165 Iowa 435 | Iowa | 1914
This is a proceeding to condemn certain land for the use of the city of Mt. Pleasant in supplying water and affording fire protection to its people. The application therefor alleged this to have been insufficient, and that, “in pursuance of said objects, the city of Mt. Pleasant, Iowa, through its city council, finds that it is necessary to procure or acquire, by purchase or condemnation, for the purpose of obtaining a sufficient water supply and adequate fire protection; that the said city desires to make some extensive improvements to obtain a sufficient supply of water, and also to construct reservoirs for the purpose of obtaining an adequate fire protection, and in pursuance of said necessity requires the following described real estate” (describing it); that the city had been unable to acquire title thereto by purchase; that Louisa Tracy owned eight-twelfths thereof, and the other plaintiffs one-twelfth each, and prayed that the damages to each occasioned by the taking b¿ assessed; “that the said jury assess the damages of
E. E. Bartow, who had been director of the Illinois water survey for seven years, had been a professor of chemistry, and had studied in Germany, testified that he had seen the wells and pumping station; that the only way to. locate sand or gravel below the surface and determine where water comes from was by test wells; that often a good well is near one that is worthless; that water is often found in gravel or sand beds, evidently in depressions beneath the surface; that assuming sand or gravel is reached at a depth of twenty-five feet, with hard impervious clay above, this would indicate water is collected therein from some distance (that is, “500 yards or a couple miles or even farther”) ; that this can only be ascertained by .experiment. The witness was then asked “if he
Q. If they were able to pump our water from us, then what would be the value of our wells on this side in that tract from which we get our supply? A. It would depend upon which pumped the faster. Q. Suppose the people on the Tracy side pumped the faster and had a more powerful pump? A. You wouldn’t get the water you needed. Q. Then our tract wouldn’t be worth much? A. No, sir; it wouldn’t. Q. The possibility of putting wells immediately over the line of this tract, just the same water-bearing area as ours, would depreciate the value of our tract a great deal? A. Just as you have destroyed the value of their land for water-bearing prospects now. Q. It would be the same on either side? A. Yes, sir. Q. You would say that little area was worth $3,000? A. Why, I should say that the city should control more land in the first place, and that there would not only be the possibility of having water, but also the danger of contamination from wells in the neighborhood. The city should not only control two acres, but ought to ■control even more than that; as far as your direct question goes, the flow of water into wells through sand is fixed according to the character of the sand and gravel. Water would flow into each one, as was testified this morning. With one well they get about as much water as they could from two. If the distance was greater, they would probably get more from two than they would from one, because of the fact that the water takes time to flow through the sand. That the right would be worth $3,000 if the city could enjoin other people from interfering with their water, and would be based upon the city’s right to prevent any one else from taking any of the water. The value is fixed upon the hypothesis that the city should make a contract or ar
That in figuring the value at $3,000, he figured it on the theory that the city would control sufficient land to control the water supply. He based his value partially on the fact that the city should control enough land to control the water supply and eliminate contamination. He fixed his value on the fact that the city could get that much water and be assured that much water, without regard to the number of acres of surface they might control. “I mean they should be assured there would be no interference of the water supply and have such a control as there would be no pollution of the water supply. Q. Of course, the water being only three or four feet from the-line, we couldn’t assure ourselves of that protection, either from the theft of the water or from pollution? A. No, sir. But some arrangement could be made to protect the city.”
There was no motion to strike his estimate of value following his cross-examination, but this disclosed conclusively that his opinion was based on a state of facts that did not exist and with his direct testimony that his estimate of value was not entitled to the slightest consideration as evidence of the damage plaintiff would suffer from the appropriation of the land for the purposes contemplated. The only testimony furnishing a basis for assessing the damages at more
While property to be condemned is to be measured by its value as it was at the date of its appropriation, proof of all the acts relating thereto “is admissible, not as affording a measure of recovery, but as tending to disclose the real character and condition of the property, and support the estimates of values given by the witnesses. Generally speaking, the true rule seems to be to permit the proof of all the varied elements of value; that is, all the facts which the owner would properly and naturally press upon the attention of a buyer to whom he is negotiating a sale, and all other facts which would naturally influence a _person of ordinary prudence desiring to purchase. ... In this estimation the owner is entitled to have the jury informed of all the capabilities of the property, as to the business or use, if any, to which it has been devoted, and of any and every use to which it may reasonably be adapted or applied. And this rule includes the adaptation and value of the property, for any legitimate purpose or business, even though it has never been so used, and the owner has no present intention to devote it to such use.” Ranck v. City of Cedan Rapids, 134 Iowa, 563. Numerous authorities are there cited which amply sustain the rule and illustrate its application. It is said farther on that “the value of the property for any special use for which it is fitted or adapted may always be inquired into.” If, then, the water supply had any distinct value which might aid in measuring what price should be exacted for the property condemned, evidence thereof was admissible. The water was extracted in the
A witness qualified to answer was asked: “Do you know what the value of the land is down there for reservoir purposes? Have you any means of knowing the value of this land for reservoir purposes ? ’ ’ An objection as irrelevant and incompetent was sustained, and, in declaring the ruling erroneous, the court said: ‘! The question is thus presented ivhether, assuming that the land sought to be taken was specially valuable for the purposes named, it was relevant and competent to show such value.” There is undoubtedly
Nor would this rule, as supposed by respondent, justify the admission of speculative opinions based upon the necessities of the plaintiff, or what the plaintiff could afford to give for the land rather than to do without it. If it should appear, during the course of the examination, that a witness had given an opinion as to value formed upon any such considerations, it would be the duty of the court to strike such opinion evidence out, as resting upon an illegal and improper basis.
Two earlier cases were overruled in deciding San Diego Land & Town Co. v. Neale, 78 Cal. 63 (20 Pac. 372, 3 L. R. A. 83), where the court adjudged evidence of the value of defendant’s property as a reservoir site rightly received, saying, in the course of the opinion:
The problem, then, is to ascertain what is the market value. Now, where there is an actual demand and current rate of price, there can be but little difficulty. But in many instances, as in the case before us, there is no actual demand or current rate of price, either because there have been no sales of similar property, or because the particular place is the only thing of its kind in the neighborhood, and no one has been able to use it for the purposes for which it is suitable and for which it may be highly profitable to use it. In, such case, it has.been sometimes said that the property has no market value, in the strict sense of the term. Chicago & N. W. R. Co. v. Chicago & E. R. Co., 112 Ill. 607; Lake Shore & M. S. R. Co. v. Chicago & W. I. R. Co., 100 Ill. 33; St. Louis, K. & A. R. Co. v. Chapman, 38 Kan. 307 (16 Pac. 695, 5 Am. St. Rep. 744). And in one sense this is true. But it is certain that a corporation could not for that reason appropriate it for nothing. From the necessity of the case, the value must be arrived at from the opinions of well-informed persons, based upon the purposes for which the property is suitable. This is not taking the ‘value in use’ to the owner, as contradistinguished from the market value. What is done is merely to take into consideration the purposes for whieh the property is suitable, as a means of ascertaining what reasonable purchasers would in all probability be willing to give for it, which, in a general sense, may be said to be the market value. And in such an inquiry it is manifest that the fact that the property has not previously been used for the purposes in question is irrelevant.
This does not mean that all capabilities are to be priced separately, and the aggregate put down as the true value, for they do not exist independently of each other, and cannot all be realized at the same time. Nor will it do to restrict the estimate to any one of them, because in one view that would exclude the other elements altogether, and in the other view it would tend to make the degree of benefit to the party appropriating and condemning for a particular purpose the real measure of value, which is never allowable,
And with reference to San Diego Land & Town Co. v. Neale, supra, the court observed that: “In that case it was held, distinctly, that it was competent to prove the value of land for a reservoir site, and to make that value the measure of damages, independent of any other consideration or element of value; and that, too, when the land sought to be condemned was in fact not the real site of the reservoir, but only necessary to contain back water from the dam below.”
This interpretation, however, was repudiated on the second appeal of San Diego & Town Co. v. Neale, found in 88 Cal. 50 (25 Pae. 977, 11 L. R. A. 604), where the court said:
It was decided on the former appeal, and is the law of the case, that the value of the land for any special purpose may be taken into account as one of the elements tending to show its market value. The fact that the land is suitable for such a purpose, and a chance exists that it may some time bring an enhanced value therefor, has a tendency to increase its market value, and may properly be considered in determining what its present market value is. In this connection it is proper to say that the learned judge who
See, also, In re Application of New York, Lackawanna & Western Co., 27 Hun (N. Y.) 116; City of Los Angeles v. Pomeroy, 124 Cal. 597 (57 Pac. 585). The logic of the California cases, in view of the peculiar facts, seems unanswerable.
In Sargent v. Inhabitants of Merrimac, 196 Mass. 171
The market value to which the petitioner was entitled was made up of the value in the market of the land, apart from its special adaptability for water supply purposes, plus such sum as the purchaser would have added to that value because of the chance that the land in question might be some day used as a water supply. Moulton v. Newburyport Water Co., 137 Mass. 163. The underlying contention of the petitioner is that it is idle for the presiding judge to tell the jury that she is entitled to this added value because of the chance that her land may be used as a water supply, so long as the court refuses to allow her to show what additional sum a purchaser would pay by reason of that special adaptability ; and that you do refuse to allow her to show that when you refuse to allow her to show the value of the land for the special purpose. Without question this evidence would have thrown light on the issue on trial. The objection to it was not that it was not relevant, but that it would or might involve the trial of collateral issues, and for that reason was incompetent; that is to say, if this evidence was admitted, the court would or might find itself necessarily involved in the trial of collateral issues which would confuse the minds of the jury and unduly protract the trial. Whether relevant evidence is or is not to be held incompetent on this ground depends upon the view taken of it by the presiding judge (Yore v. Newton, 194 Mass. 250, 80 N. E. 472), and is a matter which must be left largely to his discretion, although his decision is not necessarily final. See, for example, Bemis v. Temple, 162 Mass. 342 (38 N. E. 970, 26 L. R. A. 254). The petitioner relies principally upon the cases of Cochrane v. Commonwealth, 175 Mass. 299 (56 N. E. 610, 78 Am. St. Rep. 491), and Conness v. Commonwealth, 184 Mass. 541 (69 N. E. 341), where the opinion of an expert as to the value of mill sites was admitted upon the trial of petitions to recover compensation for land taken, in the first case for a sewer and in the second case for a park, although the land was not then used for a mill. ... In our opinion, it is likely that the
The inconsistency involved in excluding evidence of value of the land for a water supply, or because of its special adaptation therefor, and yet holding that the measure of damages should be “made up of the value in the market of the land apart from its special adaptability for water supply purposes, plus such sum as a purchaser would have added to that value because of the chance that the land in question might be some day used as a water supply,” is pointed out in the annotation following the opinion in the American State Eeport. Of course the ultimate issue to be determined is, What is the fair and reasonable value of the land to be appropriated to the public use, plus any damage to the tract from which taken and the inquiry is, How shall this be best ascertained? and there is much to be said in favor of the proposition that this depends largely upon the discretion of the trial court.
But where its adaptability and availability for the particular purpose is undisputed, there is no controlling reason for a ruling by which other than evidence of the general value of the property sought to be condemned should be received, though receiving evidence of value for a particular use would rarely prove prejudicial or constitute an abuse of the large discretion exercised by the trial court in ruling on the manner of adducing testimony of this character.
II. The suggestion that the application was merely to condemn the two acres of land, without reference to the purpose for which to be used, is without merit, _ as is also the contention that the injury to the remaining portion of the tract ought not to have been considered.
Affirmed on condition.