Linge v. Iowa State Highway Commission

150 N.W.2d 642, 260 Iowa 1226, 1967 Iowa Sup. LEXIS 788
CourtSupreme Court of Iowa
DecidedMay 2, 1967
Docket52373
StatusPublished
Cited by35 cases

This text of 150 N.W.2d 642 (Linge v. Iowa State Highway Commission) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Linge v. Iowa State Highway Commission, 150 N.W.2d 642, 260 Iowa 1226, 1967 Iowa Sup. LEXIS 788 (iowa 1967).

Opinions

Garfield, C. J.

Plaintiffs David E. Linge and the executors and trustees of his deceased father’s estate appealed to the district court from the assessment of damages by condemnation commissioners for the taking of 4.8 acres of plaintiffs’ land and certain rights of access thereto from primary highway 149. From the award based on the jury verdict in the district court plaintiffs have appealed to us.

Three errors in admission of evidence are assigned. We hold plaintiffs are not entitled to a reversal by reason of them.

I. On June 2, 1959, plaintiffs purchased the west half of a certain quarter section of farmland at the southwest edge of Cedar Rapids. (For convenience we disregard the death of David E. Linge’s father and substitution of his executors as plaintiffs.) Paved primary highway 149 runs diagonally from southwest to northeast across the tract. Aside from the highway there were 74.65 acres. The land has never been used for anything but farming. Improvements were of little value.

On February 28, 1963, defendant state highway commission took five feet of plaintiffs’ land along the south side of highway 149 and 115 feet along the north, in order to widen it into a divided highway, with two lanes for travel in each direction. The notice of condemnation provided that all rights of direct access between the highway and the land were also condemned except the two entrances on each side of the highway and, if the property should be developed for other than agricultural purposes, these four entrances would be at slightly different locations. Only the four existing field entrances from the highway have ever been used.

[1230]*1230The record and plaintiffs’ brief show tire six commissioners appointed by the writer to assess the damages from the taking as provided by section 472.6, Code 1962, fixed them at $10,800. Trial of plaintiffs’ appeal to the district court from this award resulted in a jury verdict of $10,500, the amount one of defendant’s value witnesses fixed, and $900 more than its other value witness fixed as the difference in values before and after the taking.

Plaintiffs used one value witness in addition to plaintiff Linge. The witness said the market value of the property before the taking was $2000 an acre or $149,300 “and after the taking it was $1655 an acre, or $115,600, or a difference of $68,000”. Assuming this expert’s before-and-after values were correct, the difference testified to by him is about twice what it should be.

Plaintiff Linge’s testimony is that just before the taking of the 4.8 acres and rights of direct access to 149, the fair market value of the property was $150,000 and after the taking it was $75,000.

Three years and nine months before the condemnation plaintiffs paid $94,425 for the entire tract. This, according to Mr. Linge, was $1250 per acre for the land north of highway 149 and $1000 per acre for the land on the south.

The primary purpose for which plaintiffs bought the tract, according to the witness David E. Linge, was for a cemetery but permission for such use was denied by county zoning authorities. Plaintiffs then considered subdividing the tract for residence lots. When the city limits were extended to include the land it was automatically zoned R-l for residential use.

II. Plaintiffs first assign error in the admission in evidence of an ordinance passed and approved by the City of Cedar Rapids on February 26, 1962 (a year before this condemnation), establishing access control on the portions of three primary highways within the city, including 149. The ordinance (Exhibit B) recites it was passed pursuant to agreement in resolutions of the city council adopted July 11, 1957, and it shall be deemed an exercise of the police power under what is now chapter 306A, Codes 1962, 1966.

The ordinance further provides:

[1231]*1231“Section 6. Presently existing access rights will not be destroyed except by gift, purchase or appropriate condemnation proceedings thereof. However, such access rights shall be subject to such regulations in the interest of public welfare and safety as the City and Iowa State Highway Commission may agree upon, provided that no additional access ways shall be permitted by the City without the consent and approval of the Iowa State Highway Commission.

“Section 7. The Iowa State Highway Commission shall be authorized to acquire right-of-way and access rights by gift, purchase or condemnation on the above described length of roadway.”

III. Before objecting to admission of the ordinance plaintiffs’ counsel was permitted to examine at some length the director of public works for the city by whom the exhibit was identified. Plaintiffs then objected to the offer as incompetent and immaterial to any issue in the ease, no proper showing it had been legally passed, it contained self-serving matters, and the only right the city had to control access would be in conjunction with defendant-commission.

There is sufficient evidence the ordinance was legally adopted and this ground of the objection seems not to be relied upon here. Ground of the objection that it was self-serving added nothing thereto. Bass v. Muenchow, 259 Iowa 1010, 146 N.W.2d 923, 925, and citations.

It may be taken as true that the only right a city has to control access to primary highways within its corporate limits is in cooperation with defendant-commission. Code section 306 A.3; Gardner v. Charles City, 259 Iowa 506, 144 N.W.2d 915, 917-919. However, as we shall attempt to point out, this affords insufficient basis for excluding the ordinance from evidence.

Concerning an objection to an exhibit “as incompetent, irrelevant and immaterial, purely self-serving, and not in any way binding on plaintiff”, Lende v. Ferguson, 237 Iowa 738, 749, 23 N.W.2d 824, 830, cites several Iowa cases for this: “Ordinarily, when an objection is made to the introduction of testimony on the ground that it is incompetent, counsel making the objection should point out in what particular or particulars [1232]*1232the evidence # * * is objectionable, and unless this is done we have held that it does not constitute a proper basis for a reversal.”

Jackson v. Chicago, M., St. R. & P. R. Co., 238 Iowa 1253, 1263, 30 N.W.2d 97, 103, states the same rule, pointing-out that the general objection is sufficient where the grounds of ineompetency are obvious. Among later decisions to like effect are Ferris v. Riley, 251 Iowa 400, 408, 101 N.W.2d 176. 180, 181; Wickman v. Illinois Cent. R. Co., 253 Iowa 912, 921, 114 N.W.2d 627, 632; McCrady v. Sino, 254 Iowa 856, 862, 863, 118 N.W.2d 592, 595, 596; Spry v. Lamont, 257 Iowa 321, 335, 132 N.W.2d 446, 454. See also I Wigmore on Evidence, Third Ed., section 18, pages 332-338.

Grounds of objection raised for the first time in the motion for new trial and on appeal are not timely and will not be considered here. See authorities supra, also Lowman v. Kuecker, 246 Iowa 1227, 1230, 1231, 71 N.W.2d 586, 588, 589, 52 A. L. R.2d 1380; Berg v. Ridgway, 258 Iowa 640, 140 N.W.2d 95

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Bluebook (online)
150 N.W.2d 642, 260 Iowa 1226, 1967 Iowa Sup. LEXIS 788, Counsel Stack Legal Research, https://law.counselstack.com/opinion/linge-v-iowa-state-highway-commission-iowa-1967.