Luthi v. Iowa State Highway Commission

I find myself unable to agree with the majority opinion and therefore respectfully dissent.

The opinion says:

"Much of the damage to plaintiffs' original farm had already been caused by the separation of the land in the north portion by the railroad right of way through the land long prior to the time of these condemnation proceedings. It is, therefore, clear that the damage to plaintiffs' farm by the construction of the highway is not as great as it would have been had the farm been in one entire tract at the time of the condemnation for the highway."

With this statement I cannot agree.

In looking at the plat set out, one finds that the projection of Highway 88 thru the farm served to divide most of the fields which had theretofore been capable of being farmed without the inconvenience of point rows. It was not the railroad but the highway that divided the land into these small, separate pieces. To get a fair idea of the damage one need but look at the plat to see the manner in which the highway divided the land. The majority opinion emphasizes the fact that there were only 9.63 acres of unimproved land taken for highway purposes. I quote:

"It is our conclusion, however, that a verdict of $6,000 for the unimproved 9.63 acres, under the record in this case, is grossly excessive and should be reduced."

The number of acres the highway commission takes, in my judgment, is but one of the elements of damage to be considered. The writer has had some experience in farming and knows, as everyone must know, that when you divide a tract of land into small parts the problem of farming becomes a great deal more difficult and more expensive. The hazard of crossing a paved highway in conducting farming operations is well known, and this court can take judicial notice of the fact that there will be much traffic, at a high rate of speed, along this highway.

The appellees introduced six witnesses, men familiar with land values and with the farm involved in this action. Appellant introduced five witnesses.

From appellants' brief I quote the following two statements:

"The average difference in value taken from the testimony of all of the plaintiffs' witnesses, amounts to $10,276.66."

"The average difference in value, or damage to the plaintiffs' farm as testified to by the defendant's witnesses, was $3,485.80."

An examination of the evidence of these various witnesses shows that they did not exactly agree in regard to the value of the farm before the building of the highway and after its construction. This is but natural. After all, these witnesses are testifying to their own opinions. Plaintiffs introduced witnesses who testified that the land before the construction of the highway was worth $110 per acre, some $105, some $100; that after the construction of the highway the land was worth $60 and $65 an acre. Some of the defendant's witnesses testified that the land before the construction was worth $100 per acre and one placed it as low as $75. Some of the defendant's witnesses testified that after the construction of the highway the land was worth $88 per acre and some placed it as low as $60. One of defendant's witnesses testified that the damage was $3,756, another that it was $2,700. So we find there was evidence before the jury, evidence of defendant's own witnesses, upon which the jury could have found the land was worth $100 per acre before the construction of the highway and only $60 per acre afterwards, or a total damage in excess of the amount allowed. Therefore, it seems to me that the record in this case shows the verdict arrived at by the jury, instead of being the result of passion and prejudice, was the result of careful and mature deliberation, based upon competent evidence.

The opinion cites three cases. Let us turn to them.

The first is that of Jenkins v. State Highway Commission,208 Iowa 620, 224 N.W. 66. In that case the highway crossed the land. It did not destroy any buildings and apparently did not divide the farm into small pieces. Not quite 14 acres were used. The jury returned a verdict of $20,000, which is on a basis of a little more than $1,400 an acre; in other words, more than twice the amount allowed in the case at bar. In the Jenkins case there was no showing of any damage other than the direct crossing of the farm by the highway. It is quite different to say that an allowance of $1,400 per acre is excessive than that $600 an acre is excessive in the case at bar, where the highway cut the land into various parts.

Parrott v. Chicago Railway Company, 127 Iowa 419, 103 N.W. 352, was a case in which the railroad company was widening the right of way. It was not a new crossing of the land but simply the taking of a small fraction of an acre. This court did not reverse the case but rather reduced the amount.

In the case of Youtzy v. City of Cedar Rapids, 150 Iowa 53, at page 57, 129 N.W. 351, 352, Justice Weaver wrote the opinion, saying:

"The amount allowed the plaintiff would seem to be liberal, but, in view of all the evidence, it is not so large as to clearly indicate a verdict influenced by passion and prejudice," and affirmed the decision of the lower court.

I think the rule which has been adopted by this court, of reversing the case where the verdict is clearly excessive, is a good one. Under our procedure in cases of this kind we leave it to the jury to fix the amount of the damage, and this court should not interfere with the jury's verdict unless it is clearly shown that it is excessive and is based upon passion and prejudice. In the case at bar no such record confronts us, as I read it, and I would affirm the verdict.