Wilkes v. Iowa State Highway Commission

• Decision Date: 12 November 1969
• Docket Number: No. 53658,53658
• Parties: Robert F. WILKES, Appellant, v. IOWA STATE HIGHWAY COMMISSION, Appellee.
• Court: Iowa Supreme Court

Page 790

172 N.W.2d 790

Robert F. WILKES, Appellant, v. IOWA STATE HIGHWAY COMMISSION, Appellee.

No. 53658.

Supreme Court of Iowa.

Nov. 12, 1969.

Miller, Pearson & Gloe, Decorah, for appellant.

Richard C. Turner, Atty. Gen., Charles O. Garretson, Asst. Atty. Gen., to Iowa State Highway Commission, Ames, and Henry L. Holst, Special Asst. Atty. Gen., and Counsel to Iowa State Highway Commission, Ames, for appellee.

LARSON, Justice.

This appeal comes to us pursuant to an eminent domain proceeding in the district court wherein the condemnee was awarded two verdicts, one for the taking of real estate and the other for personal property damaged or reduced in value as a result of the taking. When the trial court sustained condemnor's motion for a new trial, condemnee appealed.

On March 11, 1968, the Iowa State Highway Commission notified the appellant herein, Robert Wilkes, that approximately 3.8 acres of his land in the City of Decorah, Winneshiek County, Iowa, would be appraised for condemnation on March 19, 1968. Upon this land and .7 of an acre of adjacent railroad land Mr. Wilkes operated a livestock sales business known as the Decorah Sales Commission. Upon the railroad land was located a sale barn, sale cafe, scales, and related items such as pens and runways for the stock. It was obvious the business could not operate at this location without the use of both tracts.

The condemnation commissioners viewed the 3.8 acre tract which Wilkes owned in fee, gave no consideration to any damage to the facilities located upon the adjacent land, and awarded him the sum of $29,183 for the real estate taken. Being dissatisfied with the award, the Highway Commission appealed. The condemnee Wilkes then filed his petition in the district court as required in section 472.22 of the Code alleging inter alia that the real estate taken had been used by him and his predecessors in conjunction with the leased adjacent railroad tract in the sales commission business and that the sale barn and other buildings considered by all parties as personalty were located upon the leased tract. He sought $50,000 for the real estate taken and $11,000 for the destruction or reduction in value of the personal property on the railroad land. The Highway Commission's answer admitted the taking and generally denied all other allegations.

In the trial Wilkes offered testimony as to his purchase of the 3.8 acres of land and the facilities and personal property located on the railroad land in 1964 for the sum of $37,500, as to his leasehold rights in the leased land and ownership of the personal property thereon used in the sales commission land, and as to its destruction and value reduction as a result of the taking of his real estate. The State objected to the evidence relating to ownership and damage to the alleged personal property located on the railroad land on two principal grounds, (1) that the district court had no jurisdiction to consider the issue, and (2) that damages to personal property located on land other than that taken are not compensable. These objections were not sustained, and in submitting the case to the jury on June 19, 1968, two verdict forms were provided, one for the real estate taken and the other for the reduction in value of condemnee's personal property located on adjacent railroad land used in connection with the real estate taken. The jury returned a verdict for $36,000 for the real estate condemned, and a verdict for $11,000 for the reduction in value of the personalty.

On June 27, 1968, the Highway Commission moved the court to set aside the 'verdict' and grant a new trial. Upon specific grounds set forth in the motion, the trial court sustained the motion and on January 22, 1969, granted a new trial. Condemnee appeals.

Appellee asserted five grounds in its motion for a new trial: (1) That there was a lack of jurisdiction to consider the issue of damages to personal property located on land of another; (2) that the verdict is contrary to the law; (3) that the verdict is not supported by sufficient evidence; (4) that errors occurred in the court's rulings on objections and in its instructions to the jury listed as (a) through (u); and (5) that the court erred in failing to instruct the jury as to the proper measure of damages. The trial court found grounds (2), (3) and (5) general in nature, and stated, in view of its conclusions in grounds (1) and (4), they would not be separately considered. Since no complaint is made as to this determination, we also shall direct our attention to grounds (1) and (4). Although the issues raised therein are deemed important to this decision, the real problem presented is whether under section 472.14 of the Code, 1966, a condemnee may recover for damages to his personal property located on leased third-party-owned land adjacent to the real estate being taken under eminent domain proceedings when said personal property is used in connection with the business being conducted on the condemned land.

I. Appellee's primary contention is that evidence as to the alleged damages to personal property on railroad land was inadmissible, for the reason that this issue was not presented to or first considered by the condemnation commission. Therefore, it argues, the district court lacked jurisdiction of that subject matter. The trial court seemed to find merit in that contention and felt it erred in accepting evidence of damages to personalty and, therefore, should not have submitted a separate verdict as to that item.

In an appeal from an award of a condemnation commission the district court hears the matter de novo and has jurisdiction of the person of all parties brought before it by proper notice, and of the subject matter of all property damaged as a result of the condemnation, regardless of what matters were improperly considered or overlooked by the condemnation commission. Eggleston v. Town of Aurora, 233 Iowa 559, 10 N.W.2d 104; Wolfe v. Iowa R. & L. Co., 173 Iowa 277, 155 N.W. 324; Hall v. Railway Co., 141 Iowa 250, 119 N.W. 927; McCall v. Iowa State Highway Commission, 217 Iowa 1054, 252 N.W. 546; Cook v. Boone Suburban Electric Ry. Co., 122 Iowa 437, 98 N.W. 293; Felker v. Iowa State Highway Comm., 255 Iowa 886, 124 N.W.2d 435; 27 Am.Jur.2d, Eminent Domain, § 470, p. 394.

In Eggleston v. Town of Aurora, supra, this court held that on appeal the trial was de novo and even the failure to make one of the equitable owners of the land being condemned a party to the original proceedings would not prevent such owner from being included in the appeal and an award of damage made to her. It was stated therein at page 563 of 233 Iowa, at page 106 of 10 N.W.2d: 'It is, of course, imperative that all interested parties have an opportunity to be heard. * * * The matter was triable de novo in the district court and her rights were in no way jeopardized because she was not made a party in the original condemnation proceedings wherein the sheriff's jury set an allowance for damages.'

In McCall v. Iowa State Highway Commission, supra, the court held, the fact that the condemnor in the condemnation proceedings before the sheriff's jury described only the property to which the condemnee had the record title, did not prevent the condemnee On appeal from recovering damages to the entire farm by showing equitable ownership of other land, which together with the land owned in fee composed the whole farm.

We have also held, as appellant contends, when the condemnor appeals and the condemnee files a petition asking for damages in excess of that allowed by the condemnation commission, the condemnee's petition becomes a counterclaim. In Felker v. Iowa State Highway Commission, supra, at page 890 of 255 Iowa, at page 438 of 124 N.W.2d, this court said: 'R.C.P. 215, 58 I.C.A. provides that a party may dismiss his own petition or counterclaim at any time before trial has begun; but he may not dismiss an opposing counterclaim. * * * we think the plaintiffs' petition here, when the defendant had appealed from the award, was in substance a counterclaim.'

In the case at bar condemnee's petition asked for further damages and claimed damages to use-connected personal property which had been ignored by the condemnation commission. This claim might also be classified as a compulsory counterclaim in the trial of the appeal, as it indeed arose out of the same transaction or occurrence, the condemnation of condemnee's property. If so viewed, the condemnee would be forced to assert his extended claim therein or lose all right to be heard on elements of damages overlooked by the commission.

In Des Moines W. W. Laundry v. City of Des Moines, 197 Iowa 1082, 198 N.W. 486, this court recognized that merely compensating one for the property taken from him does not amount to just compensation or does not make him whole, but held such a person is also entitled to recover in the condemnation proceeding for damage to other property interests affected by the taking. In the discussion at page 1090 of 197 Iowa, at page 490 of 198 N.W., it is stated: 'An established trade or business connected with a location clearly enhances the value of a leasehold interest, and just compensation contemplates this fact. In condemnation proceedings, the word 'damage' embraces more than the mere physical taking of property, and is not restricted to cases where the owner is entitled to recover as for a tort at common law.'

We are satisfied that all of condemnee's property substantially interfered with by a taking in a condemnation proceeding should originally be considered by the condemnation commission, for such is the subject matter of the action. Relevant matters overlooked by the commission can and should be brought before the district court in an appeal petition such as was filed herein. To decide contra would indeed permit a condemnor, by its notice of condemnation, to limit the property interests of a condemnee for which damages...