63 Iowa 397 | Iowa | 1884
On the west end of lot 1 there is a two-story frame tenement house, which fronts to the north on Cherry street. It is sixty-six feet in length, and extends back to within less' than three feet of the dividing line between the two lots. To the east of .this there is a two story brick residence, which
Defendant, when it caused the proceedings to be instituted, gave notice of its purpose to appropriate lot 2, but when the commissioners appointed by the sheriff to assess the damages inspected the property, they treated the two lots as constituting a single property, and assessed the damages on that theory.
On the trial in the circuit court, defendant objected to any evidence as to the effect of the appropriation of lot 2 on the value of lot 1, or the improvements thereon, on the ground that the proceedings which it had instituted were for the condemnation of lot 2 only, and plaintiff had not by his notice of ajjpeal, or any pleading filed in the case, alleged his ownership oflofc 1, or claimed damages to that lot on account of the location and construction of the railway. It also asked that an instruction embodying the same views be given to the jury. It-also asked the court to charge the jury that, “in order to recover for damages to lot 1, in consequence of the construction or location by defendant of its railway across lot 2, it is necessary for plaintiff to show that he had, at the date of defendant’s appropriation, title to that lot, or some interest in it, and, if the latter, the character and extent of his interest.”
The court overruled the objections, and refused to give these instructions, and permitted plaintiff to prove the damages, on the theory that the two lots as improved constituted one property. It was also ruled by the circuit court that it was not necessary for plaintiff to prove that he had title to either of the lots. We think these rulings are correct. The evidence left no doubt that the two lots were improved and
Plaintiff, then, was not entitled -to prove tbe proximity of tbe depot, or the number of tracks, as independent elements of bis damages. But in determining tbe value of tbe property remaining after tbe appropriation, it was proper for tbe jury to consider tbe use to which tbe portion taken was to be appropriated, and tbe extent to which it would probably be used .for tbe purpose intended. Tbe right which defendant acquires by the appropriation is, to use tbe ground taken to any extent which tbe exigencies of its business may demand; and tbe value of tbe unappropriated portion of tbe premises may be affected very materially by tbe extent to which this right will be used. Tbe evidence in question was admitted for tbe purpose of showing tbe extent to which defendant would probably use tbe ground taken in carrying on its business, and for this purpose we think it was admissible.
IY. Plaintiff' asked a witness bow much if would cost to reconstruct the rear end of the brick building, after it was taken off by the right of way, and put the property in condition for residence purposes. Defendant objected to the question on the ground “that it called for the opinion of the witness upon a state of facts that does not appear under any circumstances to become necessary for the proper use of the property.”
The evidence showed that, as the- road is constructed through the premises, it is about six feet from the south end of the brick bouse to the edge of the cut. Defendant also asked the court to give the following instruction to the jury:
“If you find from the evidence that the defendant has located and constructed its railway across lot 2, being the southerly of the two lots in question, and is now operating the same as so constructed, without the intention to remove, or in any way interfere with the plaintiff’s free and unre*404 stricted use of the brick building spoken of by the witnesses, and that it will not' be necessary at any future time for it, in the repair, construction or convenient use of its railway, to tear down, remove, or in any way interfere with the use of said building by the' plaintiff or his tenants or vendees, you will not allow any sum as damages simply upon the idea of the removal of said building, or of its being hereafter torn down by the defendant.”
The court overruled the objection to the question. It also refused to give the instruction. This action of the court we think was right. The answer to appellant’s position is’, that it is seeking by this proceeding to appropriate the whole of lot 2, and, by virtue of the proceedings, when they are completed, it will acquire the right to use and occupy the whole of the lot. If it did not require the whole of the lot for the use of the road, it might have taken less than the whole of it. The law gave it the election to take the whole, or but part, and it elected to take the whole; and, in view of the rights which it acquires to occupy and use the whole of the lot, it can not have the damages assessed on the theory that it will in fact use but a part of it.
That the instruction, as an abstract proposition, is correct, is not doubted. The court in its instructions told the jury that defendant by the appropriation acquired substantially the rights enumerated in the instruction asked, but did not tell them that the fee of the land remained in plaintiff. Appellant assigns the omission as error.' We do not regard the fact that plaintiff is not divested of the fee by the appropriation as of any practical importance in the case. The interest acquired by defendant by the appropriation is the right to occupy and use the surface of the land perpetually for the purpose for which it is taken. It is true that the land would revert to plaintiff, or his grantee, in case it should cease to be used for the purpose for which it is taken, but the appropriation is made on the theory that this will never occur; and there is no evidence of the existence, either on the surface or beneath it, of any materials, such as surplus earth, stone, coal
2. What was the fair market value, in cash, of plaintiff’s entire premises immediately before the defendant’s right of ■way was located across lot No. 2?
3. What sum do you allow as damages over and above the value of the property actually taken?
4. Do you find that the defendant has already located and constructed its road, and that it is now operating the same?
.5. If you answer the last question in the affirmative, you will then answer whether its road, as constructed and operated, touches the brick building upon the premises, or whether any portion of the same Was torn down or removed in the construction of the road?
6. Do you find that the defendant intends at any time to change the location or construction of its road, so as to make it necessary to tear down or remove any portion of the brick building? |
7. Do you find that for the necessary or convenient use of defendant’s road it would be necessary to tear down or remove any portion of the brick building?
The court refused to so direct the jury. We think this ruling was correct. The fourth, fifth, sixth and seventh questions were asked on ¡the theory that defendant had the right to show that, notwithstanding it sought to condemn the whole of lot 2, its purpose was to make an actual appropriation of but a portion of it. As we have already seen, by the condemnation proceedings it acquires the right to use the whole of the lot, and it cannot be heard to say, while prosecuting
As, owing to the manner in which the improvements were made, the two lots constitute a single property, defendant was not entitled to have the damages assessed with reference to the value of lot 2 as a separate property; and for this reason the first question was immaterial. The third was properly refused, for the reason that it does not call for a finding upon an ultimate question of fact; and an answer to the second would have given no aid in determining the correctness of the general verdict. Other matters were discussed by counsel, but we think we have disposed of all questions fairly presented by tbe record. The judgment of the circuit court is
Affirmed.