Wilson v. Fleming

• Citation: 31 N.W.2d 393,239 Iowa 718
• Decision Date: 09 March 1948
• Docket Number: 47128.
• Parties: WILSON et al. v. FLEMING.
• Court: United States State Supreme Court of Iowa

31 N.W.2d 393

239 Iowa 718

WILSON et al. v. FLEMING.

No. 47128.

Supreme Court of Iowa

March 9, 1948

Rehearing Denied May 7, 1948.

Appeal from District Court, Washington County; Frank Bechly Judge.

Richard A. Stewart, of Washington, and R. L. Read and A. B. Howland both of Des Moines, for appellants.

Edmund D. Morrison, Jr., and Alfred E. Baldrige, both of Washington for appellees.

GARFIELD Justice.

Plaintiffs other than Heck own a farm of 298 acres (before the condemnation) southeast of Washington, Iowa. Heck occupied the farm--plaintiffs say as tenant. Defendant railroad contends he was a partner of the owners. Defendant condemned a strip of 9.84 acres for right of way across the farm. (We disregard the fact trustees for the railroad are also defendants.) The strip separates the buildings, except for a feeding barn near the center of the land, from most of the remainder of the farm.

On June 26, 1946, a sheriff's jury awarded plaintiff owners damages of $21,625 and plaintiff Heck damages of $1000. Defendant and later plaintiffs appealed from such awards to the district court. Trial resulted in verdict for the owners of $24,683 and for Heck of $2600, which the court reduced to $2000. The court also allowed plaintiffs' attorneys $3000, of which $250 was for services for Heck.

The farm consists of a central 160-acre square (apparently 162 acres in fact), 40 acres abutting the south half of the 160 on the east, a fractional 80 of 68.68 acres the the east half of which is south of the southwest 40 of the 160, and 26 2/3 acres west of the north end of the 160. The right of way enters the farm from the northeast a little east of the center of the north line of the 160, extends southwest and leaves the farm about the center of the south line of the northwest 26 2/3 acres. Through the 160 the right of way is 175 feet wide, an area of 6.32 acres. Through the 26 2/3 acres it is 200 feet in width, an area of 3.52 acres.

This plat will assist in visualizing the physical 'layout':

RPT.CC.1948105053.00010

(Image Omitted)

The small rectangle near the center of the plat is a feeding barn built about 1935, with a windmill near it. The rest of the buildings are in the northwest corner of the 160. They consist of a large house with about 12 rooms, a barn east of the house, two double corncribs southwest of the barn, two 8-sided cribs or granaries west of the larger double crib, and a machine shed about 10 feet north of the north right of way fence. The buildings have been kept in good condition.

The farm is a combination grain and stock farm. Grain produced on the farm is not sold but is fed there. Cattle and hogs fed on the farm brought over $31,000 in 1946. Fences, all built in the last 12 years, are hog tight. There are about 84 acres of pasture on the farm: 34.1 acres in the southeast 40 (the east 20 acres of this has been farmed and can be put in crop), 20.5 acres near the middle of the souh half of the central 160, 15.7 acres south of the 20.5 acres and at the east end of the south 68.68 acres (the west 5 acres of this 15.7 could be cultivated if some trees were taken out), and 13.7 acres in the northwest corner of the farm. The remainder of about 210 acres was under cultivation in 1946. There is a draw or ravine through the east 34.1 acres of pasture, another running south from near the southeast corner of the feeding barn lot and a stream and draw in the northwest 13.7 acres, the roughest land on the farm. There is a flowing well in this last tract.

The north 80 of the central 160 has the best soil--very productive Grundy silt loam. Most of this 80 was in corn in 1946 and yielded about 100 bushels to the acre. 1946 was an unusually good year however. The crop land in the south half of the 160 produces 5 to 10 bushels to the acre less corn and the farm land in the south 68.68 acres even less corn by about 5 bushels to the acre.

The right of way through the farm is in a cut. At the north farm line, the top of the rails will be about two feet below the natural surface of the ground. At the south line of the 26 2/3 acres such distance is about eight feet. About 500 feet southwest of plaintiffs' land the track is about level with the natural surface. Plans call for a single track although it is one of defendant's main lines over which highspeed trains, up to 90 miles an hour, travel. In the month preceding the trial from 16 to 22 trains traveled over the line each 24 hours.

South of the buildings is a farm crossing over the railroad. The top of the rails at the crossing will be about the same elevation as the ground at the gate along the north right of way line but about 6 1/2 feet lower than the ground at the south right of way gate. For 55 feet of the distance between the south rail and the south gate at this crossing there is an upgrade of 10 per cent. From the end of the 55 feet to the gate the upgrade is nearly 4 per cent.

I. Defendant first contends the verdicts of $24,683 to the owners and $2600 to Heck, reduced by the court to $2000, the amount claimed in plaintiffs' petition, were so excessive as to indicate passion and prejudice of the jury. We think the amounts of recovery present no ground for us to interfere.

Plaintiffs produced six apparently well qualified value witnesses. The average estimate of values of the farm given by them is $83,657 immediately before the condemnation and $48,870 immediately thereafter, a difference of $34,787. Defendant used five such witnesses, perhaps as well qualified although less familiar with the farm. Their average estimate of values is $60,487 before and $50,897 after the condemnation. a difference of $9,590.

The jury could final these are some of the matters that contribute to the owners' damage, measured ultimately by the difference in value immediately before and after the condemnation: About 10 acres of the best land were taken, separating most of the farm from most of the buildings. It will be impractical to use except for pasture two triangular tracts of 6.9 and 5.7 acres of good crop ground north of the railroad. The 9 acre in the southeast corner of the northwest 26 2/3 acres is rendered of little value. There will be 'point rows' along the west side of much of the north 80. The location of the right of way will cause permanently great inconvenience and added expense in the operation of the farm, rendering it less salable and substantially reducing its rental value. The railroad will be a hazard as well as an annoyance because of the noise, vibration, smoke and dirt.

As to the damage to Heck's interest. Defendant took possession of the condemned strip July 20, 1946. The corn thereon was then 'laid by.' It would have produced nearly 1000 bushels and the value of Heck's share would have approximated $600. There is testimony of considerable inconvenience and annoyance as well as added expense to Heck in the operation of the farm during the construction period. The amount allowed Heck by the jury is within the testimony of value witnesses.

Nothing is shown which would tend to arouse passion or prejudice. The verdict for the owners exceeds the condemnation award to them by less than 15 per cent. It is well within the evidence. The jury was taken to view the farm. The trial court approved the amounts of the judgment. The damages cannot be measured with mathematical accuracy but at best can only be approximated. They depend, to a considerable extent, on matters of opinion. We cannot substitute our judgment for that of the jury.

In support of our conclusion, see Kosters v. Sioux County, 195 Iowa 214, 216, 217, 191 N.W. 993; Kemmerer v. Iowa State Highway Comm., 214 Iowa 136, 142, 241 N.W. 693; Cory v. State, 214 Iowa 222, 229, 242 N.W. 100, 103, and citations; Cutler v. State, 224 Iowa 686, 691, 692, 278 N.W. 327; Stoner v. Highway Commission, 227 Iowa 115, 287 N.W. 269.

II. On cross examination of plaintiff Heck and some of plaintiffs' value witnesses and on direct examination of one of its witnesses, defendant sought to show the farm could be more efficiently operated by moving the cribs and granaries to the vicinity of the feeding barn and relocating the machine shed south of the railroad. By another of its witnesses defendant sought to show the cost of removing the machine shed across the railroad would be $750, and the cost of moving the large corn crib and each of the two granaries to the vicinity of the feeding barn would be $910 and $175 respectively. Plaintiffs' objections to these attempts were sustained. Defendant contends the offered evidence was proper because it was entitled to develop fully any facts which might be considered by a prospective purchaser.

Some testimony of this character, though not as to cost of removal of buildings was received. Plaintiffs' first value witness testified on cross examination it is customary to locate storage facilities for feed close to the barns where the feeding is done; a prospective purchaser could well consider relocating or constructing additional storage facilities on the feed lot; if the corn were fed there that would eliminate hauling the corn across the railroad and then back to the feed lot.

Plaintiff Carlton Wilson, who managed the farm for the owners (his sisters and himself), said on cross examination that if cribs were provided near the feeding barn it would be unnecessary to move across the railroad the corn to be fed at the barn and that moving the machine shed south of the railroad would eliminate taking most of the machinery across the railroad, but he had not considered the advisability or cost thereof.

The evidence shows without dispute there is space near the feeding barn for cribs and bins. Also, in addition to the testimony to such effect, it is obvious that if storage...