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Perry v. Iowa State Highway Commission

Supreme Court of Iowa

October 13, 1970

Kenneth PERRY and Louise Perry, Appellees,
v.
IOWA STATE HIGHWAY COMMISSION, Appellant.

Richard C. Turner, Atty. Gen., Henry L. Holst, Special Asst. Atty. Gen., James F. Peterson and John L. Kiener, Asst. Attys. Gen., for appellant.

W. W. Reynoldson, Osceola, for appellees.

Page 418

UHLENHOPP, Justice.

We are required here to pass upon a number of questions which arose in the trial of an eminent domain action.

Plaintiffs owned a 200-acre farm in Decatur County, Iowa. Defendant condemned 17 acres on a diagonal curve through the farm for an interstate highway. Defendant also condemned two acres along the west side and in the northwest corner of the farm, most if not all of which was already burdened by an easement for a county road. The sheriff's jury allowed plaintiffs $16,500, and plaintiffs appealed to the district court. The following from Exhibit A--1 shows the shape of the farm, with the portions condemned cross-hatched:

(Image Omitted)

The farm has good improvements and is nearly all Grundy soil, the best type in the county. The land is gently rolling. Plaintiffs have conducted a grain and livestock operation on it. The improvements are on the east side of the farm. A north-south ditch runs through the middle forty, and, in bad weather prior to the highway construction, plaintiffs got back and forth from one side of the farm to the other by using county roads on the north and south sides of the farm or by going around the north end of the ditch on adjoining land belonging to their son.

The portion taken for interstate highway ranges from 300 to 320 feet in width and is about 1,300 feet long. The portion taken along the west side of the farm is 160 rods long and 50 feet wide (of which 30 feet was previously used for county road), plus a small triangle in the north-west corner of the farm. The condemnation left plaintiffs 49.4 acres west of the interstate highway and 127.6 acres east of it. The portion on the west has no buildings for livestock or feed and no source of water.

The interstate highway cannot, of course, be crossed. In addition, the county highways on the north and south sides of the farm were closed. Presently the shortest route from the east part of the farm to the west part is approximately four and one-half miles, through Van Wert, Iowa.

The interstate highway itself contains 2.4 acres of paving in its course through the farm. Water falling on the highway is drained through tubes onto plaintiffs' land. Some water also comes from the north onto plaintiffs' farm as a result of the project.

Prior to construction of the highway, the west eighty could be farmed north and south its full length. Now the two parts of it contain numerous point rows.

The witnesses' estimates of damages were:

    Witness   Before    After   Damage
          Plaintiff's Witnesses
   Perry      $85,000  $50,325  $34,675
   Hembry     $84,000  $53,985  $30,015
   Brand      $83,000  $53,000  $30,000
   Richards   $80,000  $54,500  $25,500
   Beardsley  $80,000  $55,000  $25,000
   Hullinger  $87,000  $64,000  $23,000
         Defendant's Witnesses
   Huntley  $64,600  $49,600  $15,000
   Friday   $60,000  $44,000  $16,000
   

Averages of Witnesses

   Average of
     plaintiffs' witnesses  $83,167  $55,135  $28,032
   Average of
     defendent's witnesses  $62,300  $46,800  $15,500
   Average of
     all witnesses          $77,950  $53,051  $24,899
   

The jury allowed plaintiffs $24,000, and after a hearing the trial court allowed attorney fees of $3,000 to plaintiffs. Hence this appeal.

Page 419

Defendant urges five points: (1) plaintiffs' expert was allowed to relate prices of other sales without sufficient proof of comparability or adequate foundation, (2) Model Instruction 1.15 should have been given, (3) plaintiffs' counsel should not have mentioned federal funds used for the interstate highway, (4) a new trial should be granted to effectuate justice, and (5) the attorney fees are excessive.

I. Comparable Sales. In trying to show the value of the farm before and after condemnation, the parties introduced evidence of the prices of sales of other farms in the area, under the Redfield rule. Redfield v. Iowa State Highway Commission, 251 Iowa 332, 99 N.W.2d 413, second appeal, 252 Iowa 1256, 110 N.W.2d 397. Both sides relied on two of the same transactions, the Blair-Fears and the Cantwell-Miles sales, and so those sales may be placed aside. The Blair-Fears transaction involved a sale on contract of eighty acres of nearby land, consisting of Grundy and Shelby soil types. The Cantwell-Miles transaction involved a quarter-section farm of Edina soil type about 12 miles away, likewise sold on contract. In addition, defendant showed a Shoemaker-Reynolds transaction involving the sale of 230 acres of a soil type similar to Grundy, six miles away; a Kennety Perry-Jimmie Perry transaction, involving the sale by father to son of ten acres adjoining subject farm; a Redman-Beers sale of 70 acres across the road; and a Slaymaker-Bethards sale of 100 acres of unimproved better land about three and one-half miles distant.

Plaintiffs' expert on comparable sales was Tom Richards, a real estate appraiser, right-of-way consultant, and holder of a realtor's license for 23 years. Since 1946 he has been engaged in real estate sales or appraisals. From 1956 to 1965 he worked for the United States in land acquisition, and attended several real estate apprisal schools. After 1965 he engaged in private appraisal work for a varied clientele including the States of Iowa and Illinois. He has personally purchased farms in Clarke and Decatur Counties as well as in other parts of southern and southwest Iowa.

Mr. Richards' testimony makes clear he endeavored to find sales in the area of farms which are comparable to plaintiffs' farm. As was the problem for defendant's experts, however, this was not an easy task. The evidence indicates that land in the area is spotty, with good farms and poor ones. The experts on both sides went out several miles to discover farms which had been sold recently. Plaintiffs' farm is a good one, and Mr. Richards tried to find sales of similar good farms. He considered a good many transactions. One sale involved a farm as far away as 15 miles. Richards testified:

'All across southern Iowa we all know that land's pretty spotty. We have some top places, and a mile away, you get some poor places. In some cases, right in the middle of the same farm. To make the best comparison I know of, as far as the productivity or the productive capacities of the property, you have to look at similarly productive places. So, if you have to reach out a ways to find more directly comparable sales, I think this is the logical thing to do * * *. This area that I went to, it's north and east of Garden Grove as far as general community appearance and upkeep of improvements, with respect to the land south (of) Van Wert, are very similar.'

The three sales that Mr. Richards settled upon as similar, and to which defendant objects, are the Parker-Hullinger, Wilson-Reno, and McGuire-Coffman transactions. Richards testified at length about the characteristics of these properties.

The Parker farm is a little under 160 acres, and 13 miles from the Perry farm. It has good rich soil, and Richards 'felt it was one that was more comparable to Mr. Perry's than some less productive place would be.' The ASCS corn yield per acre is the same as on the Perry place. The improvements are only fair. The farm has a waterway, as the Perry farm does. This

Page 420

sale took place about a year and a half before the present condemnation.

The second sale which Mr. Richards thought comparable was Wilson to Reno. This farm is about is miles from plaintiffs' farm, near Garden Grove, Iowa, and in a vicinity which compares favorably to the one in question. The Wilson improvements are good, and the land was described as 'good laying'. It consists of two quarter sections of Edina soil, and Richards explained to the jury that Grundy soil is more productive. The Wilson-Reno transaction took place on February 5, 1965.

Richards' third sale was from McGuire to Coffman, of a farm also near Garden Grove. This sale too involved 320 acres of Edina soil, but rougher than the Perry land and having poorer improvements. These differing characteristics were pointed out to the jury by the witness. The McGuire farm is ten miles from subject farm. The sale occurred on January 7, 1967.

Defendant's objection is that Richards was permitted to tell about the three sales without sufficient foundation and without adequate demonstration of comparability. This court has dealt with the problem on a number of occasions. Redfield v. Iowa State Highway Commission, 251 Iowa 332, 99 N.W.2d 413, second appeal, 252 Iowa 1256, 110 N.W.2d 397; Harmsen v. Iowa State Highway Commission, 251 Iowa 1351, 105 N.W.2d 660; Iowa Development Co. v. Iowa State Highway Commission, 252 Iowa 978, 108 N.W.2d 487; In re Primary Road No. Iowa 141, 255 Iowa 711, 124 N.W.2d 141; Belle v. Iowa State Highway Commission, 256 Iowa 43, 126 N.W.2d 311; Martinson v. Iowa State Highway Commission, 257 Iowa 687, 134 N.W.2d 340; Jones v. Iowa State Highway Commission, 259 Iowa 616, 144 N.W.2d 277; Linge v. Iowa State Highway Commission, 260 Iowa 1226, 150 N.W.2d 642; Crozier v. Iowa-Illinois Gas & Electric Co., 165 N.W.2d 833 (Iowa).

The governing rule is thus stated in Redfield v. Iowa State Highway Commission, 251 Iowa 332, 341--342, 99 N.W.2d 413, 418--419:

'For the evidence to be admitted it must be shown that the conditions are similar. 'Similar does not mean identical, but having a resemblance; and property may be similar in the sense in which the word is here used though each possesses various points of difference.' Forest Preserve Dist. of Cook County v. Lehmann Estate, Inc., 388 Ill. 416, 58 N.E.2d 538, 544. Size, use, location and character of the ...


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