Skaff v. City of Sioux City

Snell, J.

This is an appeal involving compensation due property owners incident to, but not for, the taking of real property by eminent domain. On the issue before us the facts are not in dispute. By agreement the present issue was separately tried to the court without a jury.

Plaintiffs, as owners, claim that in a condemnation appeal involving their real estate they should be awarded the cost of moving personal property from the condemned premises. They claim cost of moving is a “reduction in value” under section 472.14, Code of Iowa. From an adverse ruling by the trial court plaintiffs appeal.

Defendant, City of Sioux City, in January 1962 by condemnation proceedings appropriated real estate of plaintiffs on and *51from which plaintiffs operated a wholesale and retail roofing and building supply business. The taking included all of the real estate but none of the personal property located thereon. Plaintiffs acquired another location for their business and moved their merchandise and equipment from the condemned premises to the new location. The merchandise was mostly roofing, heavy materials and equipment. Plaintiffs used their own employees and equipment and computed the cost of moving to be $5318.84. A platform was dismantled and a few boards split, but no claim is made for these items. There is no claim that personal property was damaged or destroyed. Plaintiffs claim that their personal property was “reduced in value” in the amount of their moving expense within the meaning of section 472.14, Code of Iowa, and that they are entitled to compensation to that extent.

Plaintiffs’ damage because of the appropriation of their real estate has been separately determined and is not involved here.

Section 472.14, Code of Iowa, relates to appraisement by commissioners of property sought to be condemned. In 1959, chapter 318, Acts of the Fifty-eighth General Assembly, amended this section as it appeared in the 1958 Code by adding the following words, “In assessing the damages the owner or tenant will sustain, the commissioners shall consider and make allowance for personal property which is damaged or destroyed or reduced in value.” We have recently considered this amendment but from an entirely different factual premise. See Estelle v. Iowa State Highway Commission, infra.

In a recent case, Freshwater v. Wildman, 254 Iowa 404, 117 N.W.2d 910, we had before us the question of consequential damages. In considering section 472.14 it was held that the statutory provision for determination of consequential damages did not on appeal change the rule as to measure of damage. In the case before us plaintiffs’ claim is not based on and we need not consider consequential damages. The sole question presented to the trial court and to us is whether expense of moving merchandise and movable equipment constitutes reduction in value under section 472.14, 1962 Code of Iowa.

The word value is defined in Webster’s Third New International Dictionary, Unabridged, in a number of ways. The word means the amount of a commodity, service, or medium of *52exchange that is the equivalent of something else; the monetary worth of something; the marketable price usually in terms of a medium of exchange.

In re Estate of McGhee v. State, 105 Iowa 9, 15, 74 N.W. 695,' holds that when the word “value” is applied to property and no qualification is expressed or implied it means the price which the property will command in the market.

It is well settled in Iowa that when there is an entire taking the measure of damage is the reasonable market value at the time, of the condemnation. Kaperonis v. Iowa State Highway Commission, 251 Iowa 415, 416, 100 N.W.2d 901.

Volume 44, Words and Phrases, “Value”, beginning on page 74 sets forth the judicial definitions of the word “value” in connection with “market value.” The generally accepted definition is in accord with the McGhee case, supra. Bearing in mind that we are not considering consequential damages or value in use to the owner the consensus of the best considered cases is that the word “value” in the statute means market value. The cases hold that “market value”, “value” and “cash value” are synonymous.

What an article or stock of merchandise will command on the market (market value) is not controlled by any determination of the owners’ profit or loss, handling charge or cost of business operation.

Increased handling charge might reduce the owners’ opportunity for profit and might be a consequential damage incident to the condemnation of real estate, but it does not reduce the value of the merchandise on the open market.

Plaintiffs testified that except for fluctuation in the market the price of merchandise was exactly the same in the new and old locations.

Article I, section 18, Constitution of Iowa, provides that private property shall not be taken for public use without just compensation being first made or secured. In the case before us plaintiffs do not claim that there was any taking of personal property. Their claim is based solely on the wording of the cited statute.

We are not considering the compensation due for the taking of a leasehold. A tenant for years is the owner of an *53estate; a leasehold is property subject to condemnation upon the payment of just compensation. A leasehold estate is separate and distinct from the estate of the owner, i.e., the fee. Des Moines Wet Wash Laundry y. City of Des Moines, 197 Iowa 1082, 1085, 198 N.W. 486, 34 A. L. R. 1517; Korf v. Fleming, 239 Iowa 501, 516, 32 N.W.2d 85, 3 A. L. R.2d 270. See also Wicks v. Iowa State Highway Commission, 254 Iowa 998, 119 N.W.2d 781.

The factual situation before us is not the same as in Des Moines Wet Wash case, supra, nor in Estelle v. Iowa State Highway Commission, 254 Iowa 1238, 119 N.W.2d 900. In each of those eases there was a condemnation of a leasehold with equipment particularly adapted to the business. The cases did not involve expense of moving merchandise held for sale and having the same market value in the new location as in the old.

Plaintiffs rely primarily on language in the Des Moines Wet Wash case, -supra. In that case the City of Des Moines condemned land on which was situated a building used and occupied by plaintiff, lessee. Plaintiff operated a laundry in the leased building. The lease had three and one-half years to run. The condemnation terminated plaintiff’s business and destroyed its plumbing, equipment and steam connections installed at its own expense. Plaintiff was compelled to tear up and move its machinery and appliances to another location. It was held that among the several elements bearing upon value of plaintiff’s leasehold the jury might consider the fair and reasonable cost of removing the machinery and equipment and the fair and reasonable cost of cartage or transportation for a reasonable distance. The question was the damage suffered by taking of the leasehold and not the per se reduction in value of personal property. The case does not hold that moving expense is a separate, distinct and recoverable cost. Neither does it hold that expense of moving merchandise is recoverable. The opinion says on page 1089 of 197 Iowa Reports: “There is a distinction made between fixtures as such, and stocks of goods or personal property, as contradis-tinguished from fixtures.”

In Estelle v. Iowa State Highway Commission, supra, plaintiff-lessee was put out of business. He could not find another suitable location and sale of his equipment was his only recourse. *54Moving expense was not involved. The question was the value of his leasehold. Equipment particularly adapted to the business and its reduction in value to salvage value were elements to be considered. No such situation appears in the case at bar.

The words being considered in the case before us are by statute applicable to both owner and tenant. The Wet Wash and Estelle cases just mentioned are distinguishable from the case at bar because of the difference in the personal property involved. The distinguishing feature is not the difference between the legal estate of an owner or tenant. In the cited cases there was a reduction in value of the property condemned. Here there is no reduction in the market value of the merchandise involved.

In Volume 69 A. L. R.2d, beginning on page 1453, there appears an extensive annotation on the cost to property owner of moving personal property as element of damages or compensation in eminent domain proceedings. On page 1454 it is said: “The view sustained by the great majority of the cases is that an owner of real property taken or damaged in eminent domain is not entitled to compensation for the cost of removal of personal property from the premises.”

On page 1461 it is said:

“There have been few clear holdings that an owner of real property taken in eminent domain may be allowed his cost of moving personal property as an independent item of damages. Some of the decisions have given no reason for their deviation from the normal result of no recovery, while others, although based in part on the court’s view of general principles that Should apply, have been further supported by particular statutory or constitutional provisions.”

On page 1462 it is said:

“Failure of the legislative authority to supply direct approval of payments for expense of removing personal property incident to eminent domain proceedings has been referred to as supporting adherence to the general rule denying such recovery.”

In line with substantial authority we conclude that the words “reduced in value” as they appear in section 472.14 of the *55Code do not provide for compensation incident to the moving of merchandise from condemned real estate when as here there has been no showing of any reduction in the market value thereof.

It is not for us to read into the statute enumerating com-pensable items something that is not there. Had the legislature intended that the cost of moving merchandise should be a com-pensable item incident to the condemnation of real estate it would have so provided.

The ease is — Affirmed.

Garfield, C. J., and Thompson, Moore and Stuart, JJ., concur. PetersoN, Larson and Thornton, JJ., dissent. Hays, J., not sitting.