a certain extent,” which was entirely indefinite. His testimony was a mere guess as to what he thought the city ought to pay, and this could not be more forcibly illustrated than by his cross-examination, wherein he explained that there was “a strong probability that, by putting down wells six or seven feet from the city wells on the Tracy land, they would get the same water the city is getting. “Q. If they were able to pump our water from us, then what would be the value of our wells on this side in that tract from which we get our supply? A. It would depend upon which pumped the faster. Q. Suppose the people on the Tracy side pumped the faster and had a more powerful pump? A. You wouldn't get the water you needed. Q. Then our tract wouldn't be worth much? A. No, sir; it wouldn't. Q. The possibility of putting wells immediately over the line of this tract, just the same water-bearing area as ours, would depreciate the value of our tract a great deal? A. Just as you have destroyed the value of their land for water-bearing prospects now. Q. It would be the same on either side? A. Yes, sir. Q. You would say that little area was worth $3,000? A. Why, I should say that the city should control more land in the first place, and that there would not only be the possibility of having water, but also the danger of contamination from wells in the neighborhood. The city should not only control two acres, but ought to control even more than that; as far as your direct question goes, the flow of water into wells through sand is fixed according to the character of the sand and gravel. Water would flow into each one, as was testified this morning. With one well they get about as much water as they could from two. If the distance was greater, they would probably get more from two than they would from one, because of the fact that the water takes time to flow through the sand. That the right would be worth $3,000 if the city could enjoin other people from interfering with their water, and would be based upon the city's right to prevent any one else from taking any of the water. The value is fixed upon the hypothesis that the city should make a contract or arrangement that the water should not be taken away, and will get as much water as they propose to get. Q. But without that arrangement, without that assurance, it wouldn't have the same value? A. Evidently not. That if the city had to divide with any one it would be worth half that much, because the city has the right to condemn land, and could condemn this further. Q. But suppose we didn't have the money to pay for it, and couldn't condemn it? A. I am afraid the city would be in trouble. The fact that the Inglebright well lowered the Tracy well, and pumping at the well south of the big Tracy pond lowered the Tracy well, it would indicate that the water was one continuous body across there, was a stratum.” That in figuring the value at $3,000, he figured it on the theory that the city would control sufficient land to control the water supply. He based his value partially on the fact that the city should control enough land to control the water supply and eliminate contamination. He fixed his value on the fact that the city could get that much water and be assured that much water, without regard to the number of acres of surface they might control. “I mean they should be assured there would be no interference of the water supply and have such a control as there would be no pollution of the water supply. Q. Of course, the water being only three or four feet from the line, we couldn't assure ourselves of that protection, either from the theft of the water or from pollution? A. No, sir. But some arrangement could be made to protect the city.”

There was no motion to strike his estimate of value following this cross-examination, but, as competency to testify thereof was not shown in the first instance, his opinion of the value of the water supply was improperly received. The only testimony furnishing a basis for assessing the damages at more than $2,000 was that of the witness, and all allowedabove that amount necessarily was excessive.

Counsel for appellant also...