Wicks v. Iowa State Highway Commission, 50808

• Decision Date: 12 February 1963
• Docket Number: No. 50808,50808
• Citation: 254 Iowa 998,119 N.W.2d 781
• Parties: W. R. WICKS and Irene C. Wicks, Appellees, v. IOWA STATE HIGHWAY COMMISSION and State of Iowa, Appellants.
• Court: Iowa Supreme Court

Page 781

119 N.W.2d 781

254 Iowa 998

W. R. WICKS and Irene C. Wicks, Appellees, v. IOWA STATE HIGHWAY COMMISSION and State of Iowa, Appellants.

No. 50808.

Supreme Court of Iowa.

Feb. 12, 1963.

Evan Hultman, Atty. Gen., of Iowa, Des Moines, C. J. Lyman, Sp. Asst. Atty. Gen., Henry M. Keyes, State Counsel, Iowa State Highway Commission, Ames, and William L. Meardon, Iowa City, for appellants.

Messer & Cahill, Swisher & Swisher, and Marion R. Neely, Iowa City, for appellees.

SNELL, Justice.

Plaintiffs W. R. Wicks and Irene C. Wicks, husband and wife, appealed to the district court from the assessment of damages for the taking by eminent domain of part of their property and appurtenances thereto for highway improvement purposes. From the award following trial by jury defendants (for convenience herein called 'the commission') have appealed to us.

Plaintiffs are the owners of a corner lot at the intersection of Highways #1, 6 and 218 in Iowa City. Located thereon is a motor vehicle service station selling Shell products.

Incident to a highway improvement project defendant commission condemned a small area and all rights of direct access except two commercial entrances.

On appeal defendants claim error in submitting to the jury any question of damage for reductions in access, error in rulings on evidence and improper instructions.

While the difference between plaintiffs' and defendants' valuation witnesses was as usual in such cases extreme, the reasonableness of the award is not the question before us.

I. Defendants claim error in allowing the jury to consider, as an element of damage, the reduction in access to plaintiffs' property. Defendants argue that the designated access remaining after condemnation constituted free, reasonable and convenient access as a matter of law. Prior to condemnation plaintiffs' corner lot had 125 feet frontage on Riverside Drive (east side of property) and 152 feet frontage on the south side of the property with free access at all points. After condemnation access was limited to an opening 35 feet wide on the east side and to an opening 44 1/2 feet wide on the south side. There was evidence of substantial impairment of the 'free and convenient' access previously existing.

This is an action at law to determine the just compensation due plaintiffs because of the taking of property through the State's power of eminent domain. It is not a taking through exercise of police power. 'Generally, a taking through exercise of the police power is non-compensable; through eminent domain it is compensable.' Warren v. Iowa State Highway Commission, 250 Iowa 473, 478, 93 N.W.2d 60, 63.

The problem of access has been considered in recent decisions. Iowa State Highway Commission v. Smith, 248 Iowa 869, 82 N.W.2d 755, 73 A.L.R.2d 680; Wilson v. Iowa State Highway Commission, 249 Iowa 994, 90 N.W.2d 161; Warren v. Iowa State Highway Commission, supra; In re Primary Road No. Iowa 141, 253 Iowa ----, 114 N.W.2d 290.

It should be noted that the Smith, the Warren and the Primary Road No. 141 cases were tried to the court. Only the Wilson case was tried at law to a jury. The court's finding of fact in nonjury cases does not necessarily mean that there would be no jury question in another case.

The Smith case, supra, was an action by the Highway Commission for a declaratory judgment involving limitations established by the commission and the City of Des Moines. The defendants were the owners of properties abutting a controlled access highway. The plaintiffs sought a declaratory judgment that limitations on access established by the commission and the prohibition of vehicular crossings, left turns and u-turns, except at designated points, did not constitute taking of property for which compensation must be paid. Previously, defendants had unlimited access. The commission sought limitations thereof.

In the opinion it is said:

'It is now well settled in Iowa and we think in most jurisdictions that real property consists not alone of the tangible thing but also of certain rights therein sanctioned by law, such as the right to access--ingress and egress. It is clear owners of property abutting a street or highway cannot be deprived by public authorities of all access thereto without just compensation. As the commission concedes, such deprivation amounts to a taking of the property. * * * We have said several times that the destruction of the right of access or the substantial or material impairment or interference therewith by the public authorities is a taking of the property.'

Under the authorities cited by the court the question for determination was whether there was such a substantial impairment or interference with the right of access as to constitute a taking of the property for which compensation should be paid. There was no receding from the precedents, but they were not regarded as controlling under the stipulated facts. The case recognizes the rule that an owner is not entitled as against the public to access to his land at all points between it and the highway. If he has free and convenient access to his property and the improvements on it, and his means of ingress and egress are not substantially interfered with by the public, he has no cause for complaint.

It was held that in determining whether limitations placed by the commission upon the number and location of access locations are reasonable, the judgment of the commission is entitled to deference because of its superior knowledge of highway and traffic matters. But, the commission's authority is not above that of the court.

We quote: 'No hard and fast rule can be stated as to whether an abutting property owner has been denied access that is reasonable or, as we have said, 'free and convenient.' In most instances the question is one of fact, not of law, and its determination depends largely upon the evidence in the particular case.' (Citations) See page 877 of 248 Iowa Reports, page 760 of 82 N.W.2d 73 A.L.R.2d 680.

Under the evidence there being considered, the court found as a matter of fact that the limitations were reasonable. The opinion does not say that the question should be determined as a matter of law.

The Wilson case, supra, was an appeal from the setting aside of the jury verdict in a law action and was decided because of a showing that the jury had considered elements of damage withdrawn from consideration. The case does, however, reaffirm the holdings in the Smith case.

In the Primary Road No. Iowa 141 case, supra, it is said:

'No hard and fast rule can be stated as to whether an abutting property owner has been denied reasonable access to his property, or, as we have said, 'free and convenient' access. (Citations) Only after consideration of the vital facts can this be determined. This matter is fully discussed in the latter two highway commission cases and it need not be repeated here. Nevertheless, in the Smith case appears a significantly applicable statement. 'In most instances the question (denial of reasonable access) is one of fact, not of law, and its determination depends largely upon the evidence in the particular case. (Citations)' Therefore, whether plaintiffs have suffered such a denial here will depend upon the evidence, and a motion to strike the allegations in that regard was premature. It is true that, pursuant to hearing the evidence in a particular case, the court may determine as a matter of law that the access provided was reasonable and, therefore, there was no taking for which compensation must be made, but we have clearly indicated that, unless the question is free of doubt, it is a question for the jury.'

In the case at bar we cannot say that the reasonableness of the access after condemnation was so free of doubt as to require decision by the court as a matter of law that there was no compensable damage resulting therefrom.

There was no error in the submission of this issue to the jury.

II. Defendants claim error in instructing the jury that evidence of comparable sales might be considered as substantive evidence of the value of the condemned property.

The trouble in this particular is in the lack of evidence of comparable sales.

R. P. White called as a witness by plaintiffs, said that he was acquainted with the sales of some of the oil stations in the Iowa City area, but he gave no testimony as to such sales.

James Parden called as a valuation witness by the plaintiffs, testified as to building activity. He mentioned building by Texaco and the Standard Station expanding and that new stations built in Iowa City cost 'upward of $100,000.' He thought plaintiff's station worth more than the new stations that cost $100,000. He did make comparisons as to the access to other stations but said nothing about sale prices.

James W. Pearson called as witness on behalf of defendants, qualified as an experienced real estate broker, and gave his opinion as to valuation before and after condemnation. In cross-examination he said he was familiar with other oil stations in Iowa City, but there is only one that he knew of that had been sold and that is the Texaco station about a quarter of a mile toward town from plaintiffs' property. He considered the production of that station in arriving at the valuation of the Wicks station and he said, 'I understand the transfer value of the Cannon Station (Texaco) was for $75,000.00.'

In making his comparison he picked four stations; Sinclair Station that cost $60,250 to buy the land and to build; the Conoco Station constructed at a cost for land and improvements of $59,000; the Kirkwood Super Service built in 1957 at a cost of $45,000, and another station built at a cost of 'something like $94,000.'

Samuel B. Whiting called as a witness on behalf of the defendants, qualified as an experienced real estate appraiser. He appraised the property by three different methods. He took a summation approach by measuring the building and computing the...