Vittetoe v. Iowa Southern Utilities Co.

• Decision Date: 15 October 1963
• Docket Number: No. 51059,51059
• Citation: 123 N.W.2d 878,255 Iowa 805
• Parties: Marcella VITTETOE, Plaintiff-Appellee, v. IOWA SOUTHERN UTILITIES COMPANY, Defendant-Appellant. Samuel A. WILDER, Original Plaintiff-Appellee, Jane W. Prest, Jane W. Prest, Iowa Executrix, and Richard A. Stewart, Iowa Administrator with Will Annexed of the Estate of Samuel A. Wilder, Substituted Plaintiffs-Appellees, v. IOWA SOUTHERN UTILITIES COMPANY, Defendant-Appellant.
• Court: Iowa Supreme Court

Page 878

123 N.W.2d 878

255 Iowa 805

Marcella VITTETOE, Plaintiff-Appellee, v. IOWA SOUTHERN UTILITIES COMPANY, Defendant-Appellant.

Samuel A. WILDER, Original Plaintiff-Appellee, Jane W. Prest, Jane W. Prest, Iowa Executrix, and Richard A. Stewart, Iowa Administrator with Will Annexed of the Estate of Samuel A. Wilder, Substituted Plaintiffs-Appellees, v. IOWA SOUTHERN UTILITIES COMPANY, Defendant-Appellant.

No. 51059.

Supreme Court of Iowa.

Oct. 15, 1963.

Livingston, Day & Bates, Washington, and Robert Valentine and C. R. S. Anderson, Centerville, for appellant.

Baldrige & Baldrige, Washington, for appellee Marcella Vittetoe.

Stewart & Shearer, Washington, for Samuel A. Wilder, original plaintiff-appellee and substituted plaintiffs-appellees.

GARFIELD, Chief Justice.

Plaintiffs, Mrs. Vittetoe and Samuel A. Wilder, own adjoining farms between one and two miles east of Washington, Iowa. (We disregard the fact Wilder is now dead and personal representatives are substituted for him.) Defendant sought to condemn a strip of land 100 feet wide diagonally across the farms for right of way for a 69,000-volt electric transmission line. After obtaining a franchise from the state commerce commission (herein called 'commission') for such purpose defendant filed with the sheriff of Washington county its petition for condemnation of these and other lands. From the awards of the commissioners or 'sheriff's jury' each plaintiff appealed to the district court.

The first division of the petition filed by each plaintiff in the appeal alleges defendant's petition for condemnation filed with the sheriff was invalid because no valid authority to condemn had been issued; that at the hearing before the (commerce) commission on defendant's application for a franchise the commission excluded from its consideration the question whether the condemnation was necessary; without a determination of such necessity defendant cannot exercise the power of eminent domain; and so the taking herein amounts to the taking of private property for private purposes and any law granting such right is unconstitutional. Defendant's answer denies these allegations.

Pursuant to stipulation these divisions were consolidated for trial to the court. The facts were stipulated. They consist largely of a partial record of the proceedings before the (commerce) commission upon defendant's application for a franchise. The trial court upheld plaintiffs' contention the franchise and defendant's petition for condemnation were invalid upon the grounds alleged by plaintiffs and dismissed the condemnation proceeding. Defendant appeals to us.

I. Section 489.1, Code, 1958, I.C.A. (all Code references are to the Code of 1958 unless otherwise noted), prohibits the erection of an electric transmission line across any public highway or grounds outside cities and towns without first procuring 'a franchise granting authority so to do as in this chapter provided.'

Section 489.2 provides for the filing of a petition asking for a franchise to erect a transmission line 'necessary for conducting electric current for light, heat, or power * * * and to acquire necessary interests in real estate for such purpose.'

Section 489.4 requires the board or commission with which the petition is filed to fix a date for hearing thereon and cause a notice thereof to be published.

Section 489.5 gives anyone whose rights or interests may be affected 'the right to file written objections to the proposed improvement or to the granting of such franchise; * * *. The board or commission * * * shall consider said petition and any objections filed thereto, and may hear such testimony as may aid it in determining the propriety of granting such franchise.'

Section 489.14 is perhaps the most important statute applicable to the present appeal. It provides in part that anyone 'having secured a franchise as provided in this chapter, shall thereupon be vested with the right of eminent domain to such extent as may be necessary and as prescribed and approved by the board or commission, not exceeding one hundred feet in width for right of way * * *.' (Emphasis added)

Perhaps we should also set out this from section 489.17: 'Said transmission line shall be constructed near and parallel to the right of way of the railways of the state or along the division lines of the lands, according to the government survey thereof, wherever the same is practicable and reasonable, and so as not to interfere with the use by the public of the highways or streams of the state, nor unnecessarily interfere with the use of any lands by the occupant thereof.'

In connection with this last provision we may observe a railway forms the north boundary of the farm of each plaintiff and goes in the general direction of the proposed transmission line.

II. Plaintiffs filed objections with the commission to defendant's application for the franchise and appeared in person and with counsel at the hearing thereon. Plaintiffs then attempted to show by cross-examination of defendant's witnesses and their own evidence it was not necessary for defendant to take plaintiffs' lands for right of way for its transmission line. However, the commission ruled 'The matter of convenience and necessity doesn't enter into our hearing. Strictly safety and engineering. Convenience and necessity do not enter into these hearings.' The commission's 'Decision and Order' granting the franchise recites: 'Under chapter 489, Code 1958 the applicant is not required to show convenience and necessity.'

It is true an exhibit entitled 'Approval by Iowa State Commerce Commission to exercise the right of eminent domain,' dated 18 days after issuance of the decision and order granting the franchise and the franchise itself, contains the statement in the printed form, 'this Commission * * * does hereby certify that in the opinion of the * * * Commission the property hereinafter described is necessary for right-of-way easement purposes for the use of said company, to-wit:'

Notwithstanding the statement just quoted, it is clear the commission failed and refused to consider the question whether it was necessary for defendant to condemn the strip in question for right of way purposes and plaintiffs were not permitted to resist defendant's application for franchise on the ground the taking was not necessary. We think the principal question upon this appeal is whether this renders invalid the franchise and defendant's petition for condemnation of plaintiffs' lands. We hold it does.

III. It is true, as defendant argues, the initial determination of what is a public use is ordinarily for the legislature and courts will not interfere with its determination that a use is public unless it is clear, plain and palpable it is private in character. Such legislation has the same presumption in its favor as exists where constitutionality of a statute is challenged. Abolt v. City of Fort Madison, 252 Iowa 626, 634, 108 N.W.2d 263, 268, and citations.

Much of defendant's argument is devoted to the proposition that the transmission of electric current for distribution to the public is a public use for which the power of eminent domain may be exercised. This is not open to doubt. Carroll v. City of Cedar Falls, 221 Iowa 277, 285-286, 261 N.W. 652; Northern States Power Co. v. Oslund, 236 Minn. 135, 51 N.W.2d 808, 809, 52 N.W.2d 717; Annos. 44 A.L.R. 735, 741-2, 58 A.L.R. 787; 18 Am.Jur., Eminent Domain, sections 66, 67, pages 693-7; 29 C.J.S. Eminent Domain § 58, pages 845-847.

The disagreement between the parties here is not over the question whether distribution of electricity to the public is a public use. Their disagreement relates to whether the particular property sought to be condemned is necessary for the proposed use. 'To authorize the condemnation of any particular land by a grantee of the power of eminent domain, a necessity must exist for the taking thereof for the proposed uses and purposes; * * *.' 29 C.J.S. Eminent Domain § 90, page 884. See also Porter v. Iowa State Highway Comm., 241 Iowa 1208, 1216, 44 N.W.2d 682, 686, and citations.

An absolute necessity for taking the particular land need not exist. A reasonable necessity is sufficient. Minear v. Plowman, 197 Iowa 1188, 1191, 197 N.W. 67; Northern States Power Co. v. Oslund, supra, 236 Minn. 135, 51 N.W.2d 808, 809, 52 N.W.2d 717; Wilton v. St. Johns County, 98 Fla. 26, 123 So. 527, 535, 65 A.L.R. 488, 501-502; Lewis Eminent Domain, Third Ed., section 601, page 1062; 29 C.J.S. Eminent Domain § 90, page 886.

It is agreed that, unlike other statutes granting the power of eminent domain, chapter 489 at the time in question here--it is different now--contained no definite requirement that the commission make a specific finding and determination of public convenience and necessity. Defendant (appellant) argues, however, that a finding by the commission of public convenience and necessity for the particular condemnation 'is either implied within the legislation or is included as part of the determination of propriety when a franchise is granted.' Reliance is upon the requirement of section 489.5, supra, that the commission 'shall consider said petition and any objections filed thereto, and may hear such testimony as may aid it in determining the propriety of granting such franchise.' (Here the 'petition' was designated 'Application.')

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