Hanrahan v. Fox

l.highway: o\rae?.e's';ioint I. It appears that the plaintiff was the owner, in his own right, of the northwest quarter of the northwest quarter of section twenty-four, and that the northeast quarter of section twenty-three was owned by plaintiff and one Mathias Hanralian, jointly.

The plaintiff moved the the court for leave to make Mathias TTa.nrfl.ba.-n a party plaintiff with him. The motion was overruled.

There was no error in this ruling. ' Mathias Hanrahan did not claim damages before the board, and a claim could not properly be made for him upon appeal. He did not ask damages, and plaintiff could not recover for him.

_ ._. -• II.. The plaintiff offered to prove the damages to the northeast quarter of section twenty-three by reason of the location of the proposed road. The evidence was excluded by the court. This we think was erroneous. It was admitted that plaintiff was the owner of an undivided one-half of the land. He was therefore entitled to recover damages to the extent of his ownership. We know of no rule that would prevent such recovery because the other joint owner neglected or refused to join with him in making the claim. There could be no valid objection to proving the damages to the whole tract. The damages to plaintiff’s interest therein could then be ascertained by a simple mathematical calculation.

_._. fence. III. The testimony of the witnesses fixed the damages to the forty acres owned by the plaintiff in his own right at not less than ten nor more than fifteen dollars, for the actual value of the land taken, and thirty-five dollars as the cost of building forty rods of fence made necessary by the establishment of the road.

The court excluded the testimony as to the cost of building the fence, and assessed the amount of plaintiff’s damages at $15.

*104The opinion in the case of Henry v. Dubuque & Pacific R. R. Co., 2 Iowa, 288, is an elaborate exposition of the true method of arriving at the compensation due the owner for an appropriation of his land for public purposes. The decision in that case has been followed since that time, by the courts of this State, and we see no reason to establish other and different rules. It is there held that the owner should not be allowed for fence as fence, in the assessment of damages. That “it will not do to say that the proprietor will have to fence his land, therefore he should be allowed some definite price for some particular kind of fence.” “That, if by the establishment of the road the land is thrown open and left in a manner unfenced, this fact may enter into the consideration in arriving at the depreciated value of the remaining premises.”

We need not further repeat the rules laid down in that opinion. The court in this case, and we think properly, excluded the evidence as to the cost of a particular kind of fence.

IY. The amount of damages allowed by the Circuit Court %yas the same as was allowed by the Board of Supervisors. The taxation of costs to the plaintiff was erroneous.

Section 963 of the Code provides that “if the appeal has been -taken by the claimant, the petitioner for the highway, or the county, must pay the costs occasioned by the appeal.” It is not provided • that the payment of costs in cases where the claimant appeals shall be contingent upon the amount of damages allowed by the Circuit Court.

Reversed.