Involved in this appeal is the correctness of the trial court’s ruling sustaining defendant’s motion to strike parts of three paragraphs of plaintiffs’ petition. An interlocutory appeal was granted in accordance with R. C. P. 332.
In June of 1961 defendant commenced proceedings to condemn, for highway purposes, certain real property of plaintiffs in Carroll Comity, Iowa, which abutted Primary Road No. 141 for 383 feet on the north side thereof. Being dissatisfied with the award of the sheriff’s jury, plaintiffs appealed to thе district court. Their petition, among other things, alleged the real property was located within the town of Manning, that it was used for commercial and business purposes, that a cafe, a motel, a filling station, and a bulk oil station were located thereon, that under the Iowa State Highway Commission’s highway improvement program a strip of plaintiffs’ land abutting the road was being taken, that access to their lands was being limited to only two commercial entrances, one 35 feet wide and the other 45 feet wide, that authorized improvements made by them on the street were destroyed, and that the loss in value of their property due to the taking was $30,000.
Defendant moved to strike part of paragraph 6 of plaintiffs’ petition which stated: “and that the town of Manning, Carroll County, Iowa, by license or easement under the provisions of Ordinance No. 115, granted certain rights and uses into the street and highway located to the south of the above and foregoing real estate, and attached hereto and made a part hеreof, marked Exhibit ‘B’, is a copy of said ordinance, and the plaintiffs were given the use thereof and had placed filling station pumps, concrete ramps and approaches and driveways to the various businesses located upon the above and foregoing real estate owned by these plaintiffs” for the reason “that the same
The trial court sustained the motion to strike in these words: “The defendant’s motion to strike in paragraph 1 of Division I is sustained.”
In paragraph 2 of its motion to strike subparagraph B of paragraph 8 of plaintiffs’ petition providing, “Damage therеby by reason of the taking and appropriation of plaintiffs’ right of access, ingress and egress to and from the public highway tc the South, thereby destroying the use of said premises for business and commercial purposes, for which they are now used and are readily adaptable”, defendant stated: “This defendant moves that subparagraph B of paragraph 8 of plaintiffs’ petition be stricken for the reason that the same is an improper conclusion and for the further reason that it is inconsistent with paragraph 3 of plaintiffs’ petition, which states in effect that two commercial entrances are reserved to plaintiffs’ property.” The trial court sustained the motion in these words: “The defendant’s motion to strike in paragraph 2 of Division I is sustained.”
Defendant also moved to strike subparagraphs C and F of paragraph 8 of plaintiffs’ petition “for the reason that the same are incompetent, irrelevant and immaterial and for the further reason that plaintiffs have made no allegations of рroperty rights in the right of way of public Highway No. 141.” Subparagraph C of paragraph 8 provides, “Damage thereto and to the use made of said premises and for which they are readily adaptable by reason of the taking and appropriation in fee simple of the property rights of plaintiffs, under the provisions of Section 5, Chapter 148, Acts of the 56th General Assembly of Iowa, thereby severing plaintiffs’ remaining property from that portion now occupied by the public highway to the South and over which defendant possesses only an easement.” Subparagraph F of paragraph 8 provides, “The taking
I. Appellants contend, with considerable merit, that the trial court erred in sustaining generally appellee’s motion to strike, when rule 118 of оur Buies of Civil Procedure clearly requires a separate ruling on each of the grounds set forth in appellee’s motion to strike. This is perhaps a fine example of why such a rule was established. Buie 118, B. C. P., provides in simple clear language, “A motion, or other matter involving separate grounds or parts, shall be disposed of by separate ruling on each and not sustained generally.”
We said only recently in Mooney v. Nagle,
II. Buie 113, B. C. P., provides: “Improper or unnecessary matter in a pleading may be stricken out on motion of the adverse party.” It is pointed out in 1 Cook’s Bevised Edition of Iowa Buies of Civil Procedure, page 736, that a motion to strike must be cautiously granted and will be denied if there is any question as to the validity of the pleading. This is true, it said, because such striking out disposes of the pleader’s case in a very summary way and may do him an injustice. We think, therеfore, that a motion to strike certain paragraphs in a petition should be granted only when the allegations thereof have no possible relation to the controversy,
Here the facts pleaded were quite sufficient to apprise the Highway Commission of the nature of the proof. Often in a pleading the statement of relevant facts involves a conclusion of fact, and properly so in order to avoid pleading evidential matter. Obviously, a conclusion based upon facts stated is not objectionable. The facts pleaded here were ample to show what was being claimed for them. As pointed out by appellants, their petition avers (1) that their property being condemned borders on a street in Manning, Iowa, which is also a state highway; (2) that upon this property are four separate and distinct business establishments; (3) that pursuant to a license issued under due authority, they placed upon the city street some improvements which were used in conjunction with the businesses established upon the abutting property; and (4) that their property in the form of proper access and a licensed use of connecting land were being taken or destroyed by defendant’s action. Under the facts related, the conclusions pleaded were permissible. Defendant was put on notice of what plaintiffs intended to prove and the issues were sufficiently defined. The matters pleaded obviously had a relationship to the controversy.
If reasonable access is not left plaintiffs, and if their licensed use of the street is a legally recognized right, it cannot be said the stricken allegations here have no possible relation to the controversy, i.e., the difference in value of plaintiffs’ property before and after the taking. Any doubt as to whether less than reasonable access remained or as to whether appellants
III. It appears to us the only two propositions of any consequence raised by these motions, which necessarily admit well-pleaded facts, are (1) that the petition does not state facts upon which it may be found that plaintiffs have been deprived of free and convenient access to their property, and (2) that under the facts stated, no valuable property rights are taken from plaintiffs by depriving thеm of certain improvements placed upon the city street in front of their property under a license issued pursuant to a town ordinance. Both seem to raise fact questions not at this time determinable.
IV. No hard-and-fast rule can be stated as to whether an abutting property owner has been denied reasonable access to his property, or, as we have said, “free and convenient” access. Wegner v. Kelley,
V. The remaining issue as to whether the alleged destruction of plaintiffs’ improvements in the abutting street is the taking of a property interest such as to be an element of damage in this eminent domain proceeding is more difficult. We have been cited no direct authority on this proposition and have found no precedents in Iowa. We have found some consideration of related matters in other states, and the subject has been dealt with in the Restatement of Property and other authoritative writings.
In 18 Am. Jur., Eminent Domain, section 156, page 786, it is stated “every person having an estate or interest at law or in equity in the land taken is entitled to share in the award. In other words ‘property’, as used in the Constitution, is a word of most general import and extends to every species of right and interest capable of being enjoyed as such upon which it is practicable to place a money value. * * * ‘Property’, in its constitutional sense, also includes * * * franchises and other contracts with the state or its subdivisions. It has been asserted that the right to compensаtion for property taken, injured, or destroyed has reference to some direct physical disturbance of a right, either public or private, which the owner enjoys in connection with his property, and which gives it an additional value,
It is clear plaintiffs intend to prove, under an ordinance, Exhibit “B”, passed pursuant to statutory authority, section 368.8, Code, 1958, the town of Manning granted them the right to install and use gasoline pumps in the street abutting their land, that pursuant to that authority, the ramps, islands and pumps were placed thereon and used in connection with their land, and that by defendant’s action this right and use is destroyed.
Section 368.8, Code, 1958, provides: “They [cities and towns] shall have the power to limit the number of, regulate,
If this licensed use amounts to an interest in land, such a right or privilege, when destroyed by a third person, would seem to be a proper element of damage. In American Law of Property, Volume II, chapter II, Licensеs, section 8.109, page 315, it -is stated: “A license consists of or at least includes a permitted unusual freedom of action. Quite commonly the one to whom a license has been given has a privilege to do something which would ordinarily be an interference with either a public or a private right. If the privilege is to interfere with a public right, the license must be granted by public authority; * * *. A license may have such a value to the one to whom it is issued as to cause it to be regarded as something belonging to the licensee.”
In section 8.110 it is stated: “A license is an interest in land which includes the privilege of use of the land * * ®. It is a privilege to use land in the possession of another. It resembles in this respect an easement, which is likewise a privilege to use land in the possession of one other than the one entitled to the benefit of the easement. The most significant difference between the two interests is that a license is, in general, subject to termination at the will of the possessor of the land subject to the privilege of use while an easement is not. (Eestatement, Property (1944), section 512). * * * Licenses are subject to few if any conveyancing rules, and in explaining why this is true it is often said that a license is not an interest in land at all. For some purposes it must, however, be admitted that any privilege to use land constitutes an interest in land. (See Eestatement, Property (1944), section 512, Comment c, and Clark, Covenants and Interests Eunning with Land, 2d ed. 1947, p. 28). On the other hand, a revocable interest in land is not such an interest as to call for such safeguards in their creation and transfer аs are called for in the creation of irrevocable interests.”
The author then points out that since a license is an interest which depends upon the continuing consent of the possessor of the land being used, it is impossible to create it by prescription. We have so held in Town of Lamoni v. Smith,
Restatement of the Law, Property, chapter 43, section 521, subsection (2) states: “A liсensee is entitled to protection against interference by third persons with the use privileged by the license to the extent to which the license gives him possession as against such persons.” Under Comment b we find: “To receive protection as the owner of a possessory interest one must have, in general, such a physical relation to> the land as to give him a certain degree of physical control over it, and an intent to so exercise such control as to exclude other members оf society, in general, from any present occupation of it.”
It is then pointed out that this control and intent largely depend on the facts of each case. In other words, it is a matter of degree of possession, control and interest.
As to value Comment a, section 521, says: “A license is an interest in land (section 512, Comment c). Yet, so long as it is subject to termination at the will of the owner of the servient tenement, it is an interest of uncertain value. * * * Thus, it is not an interest in land within the meaning of the term ‘interest’ as used in the Statute of Frauds. Because of the uncertainty of
Subdivision (4) оf section 521 as to a licensee protection against encroachment of third persons also states: “To the extent to which such a license as is described in section 514 has become irrevocable through the expenditure of capital or labor in reasonable reliance upon representations by the licensor * * *, the licensee is entitled to protection against interference by third persons with the use privileged by the license.”
The import of these statements is that where the plaintiffs have obtained through license from the public authorities the privilege to use exclusively the part of the street in front of their land for the gasoline pumps, and have expended funds in placing necessary foundations and attachments thereon which gave them absolute possession and control thereof until the license was revoked, they had a property interest having a value which could be considered in fixing damages for its destruction. At least we cannot at this time say it did not. Consequеntly,-we think any rejection of this element of damage as too speculative or insignificant must await the evidence in the trial of these issues.
Such is the tenor of the cases we have been able to find on similar issues. In Miller v. Greenwich Twp., supra, 62 N. J. L. 771,
In Keystone Lbr. Co. v. Kolman,
In Williams v. Riley,
In A. S. Nahas v. Local 905 (October 1956),
The Telephone Company case was an action by the company as a licensee, under an agrеement permitting it to maintain manholes and underground conduits on railroad premises, against the railroad as licensor for damages to the conduits- by third persons installing a filling station and storage tanks on railroad property with its consent.
VI. Defendant infers there could be no valid license issued for the use of this street. If by that it means the authority granted in section 368.8(6) is unconstitutional, such issue must be raised by its pleadings. We do not pass upon that question here. The same is true as to defendant’s suggestion that plaintiffs’ license was invalid or had expired by operation of law. These are matters of defense which it may properly raise by answer. There is no inference the license was revoked because the town cooperated in the highway improvement.
It is true we have on occasions mentioned section 368.8(6) or its predecessor, and we have held it necessary to show the municipality had passed an ordinance under that statute before a valid license for gasoline pumps could create a recognizable privilege. Town of Lamoni v. Smith, supra,
In Town of Lamoni v. Smith, supra, we held a city may lawfully authorize and permit its streets for purposes other than travel, when such use is conducive to the public convenience.
At any rate under plaintiffs’ pleading, the town of Manning had enacted an ordinance which authorized the license plaintiffs obtained, the plaintiffs had placed their gasoline pumps and
VI I. In all fairness, both of these issues sufficiently defined should receive further consideration in this action and should not be dismissed pursuant to defendant’s motion to strike. The trial court erred in doing so, and the case must therefore be remanded for further proceedings in accord with this opinion.-— Reversed and remanded.