150 Iowa 344 | Iowa | 1911
The plaintiff was the owner of the N. % of section 18, in Colfax township, Webster County, containing three hundred and thirty-two acres. The board of supervisors of such county-, established a drainage ditch
1. Drainage: evidence oI. The west branch of the ditch had been constructed previous to the trial. One Haviland, a witness for the plaintiff, was permitted to testify to measurements of the ditch which he made at certain points. This was objected to upon the ground that only official measurements could be considered, and that these were determined by the engineer’s report. This witness testified that at the point where he measured the ditch was thirty feet wide at the top. On behalf of defendant, the engineer testified that the ditch would average about twenty-four feet at the top. The witnesses on both sides agreed that the total area of plaintiff’s land appropriated by such ditch was approximately four acres. In our view the difference between the testimony of Haviland and the engineer on that question, if any, was not enought to furnish any ground of complaint to either party. Granting that the official dimensions should control, the practical execution of the work almost of necessity involves some excess of excavation. The purpose of this testimony was to ascertain the area of the land taken and the quantity of dirt thrown into the embankments. As a practical question it can be determined only approximately at best. We think the complaint of appellants at this point is without merit.
IV. The trial court gave the following instructions among others:
(4) The plaintiff’s measure of recovery is the difference in the fair and reasonable market value of his property as it was before the ditch was located and constructed across it, and the fair and reasonable market value of the same after the said 'ditch was located and constructed therein, not taking into consideration any of the benefits to plaintiff’s land resulting from the construction of said ditch. In no event, however, can you allow plaintiff less than the fair and reasonable market value of the land actually taken from plaintiff in the making of the said improvement at or about the time taken.
(5) You will abserve from the foregoing that you are in no wise concerned in the benefit, if any, of the improvement to the land of the plaintiff. This benefit is a matter to be considered by another tribunal, and you are only required to determine the amount of damages plaintiff sustains on account of the construction across and upon his land of the improvement in question, not considering any benefits, if any, to his land. ... •
(8) When you retire to your jury room, you will first determine what has been proven to you by a preponderance of the evidence to have 'been the fair and reasonable market value of the plaintiff’s land immediately before the time of the establishment of the ditch in question. You will then proceed to determine the fair and reasonable market-value of the said-land, as established-by a-preponder
In pursuance of this report of the engineer and the approval of the board, the line of the west branch was shifted one hundred and thirty feet to the west which carried it to a line twenty feet east of appellee’s west line. At the time of the trial in January, 1910, the defendants filed an additional answer pleading an agreement with the plaintiff to the effect already stated. After hearing the testimony, the trial court withdrew it from the considera
We find no prejudicial error in the record, and the order below must be affirmed.