Dolezal v. City of Cedar Rapids

*98 McCORMICK, Justice

(dissenting).

I respectfully dissent from Division III and the result.

I cannot join the majority in approving the failure of a trial court to define for a jury the nature and scope of the taking in an eminent domain case in the face of requested instructions properly explaining it. This approval is particularly disturbing in the present case where the taking is unusual and highly technical.

Trial court’s refusal of the requested instructions violates “the universally accepted rule that where requested instructions state correct rules of law and the substance of the request is not covered by the instructions given by the court on its own motion, the requested instructions should be given.” Welton v. Iowa State Highway Commission, 211 Iowa 625, 636-637 , 233 N.W. 876, 883 (1930).

Two justifications for the refusal are suggested. One is that the exhibits, specifically the condemnation application, show what was being taken. The other is that the testimony of witness Schlaegel was an insufficient predicate for the instructions. Neither ground is tenable.

The majority opinion sets out relevant portions of the condemnation application and the substance of.requested instructions 1 and 3. Comparison demonstrates that the assertion the application contains the substance of the instructions is not true. There is nothing in the application or any of the exhibits by which the jury was told as they would have been told by requested instruction 1 that “defendants did not acquire the right by this condemnation proceeding to fly airplanes over any part of plaintiff’s farm and that no consideration should be given to such flights, or to the noise that might result therefrom, in fixing the value of the farm subsequent to the condemnation, except to the extent, if at all, that the trimming of the trees to a height permitted by the clearance easements might reduce the protection afforded by the trees as a barrier to sound emanating from airplane traffic in the vicinity of the trees." The court’s instructions do not mention any factors which could or could not be considered in arriving at valuation of the farm. Nor do the instructions or exhibits tell the jury, as would requested instruction 3, that the condemnation imposed no servitude on the land except for the precisely limited rights of clearance and the right to keep obstruction lights on plaintiff’s house and barn.

Furthermore, even if the exhibits did purport somehow to apply the law of eminent domain to the facts of the case, their language is the language of the parties and is not an adequate or acceptable substitute for the language of the court.

The requested instructions are proper statements of the law on the heart of the lawsuit. Rights acquired under a clearance easement are not understood intuitively nor are they a matter of common knowledge. The majority opinion finds the novel concept involved in such easements explained, not in the trial exhibits or instructions, but in an obscure footnote in City of Oakland v. Nutter, 13 Cal.App.3d 752, 763 , 92 Cal. Rptr. 347, 353 (1970). See also Nichols on Eminent Domain, § 5.781 at 5-292 (Third Ed. 1970). The concept is difficult for lawyers and judges. How then can a lay jury be expected to comprehend a technical easement without intelligible instructions from the court when those trained in the law must resort to lawbooks and treatises to find out what it means ?

Proper instructions defining and explaining the nature of the taking and factors legitimately bearing on valuation should have been given. “In easement condemnation cases, the purposes, rights and limitations of the condemnors in the use of easements are of great variety and must be clearly delineated. It is the duty of the trial court by way of instructions in the court’s charge to explain the rights of the parties under the particular easement being sought.” Ruble v. City of San Antonio, 479 *99 S.W.2d 86, 88 (Tex.Civ.App.1972). See also Lehman v. Iowa State Highway Commission, 251 Iowa 77 , 99 N.W.2d 404 (1959); City of Statesville v. Bowles, 6 N.C.App. 124 , 169 S.E.2d 467, 470-471 (1969).

The majority’s response that this assignment of error depends on the merit of defendants’ claim as to the inadmissibility of witness Schlaegel’s testimony is wholly unwarranted. The assignment is dependent on the Schlaegel testimony only insofar as such evidence illustrates the necessity of putting the nature of the taking into proper perspective for the jury. The requested instructions presuppose Schlaegel’s testimony is in the record. The fallacy in the majority’s reasoning is its assumption that the fact Schlaegel’s testimony was properly received is conclusive of its force and weight. However, the fact evidence is admissible for some purpose does not make it admissible for all purposes. This is why a trial court is obliged to apply the law to the record.

The gist of Schlaegel’s testimony concerning fear as a factor in reducing the land’s value is that such fear would result from a prospective purchaser’s impression the topping of the trees and placement of lights signified planes would be flying low over the land. While Schlaegel knew such fear was unwarranted from the taking of a clearance rather than an avigation easement, he asserted he would simply tell a prospective buyer the easement was “to provide clearance for safe and efficient operation of planes.” That is, if he were attempting to sell the land he would tell the prospect only the ptirpose of the easement but not the nature and extent of the rights acquired under it. The credibility of this evidence was for the jury. It was for the jury to say whether it believed a seller of the property would not attempt to allay an erroneous apprehension that the easement gave defendants avigation rights.

Without an understanding of the nature and scope of the easement the jury would be in no position to evaluate Schlaegel’s testimony. Under the court’s instructions the jury would not know anything more about the distinction between a clearance and avigation easement than a buyer from Schlaegel. What Schlaegel’s testimony meant in terms of the legal issues in the case was a matter upon which the record demanded (and defendants requested) appropriate guidance for the jury.

Even if trial court would have been justified in refusing to give the requested instructions as written, they established a duty in the court to give correct instructions on the material matters involved as to which the instructions were otherwise silent. Lehman v. Iowa State Highway Commission, supra; Law v. Hemmingsen, 249 Iowa 820 , 89 N.W.2d 386 (1958).

The majority’s conclusion that the “instructions as a whole” properly explained the rights acquired by the clearance easement is unsupportable. The rights were neither explained nor defined in any instruction except those refused. The result reduces our rule as to error in refusal of requested instructions to a mere form of words.

I would reverse and remand the case for new trial.

REES, UHLENHOPP, and HARRIS, JTJ., join in this dissent.