Costello v. Burke

Reed, J.

I. Highway: damages for lands appropriated for: measure of dependent upon claimant's interest in the land. I. The questions argued by counsel relate to the instructions given, to the effect, First, that plaintiff was not entitled to recover the value of the land appropriated, without proof that he was the owner thereof: and, Second, that the evidence was not . sufficient to establish the ownership or the property. The position of the appellant with reference to the first question is, that the title to the property is not involved in the proceeding; that the proceeding is against the land, and the damages are assessed with reference to the effect of the appropriation on the market value of the premises; and hence it is not material to enquire as to the ownership of the property.

It is true that the proceeding to appropriate the land is in the nature of a proceeding in rem. The owner of the property is made a party only for the purpose of giving him an opportunity to assert his claim for damages; and, if he neglects to assert such claim when the opportunity to assert it is given him in the manner provided in the statute, the appropriation may be made without any regard to the question of damages. Dunlap v. Pully, 28 Iowa, 469 ; Wilson v. Hathaway, 42 Id., 173; Hanrahan v. Fox, 47 Id., 102.

But when a claim for damages is filed, the proceeding had therein is in the nature of a personal action. Such claim can be based only on the personal right of the claimant. And the object of the proceeding is to determine whether he has any .interest which will be injuriously affected by the appropriation *364 of the property, and, if so, the amount of the damages he will sustain in consequence of the appropriation. Sec. 962 of the Code provides that “the amount of the damages the claimant is entitled to shall be ascertained by said circuit court in the same manner as in actions by ordinary proceedings.”

This section prescribes the practice in such cases in the circuit court, and it also indicates clearly the question which is to be determined in the proceeding, which is “the amount of the damages the claimant is entitled to.” And we think it clear that these damages must be estimated with reference to the extent of the interest of the claimant in the property from which the appropriation is made. The public acquires by the appropriation the right to the perpetual use of the land taken, and "the sum which would compensate the owner of a limited estate in the land might be very inadequate compensation to the owner of the fee.

Plaintiff alleged that he was the owner in fee simple of the premises from which á portion of the land sought to be ajjpropriated was taken. All the allegations of his claim, under the provisions of section 941, were regarded as denied in all the subsequent proceedings. This puts on him the burden of proving every fact material to his claim, and, as the amount of his damages depends on the extent of his interest in the land, it follows necessarily that he must prove his interest.

2. Title to Heal Estate: incompetent evidence to establish: recitals of death and heirship in deed and decree. II. Appellant’s position with reference to the second question is, that at most he was only required to produce prima facie evidence that he was the owner of the land, and that, when he showed that he was in possession under a conveyance, he met the re q uirements of the law in that respect. The difficulty, however, is that there is no evidence that his grantors ever had title. Indeed the title is shown to be in another. The conveyances introduced show that John Bennington was vested with the title, and there is no competent evidence that it has ever passed from him. The recitals in the deed to William Costello, that the grantors therein are the heirs at *365 law of Jobn Bennington, deceased, are not competentevidence either of his death or their heirship. These recitals are no part of the conveyance, and they are no more competent as evidence in this controversy of the facts stated than they would he if embodied in any other writing signed by the parties. Neither are tire recitals in the judgment, in the case against Edinburn, competent evidence of these facts. The defendant in tliis case is a stranger to that record. The adjudication is not binding on him, and the record is not competent evidence against him.

We think, therefore, that the circuit court correctly held that the evidence was insufficient to establish the ownership of the property by plaintiff. The judgment is

Affirmed.