*1 84 a case ad- be is not in which court complaint to This
already the first held its lan- covered matter in own pointed equately out that groundless. have also We essential; Piano case Co. guage. Such is Waltham intent is ill will or wicked Co., 728, Iowa wrong- Lindholm Furniture 168 “a v. may infer malice from jury 741-742, 1040, There 150 N.W. 1044-1045. just or excuse.” act without cause ful was as an affirma- Corp., asserted agreement 199 an McCarthy P. Cullen v. & Son J. The trial court instructed 362, also tive defense. (Iowa 1972). 369 See N.W.2d Co., the defense and the defendant averred 261 that Claude v. Weaver Construction you proved to 139, if the defendant has 1225, (1968). “that 158 144 Iowa N.W.2d evidence, preponderance con- trial court did not err The agreement made . . an nection. then, . the de- in that . . case liable,” “if the but fendant would not be ap After but IX. trial before you prove has defendant failed to taken, the filed peal was three landowners that there preponderance of the evidence attorney trial fees motions in the court for . then the agreement . . such did did rulings, but not secure nor This court liable.” defendant argue the motions treat the mo here. We ade- proof was held that burden tions waived do not consider by the See quately covered instruction. Hay of them. Merle merits Knudsen v. Ungles, v. Engle also Plaza, Inc., (Iowa 160 N.W.2d instruction We no such 879. N.W. 1968). here. error, affirm Finding no we reversible exception Telephone Company’s trial court. judgments entered sustained, judg- and the should have therefore reversed. ment should Affirmed. except All UHLEN- concur Justices HOPP, who J., dissents.
UHLENHOPP, (dissenting). Justice except opinion
I in the concur court’s portiqn instruction 5 relating for the Dolezal, hus Anna DOLEZAL Frank and the result. wife, Appellees, band and trial court defined instruction evidence,” nei- “preponderance but Iowa, RAPIDS, CEDAR CITY OF Iowa, Airport did Rapids, Com nor elsewhere ther that instruction Cedar mission, Appellants. had expressly jury who tell the respect the is- proof the burden of with No. 55403. Company expressly Telephone sues. The Supreme Court Iowa. excepted ground. on that July 3, 1973. important proof The burden Rehearing Sept. 1973. Denied case; vital. in a been called matter it has York, 237, 136 Hardee v. 262 N.C. S.E.2d expressly A tell
582. trial court should proof, party burden of has the
especially called when matter is rule by exception. See
court’s attention
196, Rules of Civil Procedure. *3 Dallas,
William Rapids, M. Cedar appellants. Nolan, D. Nolan and C. T. John
City, appellees. MASON, Justice.
Plaintiffs, Dolezal, Frank and Anna hus- wife, appealed band and to the district damages by from the assessment of acqui- condemnation commissioners for the sition of a clearance easement and certain rights directly affecting of construction buildings 45.37 land and acres of located thereon. From the award based on court, verdict the district defend- ants, City Rapids and the Cedar Ce- Commission, Rapids Airport ap- dar pealed court. to this Defendants do not the amount of assert Rather, er- jury’s verdict excessive. visibility and reduce hazards landing rors in of evidence denial of admission requested assigned. Rap- off of aircraft at the instructions are Cedar * * Airport, ids plaintiffs purchased farmland Nutter, Rap- The court immediately City located the Cedar of Oakland east Cal.App.3d 752, Cal.Rptr. Airport, airport ids Municipal 353, points that, operated City of out “A has owned distinction defendant — manage- recognized ‘avigation’ Rapids, Cedar under the between an ‘flight’ Airport Rapids ment easement and ‘clearance’ or ‘ob- of defendant—Cedar struction’ gravel A road Commission. north-south easement.” boundary along runs west following appears statement foot- air- separating the farm from the note 13: port. way A railroad and tracks *4 are road located between the and (5 “In United v. Brondum States Cir. premises. 642, The land has never been used 1959) 272 F.2d the court observed ‘ * * * 14, anything farming. for but July respect latter, Since with to the 1959, the farm had been zoned D-Rural right to growth cut trees and natural to a County zoning under a Linn ordinance. prescribed height and to remove man-made proceedings only The condemnation affect prescribed height a obstructions above * * * structures, plaintiffs’ existing two home to as a is sometimes referred and a “flight barn. Graphically obstruction easement”. accurately, Judge describes the Estes 4, 1970, Rapids of City Cedar June “ceiling”. a purpose easement as The proceedings instituted pursu- condemnation ceiling margin is to increase the 472, Code, ant chapters to 330 and The safety flying assuring glide for by acquire a plain- clearance easement over growth will be zone free from natural right tiffs’ land and to obtain the install pilot’s man-made vi- obstructions and the lights maintain double on obstruction designated sion unobscured above a alti- buildings belonging ap- plaintiffs. tude. plication for condemnation by filed may avigation “An may easement not City expressly provides: provisions dealing obstruc- contain with acquisition “For tions, but, easement, condemnation of unlike a clearance a provid clearance or obstruction easement flights express permits terms it free ing a approach clear zone at the east end provides question. just the land in It not of the Runway, Rapids East-West Cedar flights public highway in the air as for Municipal Airport, the Southeast —in be nec- that sense no easement would end Runway, of the Northwest-Southeast essary; provides flights may it for be Cedar Rapids Municipal Airport, amount to a frequent so low and so as to ” the continuing right construct, operate, property.’ lights maintain double obstruction appointed 15 ap- On commissioners June be mounted on a house and barn shown praised consequent damages filed plat covered the clearance easement their award in the amount of $3200. at the east Runway. end the East-West i( plaintiffs appealed Thereafter n ‡ court, alleging district 1 division applicant “6. specifically states petition the value of the land had avigation or the particulars. diminished in five di- flights make free over the land 2, plaintiffs sought vision a writ of manda- sought required. nor compel mus to defendants to con- institute purpose
“7. The sole of the acquisition proceedings acquisition demnation for the of the clearance improve easements is to avigation of an easement. The trial court
88 lish land improper fair market value of the be- joinder there was
concluded Any fore factor that plaintiffs’ petition or- condemnation. of actions buyer impress willing purchasing petition sepa- 2 dered division of farm, competent, is both mate- equity action for writ otherwise rately docketed anas rial for this Van Accordingly, pro- purpose. and relevant case of mandamus. Company, Horn 182 on division 1 v. Iowa Public Service ceeded to trial before 365, Thus, (Iowa 1970). fixing A N.W.2d plaintiffs’ position. verdict plaintiffs present in the were entitled to evidence plaintiffs’ damages amount highest concerning the use of the $46,500 moved and best was returned. Defendants Highway property. Reeder grounds trial on the the court Iowa State new v. 839, Commission, (Iowa 166 N.W.2d ruling in its the introduction erred 1969). in Mohr re- As this court stated evidence and refusal instructions Commission, Highway quested by The motion Iowa defendants. State 147: N.W.2d overruled. “In judg- general, all latitude is al- appeal from final considerable Defendants lowed in ments and entered favor of the admission of evidence decisions capabilities grounds re- a condem- plaintiffs, assigning three affected may permitting nation and the uses to rea- (1) court erred versal: sonably express adapted. It true there must value witnesses *5 prior present be a for opinions to the the demand for the land such as value of farm assumption expectation such the that its uses or de- to condemnation on reasonable mand highest industrial rather in the near It must be re- and best use was future. reasonably it was is to agricultural than because membered too such evidence be only in- it has on probable rezoned for considered for effect the would be the use, taking, an enhanced at the the placing dustrial market value time of proximity the farm of its at some future time. value on because airport; erred in ad- (2) to the the court City Rap “This Ranck v. of Cedar opinion testimony of a mitting the witness ids, 563, 1027, 565-566, 134 Iowa 111 N.W. predicated his as expressly conclusion who 1028, applied: states the rule we have the of the farm after condemna- value ‘ ** * is to have the the owner entitled tion, which the land part, on burdens to jury all capabilities informed of the only if subjected an avi- would have been use, if property, any, or as to business acquired; and gation had been devoted, been and of it has which refusing the defend- erred in (3) court reasonably every may to which use it requested 1 3. ants’ instructions applied. this rule in- adapted or And adaptation value cludes the proper basis I. for any legitimate purpose property for damages award of in this case is the dif business, though been it has never so even ference in the plain fair market value of used, inten- present no and the owner has immediately tiffs’ farm and immedi before (citations).’” it such tion to devote use ately after condemnation. Crozier v. Company, Iowa-Illinois and Electric Gas permit Although a landowner 833, (Iowa 1969). 165 N.W.2d highest use of the ted and best to show extent to which the farm has been dam purpose a for property involved aged by reduced in value the obstruction has not theretofore property which the light clearance installation and easement is profitable use must be used, more by the ultimate to be determined out on by law to be carried one allowed jury. zoning Thus, existing if re premises. use, profitable the more preclude strictions they If prove are to dimin cannot be considered such use ordinarily value, plaintiffs estab- initially ished must by arriving urge at opinions its decision. At ants ex- time, perts if is a as same there reasonable to the value the land immedi- probability zoning prior ately appropriation classification will be should future, changed probability in the near have been stricken because based should be in determining considered assumption highest on invalid proper value. High- State use prior best of the farm to condemnation Jones Comm., 616, way 625-626, 259 Iowa purposes involving was industrial N.W.2d 282-283. The court trial em- erection of structures which ex- could have principles bodied these in its height instruction ceeded the imposed by limitations reads easements; follows: the clearance and that erroneously permitted witnesses “You determine the should fair rea- opinion express the was reasonably prob- property sonable market value of the able the farm would be rezoned the near highest volved on the basis of the and best future for permitting an industrial use use the property reasonably to which was buildings objects construction of a adapted the time of the condemnation on height in excess of those limitations im- 15, 1970. June posed by the easement. highest “The use best to which the argue Defendants objections reasonably adapted must a testimony experts value permitted by zoning use classification should have been sustained since facts 15, 1970, permit- in effect on or a use June related the witnesses were insufficient zoning ted different classification as a matter ba- of law to serve factual as a 15, 1970, on there was reasonable June opinions expressed high- sis for the that the change aof in the near future
probability est and use best farm June zoning The burden classification. light Also, industrial. proof plaintiffs establish law, ruled, court should as matter of *6 preponderance of the evidence the reason- plaintiffs sufficiently prove failed to it was a zoning able of classifica- probability such reasonably probable taking the at of time change.” (Emphasis supplied) the land would be the rezoned in near fu- agricultural from an ture to industrial an was therefore instructed to de- classification. (1) highest termine: what is the and best plaintiffs’ use to which land was “reasona- First to be considered is defend condemnation;” bly adapted the of at time opinion ants’ contention relative to the tes (2) zoning regulations govern- whether the timony highest the and best use to which ing presently permit highest the land the plaintiffs’ adapted farm was prior to con property and best use to which the was (or demnation at the time taking), of was reasonably adapted a proba- or reasonable industrial, agricultural. not the outset At bility exists that in zoning the near future it necessary express significance the Hence, a will accommodate such use. un- that, of assuming the fact was the land proved less plaintiffs by preponderance a adaptable zoning to industrial use the of the evidence there was a reasonable changed permit use, laws were such probability highest of rezoning, the proceeding condemnation di could have best use of land the here involved was for minished the value of farm aside agricultural purposes, as the farm was trimming the of trees erection of zoned rural the at time of condemnation. lights possible only if it the were prior appropriation giving rise to this case inferentially Defendants the concede buildings objects construct on the land highest and best use of the farm before the affected in a in easement excess of proper present issue case. But, error, first assigned height imposed defend- limitations If thereby. any portion building or structure or prospective of “No uses the actual and
both twenty a height exceeds of limited thereof which prior to were condemnation structurally imposed by (20) feet shall be erected or to those restrictions similar easement, feet (400) not altered within four hundred plaintiffs have clearance existing $46,500. projected line or center damaged the amount of been strip a pro- proposed runway landing or for dis- words, has condemnation In other eight tance hundred feet from the way qualified (800) ceeding negated or airport Beyond a dis- landing or field. to which highest and best use “the eight from the (800) at tance of hundred feet reasonably adapted was building airport landing or field or 1970? no of condemnation” time June any portion structure thereof shall be plaintiffs’ land submit Defendants height would in- erected to a exceed “adapted to legally neither nor physically landing with take a terfere off or buildings thereon the erection angle plane glide (1) with of one foot a height in use a excess dustrial at forty every feet horizon- vertical (40) De- by the easements.” which was limited tal, computed glide beginning such to be as the land premise their conclusion fendants boundary airport or land- at the line of the adapted physically any industri- not ing field.” testimony water sewer al use on Assuming farm. defendants’ calculations are reasonably not available on brief, law, approxi- as stated in their assert, correct “as matter of Defendants percent mately 52 land within adaptable not for industrial land was then through limitations of 21 feet use,” and water. easement of sewer absence subject slightly more plaintiffs and 61 feet was thus The valuation witnesses time of con- would burdensome restrictions sewer and water defendants testified Consequently, defendants con- operate factory. How- demnation. necessary not reduced ever, clude the farm has stated none of the witnesses law, value, as matter of since the limita- use adaptability of land to industrial imposed permit tions dependent upon presence of sewer was, concerning in the land to used manner light testimony water. been, past. other, might attri- used important seemingly equally land, proximity butes of the such requires validity that conclusion railroad, public airport and highway plain- a further of whether determination availability gas, it natural could *7 have based tiffs’ valuation could witnesses law, held, physi- as a matter of it was damages opinions plaintiffs’ their impossible for cally to use land imposition height restrictions purposes. dustrial percent remaining 48 of the affected latter of de- phase To understand the any Again, tract of land. we note first fendants’ contention under the initial value for substantial diminution impossibility- assigned legal solely —refer- plaintiffs may error — recover must stem -pertinent to the state ence must had height imposed over from the restrictions county zoning statutes and the ordinances plaintiffs’ easement. land the clearance 1970, prior enforce and on June tenuous provisions of Defendants advance somewhat date of Two condemnation. support of it argument in their assertion country applica- zoning ordinance were per- 48 for the other plaintiffs’ legally impossible ble to the land was zoned was farm: type adapted to a “D-Rural,” the land to be precluding any prop- cent of use of the by the clear- precluded erty purposes. for industrial now A second use industrial effect, They, in invert the XX, provision, ance easement. 4 of was subsection Article witnesses, argued logic plaintiffs’ who introduced in evidence defendants uses adaptable farm to industrial was reads as follows:
91 airport. aware of the proximity existing to the restrictions then un- of its because XX, proximity of der county the close Article 4 Defendants contend Subsection of the ordinance, zoning airport in made it “le- and did the land to the in fact consider arriving them in gally impossible” opinions at the time of condemna- at their as to the diminution remaining percent of the in value use the farm. any in- subject gave testimony: land One the witnesses prohibited by the purpose dustrial terms “Q. Yager, Mr. assuming ad- without the easement. mitting that there flight was not this ease- ordinance, ment set out in the zoning Defendants refer the court to feet from each side of the center line and chapters provisions of 329 and edge airport, 800 feet from the east of the Code, procedures prevent which define appraisal would your damages have been any the erection of or to remove structures higher or lower ? protruding ground above the which would tions of this easement on portion change basis of its own stall possible” instituted here. itated the kind height the limitations of the instant ease ment, farmland for an industrial use cient create off at the air Defendants’ unlikely plaintiffs would space necessary construction of buildings exceeding flight defendants to use the zoning, airport. Any attempt airport of aircraft argument Hence, terminology. argue, land, such condemnation the statutes hazard, buildings exceeding for the safe and effi remaining industrial given would have it must fail on the landing successfully in- height obstruct do Although “legally proceeding particular purposes. involving requisite percent use the precip limita- pro- im it pert witnesses were insufficient to furnish expressed. tion that the facts related aid defendants in an adequate foundation for the of structures which could have exceeded use of the farm en ance plaintiffs’ experts should have been strick- would say approximately $12,000 higher.” Defendants’ contention the “A. Because of the area because such height invalid industrial easements without merit. [*] foregoing [*] limitations assumption purposes involving prior opinions sustaining determination imposed by to condemnation was highest were based on their conten- opinions involved, the clear- does opinions and best erection not ex- I contrary, hibit such endeavor. On the This statement of law announced Ber legally possible for one to use Bernhardt, nal v. 180 N.W.2d remaining subject acres now to the clear- (Iowa 1970) also adverse to defendants’ purpose. ance easement for industrial position: imposed by quali- Additional restrictions “Before a witness who has been expert pertinent clearance easement could not have “addi- as an fied field can *8 tionally” farm, express opinion particular reduced the value of the if his on the issues directly involved, by county the land testifying affected whether in he whole zoning part knowledge ordinance and the area or in personal from his subject they the easement were response hypo- coextensive. But and observation inor to a not, were question, witnesses consid- upon thetical the facts which the acres, ered the remaining opinion fact the unaf- is based must be stated the wit- fected zoning subject hypothetical question. ordinance but ness or in the From easement, reasonably adapted court, were this evidence in in- the first stance, industrial use at the time of the can determine whether the factual significantly, opinion condemnation. More the wit- foundation sufficient for a valid testimony they nothing nesses’ indicates or the answer would be more than and the trier of guess, << >(c conjecture or 4« n mere opin- Now, “Q. you what do base can determine fact, last instance in upon, ion Mr. Zeman? alleged his con- justify facts whether rejection of acceptance The clusion. i(% n Jfi depend upon testimony does not opinion Well, right-of-way, “A. railroad alone. qualifications expert’s abstract it, your freight way to access to your * * * also [citing See authorities].” you can coming; And see airline. its 492, 495 Rausch, N.W.2d Albrecht v. day. that every 1972). (Iowa leged facts pressed. valid factual foundation It is obvious opinion. determined justified It then under the question in the first properly sufficient whether the record the trial opinions instance the submitted ex- al- ble, property is considering railroad “ * * * (< # “Q. agricultural n * * * siting [*] that be a located on a railroad or access if application to industrial use ? fact favorable that a readily availa- factor in rezoning piece and a ruling was correct. trial court’s “A. it.” Favorable to witness, Yager, Another Mr. Lowell who Therefore, adaptability question part expert, in valuation testified placed properly be- uses industrial follows: plaintiffs further trier fore probability “a reasonable there was showed “Q. you are with where And familiar zon- future of the change in the near aof. change zoning there from ru- has ing classification.” ral industrial other counties—. permitting witnesses to ond ions first Next as to whether it was assigned contention to be error, that the court considered, raised under defendants’ express then, reasonably is the sec- erred prob- opin- dustrial “A. “* have [*] I am familiar in type zoning. [*] changed from rural other areas where light farm able the would be rezoned within Now, your “Q. are what the factors moreover, use; future for industrial near opinion that would lead to the reasonable ruled, should the court as matter probability rezoning the Dolezal law, plaintiffs failed to show sufficient near within future reasonable proof probability the reasonable of a zon- 15, 1970; as of what are some June ing change. on the Dolezal farm that would conditions you lead The Dolezal belief? A. Zeman, Joseph a member of the Mr. airport, near property located because Commission, County Zoning gave the Linn area, noise factors would indi- following testimony: cate for light that it would be more suited Now, property than it would Zeman, industrial residen- “Q. Mr. state whether or types property. tial or Also other be- your opinion the Dolezal farm on siding, cause is there 15, 1970, rail railroad prob- there was a reasonable June present time, indicate this would ability of rezoning that farm within the probabili- could have industrial use and the upon near future as of that proper ap- date ty changed that it could be an industrial plication for commercial and or industrial *9 area. There are also some industries in uses. that farm area—the service outlet * * there; heard the cabinet con- we’ve about Yes, “A. I think it company could be. struction that is there heavy equipment operation in that’s this eighty acres of land located one-half mile immediate area. from plaintiffs’ farm be rezoned from agricultural to industrial only use a few “Q. gas that there’s natural days prior trial; to this industrially that premises, available to the would that have property zoned stockyard as a used was Yes, any effect? A. it would.” adjacent plaintiffs’ situated farm; expert A second for that a plaintiffs witness commercial cabinet company and a heavy equipment testified: operation were located in close proximity plaintiffs’ land. thougm what “I have testified as to I was the fair and reasonable market value The court did not in overruling err immediately prior of the Dolezal defendants’ testimony motion strike this IS, to the condemnation on 1970. June Yager Mr. Schlaegel Mr. assump- That valuation was on the based ground urged for both related facts suffi that, they application tion in the made cient to afford opinions foundation for the reasonably proper- near future to have that expressed. These facts taken into consid ty use, would rezoned for industrial it eration the witnesses in at arriving probably be rezoned industrial.” their opinions as to the probability aof zoning change adequate furnish founda
Timely interposed by objections were de- tion opinions expressed. for the was It testimony of the fendants’ counsel proper permit the jury to consider quoted herein, at the three witnesses whether justified opinions those facts plaintiffs’ defendants close evidence expressed. Bernhardt, Bernal v. N. testimony moved to that stricken W.2d at 441. from record. These Kaperonis statements from plain- previously It determined has Comm., Iowa Highway State generated question a for trier of
tiffs
43-44,
284, 287,
99 N.W.2d
are appropri-
plaintiffs’
fact on the issue of whether
ate:
subject
Article
land not within
area
XX,
zoning
or-
county
subsection
only
“This means
that the
matter
adaptable
reasonably
dinance was
properly placed before the trier of the
re-
Plaintiffs were also
dustrial uses.
facts
it
to make such decision
its
quired
preponderance of
establish
best
judgment warranted.
It
not
does
probability of
reasonable
evidence the
that,
question
mean
because
was sub-
zoning
in
change
in the near future
it
jury,
mitted to
was bound to decide
permit
As
court
use.
industrial
adaptibility
that
there was
for industrial
Highway
v. Iowa State
stated
use,
or if
so found that such use was so
Jones
Comm.,
at
sider the of a Defendants conten price assigned tion that arriving the near at under first error future plaintiffs’ If re- question the land.” were valuation witnesses should affirmative, highest permitted their opinions have been to base solved part upon proximity the farm to best use to which land was rea- sonably However, airport. alleged adapted at the time error of the condem- purposes. by proper objection was not raised nation for industrial or mo any stage proceedings in the upon addition to the facts trial court. expressly witnesses based their opinions, county point At did alert the trial the record zon- no defendants shows contending proximity ing had commission recommended *10 94 acquisition of improper expressly excluded the airport was an factor
to the land of any fly to aircraft jury. right record over consideration in Defendants insist presents nothing review condemnees. this in acquire right engage v. did not See State contention. Schur as 732, man, (Iowa 1973) activity a condition of create N.W.2d 735 danger. Williams, (Iowa, 207 N.W.2d State v. April 1973). filed acknowledged the dis- judge The trial every contention considered We flight ease- tinction clearance and between eight in the by defendants brief raised plain- 2 of ments when he ordered division assignment
points under before urged separately tiffs’ docketed petition to assignment reaching the conclusion equity mandamus. for writ of action merit. without again gave recognition The trial court and third as- Defendants’ II. second ruling mo- in defendants’ on distinction error, argued in divi- jointly signments of plaintiffs’ paragraph tion 6(d) of to strike brief, will be considered 2 of their sion alleged petition. Plaintiffs had rulings separately below. One arises paragraph that one under attack the refusal and the other from on evidence had premises particulars in which their Error in each requested instructions. account was on value diminished legal proposi- predicated instance is on premises exposure plaintiffs’ “the damage the elements of to be patterns flight flight to lower travel in a of the dimi- considered determination leaving the airplanes approaching are property in value nution condemned Rap- of Cedar municipal airport aforesaid rights nature of the limited exact ids, Iowa.” imposed upon acquired burdens proceedings. the condemnation ruling In the court said: its plaintiffs’ otherwise, flight defendants contend the travel on Stated “The effect of permitted rulings improperly of the court an element is not property interests proper damages return determining plaintiffs’ diminution damage in plaintiffs’ acquisition of compensation value of because for defendants’ by way rights were not easement a clearance or obstruction to be acquired proceed- under It an element the condemnation of condemnation. damage for ings; a diminution in because of low measure of value in the considered easement.” thereof, avigation flights, fear over of an level condemnation premises pro- in a only could be recovered the ease- limitations of scope and ceeding flight brought acquire or avi- condemnation by the rights ments obtained gation easement. 1, 2 and plaintiffs’ exhibits are set forth rights are argument These their in evidence. connection with 3 which were clearance or assignments right support of these (1) combined defined as prem- distinguish error be- properly defendants easement over obstruction run- the east-west tween clearance easement ises east end of or obstruction at the to a right avigation flight on way airport; (2) the one hand at the See easement footnote or obstruction other. clearance end City Nutter, Cal.App.3d at plaintiffs’ premises of Oakland the southeast runway at the air- Cal.Rptr. at 353. Defendants the northwest-southeast construct, oper- point application out the fact port; for con- (3) lights specifically rights demnation double restricted ate and maintain instruction and barn on acquired by proceedings condemnation house be mounted easements, the nec- together with premises clearance and obstruction essary electrical circuits to *11 supply the pow- [*] [*] [*] er lights. No, topping “A. the of the trees. The right topping buyer
The to a make the clearance or obstruction of the trees would necessary But, possibility. and think that was a the safe efficient this flight of I took landing topping aircraft off of the trees was a factor at runway end of the into east east-west consideration. and at the southeast end of the northwest- words, buyer, how- “Q. In other runway southeast in the ap- described ever, inquiry of the easement he made plication right to consist of the to have the rights ac- would learn that there no objects space air free from structures lower, quired is that A. fly correct?
protruding ground above the surface of the into con- thing that would be taken greater heights at specified than in defend- you getting sideration if are into avia- ants’ application. get aviation right didn’t into the —I rights. Defendants admitted in their pleadings that they did pursuant trim to the clearance easement trees situated plain- [*] “ [*] [*] premises tiffs’ height to a they so that you “Q. That what the think is conformity were in with the easement ac- buyer proceed would—a would on the as- quired and will continue to trim such trees fly sumption planes going that were that to keep the same in conformity with No, ordinarily you ac- low to—. A. that easement. quired that so right to cut the trees low planes. you that wouldn’t interfere with Defendants first contend the court should have stricken record from the words, “Q. you In other would assume opinion of Mr. Schlaegel as to the after- see, buyer you talking that we’re — value farm opin- because said you you think about what assume but what ion in part was based on the element of buyer would be would assume—that he fear flying planes. from low Defendants they fly fearful that low be- that would following testimony believe the of Schlae- cut, were correct? cause the trees is that gel elicited counsel defendants’ that, if A. I would think he saw trees cross-examination sustains their conten- cut, for some that he would assume it was tion : purpose. “ * * * many You have different Well, “Q. words, element * in other * * damage areas this case. you —the fear the element that think “ * * * You have what I would call a factor, significant not the would be the factor, scare which is you that if factor cutting the trees mere—. A. * * rent properties, these were it not *, fear, guess, yes. I produce planes coming these house at height I’m sure that you’d get better [*] [*] n tenants more rent. words, “Q. that fear other << [*] [*] : n planes going fly down hit the get trying house? are A. You into * * * “Q. Now your -you’ve it’s — rights, aviation which I don’t think is given consideration to you that be- in this case. lieve planes, require fly lower parts over certain “Q. right, That’s they’re not in it. Dolezal farm than they you buyer otherwise would But trying are to have the treat might that that fright, result in intimi- it—. A. You cut the trees as a result dation, fear, things kind, of cutting noise. diminish trees proximity the house top close level property. That’s I’m
value of
what
barn;
suggest
trees
nor
he
did
saying.
[*]
<<
[*]
[*]
were
were installed
trimmed and
permit
the clearance
the
flight
of
*12
lights
air-
craft at these levels.
words,
“Q. Well,
you
in other
think
likely
that
be
people would
less
to rent the
Rather,
inference from the
the clear
property
they
now than
would
before
Schlaegel,
estimating
in
is that Mr.
record
acquired
easement was
because of
simply
plaintiffs’ farm
the after-value of
fear,
Resulting
creased
is that
it ? A.
one of several factors
considered as
only.”
topping
from
of the
trees
apprehension
pur-
a prospective
“fear” or
were
tive buyer
buyer
were
What would
why
buyer.
erred in
redirect examination:
spond
“Q.
“ *
Defendants
the red
showing
showing
and
as follows to this
[*]
Mr.
I
permitting
say suppose
[*]
why
you
you.tell
Schlaegel, suppose
this farm to a prospective
this farm to
lights
those
were,
argue
them ?
asked
trees
Mr.
so. Assume that
were
the court
question
Schlaegel
were
a prospective
topped
the barn.
asked on
prospec-
further
and
you
you
re-
this witness involves
he would inform a
rights
covery,
demnation
ment” of
trees and
buildings. This factor was
observed
clearance
judgment, having affording
chaser
permitting
Moreover,
not
might entertain before
but as
disadvantage resulting
easement.
proceedings.
Mr.
red obstruction
independent
being a
Schlaegel
acquired
prospective
the court
Thus,
no consideration
“nonspeculative ele-
measure
under
not viewed as
the trimmed
lights
did
buyer
testify that
opinion
forming a
from
the con-
not
on
of re-
upon
err
of
of
inquiry
in order to
topped
the trees “were
they
why
“A.
If
asked me
the trees
give
clearance
for safe
efficient
topped,
were
I
tell
would have to
them that
buyers
some
flight
planes,”
they
topped
were
give
order
purchase
farm.
consequently
not
would
clearance for
flight
safe
efficient
employed by de
language
same
planes.”
for condemna
application
fendants
applicant de
provides: “The
tion which
In order to substantiate the land
right
acquire by
condemnation
sires
owner’s burden to show market value of
or
easement
to clearance
obstruction
condemnation,
the property
“every
after
el
for
flight
fairly
ques
ement which can
enter into the
of aircraft
safe
efficient
**
brief, defendants
And in their
tion
pru
ordinary
of value and which an
authorized
“which
the easements
state
dent
forming
man would consider before
the installa-
trees and
trimming of the
judgment making
purchase
be
should
and barn
lights
the house
of the
considered,
independent
not as an
element
avoiding
purpose
acquired
of damages
determining
as a
but
factor
danger
possibility
all
portion remaining
market value of the
fear thereof
(All emphases
flying planes.”
low
after the taking.” Van
v. Iowa Pub
Horn
See,
v.
g., United States
supplied).
e.
lic
Company,
Service
In connection with defendants’ valid evidence in- assignment error, dicating that of the lights have held existence second “we trees, topping physical fear dan danger, sight times that several thereof, people ger, resulting many of condem could cause from exercise to be rights may affecting buying cautious about nation or limit shown * * * the amount [citing willing market value. authori- offer it, Inc., it, think, very so Fanning I Mapco, relates di- N.W. ties].” (Iowa rectly to the issue of value 1970). 2d before and val- taking.” ue after the As
III. indicated defendants’ third as- *13 signment is the. trial directed toward Defendants’ contention the court erred give requested court’s refusal to their failing in jury disregard to instruct the to 3. As de- structions and summarized any rights reference to the and burdens argument in and their brief the fendants acquisition which result from the would of requested first instruction a flight easement stems from their claim charged did ac- jury, the “defendants not Schlaegel’s testimony Mr. introduced the pro- quire right by the this condemnation flight plaintiffs’ proper- effect travel on fly airplanes part ceeding any to over ty as damage an element of in determining plaintiffs’ farm and that no consideration plaintiffs’ compensation for defendants’ ac- given flights, should or to the to such quisition of a clearance As easement. therefrom, fixing might noise that result argued, validity assignment the of the de- the farm the subsequent value the to pends as on the merit of their claim to condemnation, except extent, the if at is, Schlaegel’s testimony. they only That all, that the to a trimming of the trees argue necessary the instructions were be- height permitted by the clearance ease- testimony Schlaegel cause of Mr. might protection ments reduce the afforded concerning apprehension propspec- of a by the trees a barrier to sound emanat- purchaser tive caused the trimmed trees airplane ing vicinity from traffic in lights. and clearance the trees.” Having his testimony determined Requested instruction 3 would have told did flight not relate to the of aircraft over jury, avigation right “no easement or farm, plaintiffs’ refusal of the to in court flights plaintiffs’ to make free jury avigation struct the that no acquired condemnation, by the no fly aircraft over land was ac imposed upon servitude was ex- the land quired by not defendants was error. It cept precisely for the rights limited appear reading does in from of the clearance, as Application stated in the structions as a whole the court failed Condemnation, right and for the additional properly explain rights acquired by construct, operate, maintain condemnation of clearance ease double lights obstruction speculate ment so left house and barn.” meaning rights acquired as to its and the timely proper Defendants took ex- by defendants. ceptions to give the court’s failure to these requests. case therefore affirmed.
The trial court in refusing defendants’ requested instructions made this comment: MOORE, RAWLINGS, J., and Le- C. “I believe the Exhibits and which REYNOLDSON, JJ., GRAND and concur. set rights forth the easement obtained condemnation, are definitive of the scope and McCORMICK, REES, limitation I easements. UHLENHOPP also think that the evidence of the witness dissent. HARRIS, JJ., McCORMICK, (dissenting). by the trees as a barrier to sound emanat- Justice airplane ing in the vicinity from traffic dissent Division III respectfully I the trees." court’s do not instructions
and the result. mention factors could could arriving not be considered at valuation majority approving cannot join
I of the farm. Nor do the for a instructions or failure a trial to define tell jury, requested exhibits as would scope taking jury the of the nature instruction that the condemnation im- of re- an eminent case the face domain posed no except servitude on the land explaining quested properly it. instructions precisely rights limited of clearance approval particularly disturbing This and the keep lights obstruction present is unusu- case where plaintiff’s house and barn. highly al technical. Furthermore, even did exhibits requested in- Trial court’s refusal of purport apply accept- somehow the law of emi- universally “the structions violates case, nent domain the facts requested rule that where instructions ed parties language language law substance rules of and the state correct *14 adequate acceptable not an is in- substitute request by the the is not covered of language the of the court. its given the court on own structions motion, requested should instructions the requested proper The instructions are Highway given.” v. State be Welton the of law on the heart of statements the 636-637, 625, Commission, 233 211 Iowa Rights acquired under a clearance lawsuit. 876, (1930). N.W. 883 intuitively are nor easement not understood knowledge. a they are matter common of justifications for the refusal are
Two
majority opinion
con-
exhibits,
The
finds the novel
specif-
that the
suggested.
isOne
cept
explained,
involved in such easements
application, show
ically the condemnation
instructions,
not in the trial exhibits or
but
that
taken. The other is
being
what was
City
in an
obscure footnote
of Oakland
Schlaegel was
testimony of witness
the
752, 763,
Nutter,
Cal.App.3d
Cal.
13
92
predicate for the instructions.
insufficient
347,
Rptr.
on
(1970). See also Nichols
ground tenable.
Neither
is
Domain,
(Third
at
Eminent
5.781
5-292
§
relevant
opinion sets out
majority
The
concept is difficult for
1970).
Ed.
The
application
portions
the condemnation
of
lay
lawyers
judges.
then can a
How
of.requested instructions
the
substance
expected
jury
comprehend a technical
be
to
that
Comparison
1 and 3.
demonstrates
intelligible instructions
easement without
the
application contains
the
the assertion
those
in the
the court when
trained
from
not true.
instructions is
substance
the
of
treatises
to lawbooks and
law must resort
nothing
application
is
in the
There
means ?
find out what it
to
jury was told
by which the
the exhibits
defining
explain-
Proper instructions
by requested
they
have been told
as
would
le-
taking and factors
ing
not ac-
the nature of the
did
instruction 1 that “defendants
should
pro-
bearing on valuation
gitimately
by this condemnation
quire
the
given. “In easement
any part
condemna-
ceeding
airplanes
fly
cases,
rights and limita-
purposes,
the
plaintiff’s
that
consideration
farm and
no
ease-
use of
such
or to the
tions of
condemnors
flights,
should be
given
variety
and must
fixing
great
are
therefrom,
result
ments
might
noise
duty of the
It is the
clearly
delineated.
subsequent
the value
the farm
in the
extent,
by way of instructions
condemnation,
trial court
except to the
charge
explain
rights
all,
trimming
the trees
court’s
being
particular easement
parties
under the
permitted by
clearance ease-
height
Antonio, 479
City of San
might
protection
sought.”
ments
Ruble v.
reduce
afforded
(Tex.Civ.App.1972).
S.W.2d
of this
See
evidence was for
jury.
It was
Highway
also Lehman v. Iowa State
Com-
for the jury
say
whether it
believed
mission,
251 Iowa
The con- cerning fear reducing as factor “in- majority’s that the conclusion land’s value is that such fear would result properly explained structions a whole” prospective purchaser’s impression from a rights acquired by the clearance ease- topping placement trees and unsupportable. rights ment is lights signified planes flying would be low explained neither nor defined over the Schlaegel land. While knew such except struction The result those refused. fear was unwarranted from the our rule as to error in refusal reduces avigation clearance than an rather ease- requested to a mere form instructions ment, simply he tell a asserted he would words. prospective buyer the was “to provide for safe clearance and efficient remand the I would reverse and case operation is, planes.” That if he were new trial. attempting to sell land he would tell prospect only ptirpose the ease- ment but not the and extent nature UHLENHOPP, HARRIS, REES, acquired credibility rights under it. The JTJ.,join this dissent.