                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1576
                                Filed April 5, 2017


CITY OF NORTH LIBERTY, IOWA,
      Plaintiff-Appellee,

vs.

GARY WEINMAN,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Johnson County, Lars G.

Anderson, Judge.



       A landowner appeals a condemnation award of $25,000 for a partial taking

of his property. AFFIRMED.



       Wallace L. Taylor of Law Offices of Wallace L. Taylor, Cedar Rapids, and

S.P. DeVolder of The DeVolder Law Firm, Norwalk, for appellant.

       Robert W. Goodwin of Goodwin Law Office, P.C., Ames, and Scott C.

Peterson, City Attorney, North Liberty, for appellee.



       Considered by Doyle, P.J., Tabor, J., and Mahan, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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TABOR, Judge.

       Johnson County landowner Gary Weinman appeals a jury’s verdict

requiring the City of North Liberty to pay him $25,000 as compensation for

easements across his 70-acre property to supply sanitary sewer lines to a new

high school.    Because the city’s expert witness, an experienced appraiser,

presented substantial evidence to support the verdict, we affirm.

       Private property may not be taken for public use without just

compensation. See U.S. Const. amend. V; Iowa Const. art. I, § 18. Eminent

domain is the term used for the power of a government entity to take private

property for a public use without the owner’s consent. Comes v. City of Atlantic,

601 N.W.2d 93, 95 (Iowa 1999). Cities are conferred the right of eminent domain

under Iowa Code section 6A.4(6) (2015). Iowa Code chapter 6B sets out the

procedures for the condemnation of private property under eminent domain.

       This case concerns the city’s condemnation efforts for a temporary

construction easement (1.1 acres for four months) and a permanent easement

(0.75 acre) on Gary Weinman’s 70.55 acres.1                 In February 2015, the

compensation commission decided the city should pay Weinman $75,000 in

damages. See Iowa Code § 6B.14. The city appealed to the district court,

claiming the damages were excessive. See id. § 6B.18. Weinman requested a

jury trial, and the matter was tried de novo to the jury as an ordinary proceeding




1
  The city obtained the easements to install a trunk sewer line to service the new high
school being constructed by the Iowa City Community School District.
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on September 6 and 7, 2016.2 See id. § 6B.21 (ordinary proceeding); see also

Wilkes v. Iowa State Highway Comm’n, 172 N.W.2d 790, 792-93 (Iowa 1969)

(stating appeal from condemnation commission’s award is de novo).

       The only issue to be resolved in the city’s appeal to the district court was

“the amount of damages owed by [the city] to the landholder due to the taking.”

Johnson Propane, Heating & Cooling, Inc. v. Iowa Dep’t of Transp., ___ N.W.2d

___, 2017 WL 836826, at *3 (Iowa 2017).              Here, where only a portion of

Weinman’s property was taken by the city for the easements, the damages are

measured as “the difference between the fair market value of the whole property

before acquisition and the fair market value of the property remaining after the

acquisition.” Id.

       At trial, the jury heard evidence, without objection, from the city’s expert,

Dennis Cronk. Cronk, who is a certified appraiser with almost twenty years of

experience, testified appraisals involve “a range of value.          It’s not an exact

science, and when we do this type of work, we try and err towards the high end

of the range. We’re stuck with the market evidence we have . . . and resolve

ambiguities in favor of the property owner.” After explaining four comparable

properties, Cronk opined the difference in value of Weinman’s overall property




2
   Before trial, the city moved in limine to prevent the condemnation commission’s award
from being entered into evidence. Weinman did not object, and the court granted the
city’s motion. See 1999 Iowa Acts, ch. 171, § 13 (striking from section “6B.21 Appeals”
the following: “The appraisement of damages by the compensation commission is
admissible in the action.” (codified at Iowa Code § 6B.21 (2001))). Thus, as required by
statute, the jury did not learn of the commission’s award. See id. Accordingly, we do not
consider any of Weinman’s appellate arguments premised on the commission’s award, a
value not in evidence. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).
                                             4



before and after the easements was $25,000.3 Weinman’s counsel conducted

an extensive cross-examination, including the use of a hypothetical that led to a

calculated difference of $98,348 in value before and after the taking. But Cronk

opined that value was “not the measure of damages” because “we take the value

of the whole before and after.”4 (Emphasis added.) He testified:

       You can’t just pick out which portions of the property you want to
       put a value on and say that value is the same across the entire—
       every single acre on that property. That’s an overall value of
       [seventy] acres taking into account all the positives and negatives
       of the entire [seventy] acres.

       In the defense case, Weinman discussed photographic exhibits showing

features of his property, including his house, garage, barn, a pond, wooded

areas, restored prairie, and Muddy Creek, which ran parallel to the easement.

Weinman also presented evidence from Kevin Hanick, a real estate broker and

developer.    While acknowledging he was not a certified appraiser or a civil

engineer, Hanick opined the easement impacted the entire ten-acre area in the

northeast portion of Weinman’s property. Having heard the evidence for both

sides, the jury returned a $25,000 verdict, and the district court entered judgment

on the verdict.

       Weinman now appeals, raising a single issue—did substantial evidence

support the jury’s verdict? The city’s appeal was tried to the district court de

novo, as an ordinary proceeding. See Iowa Code § 6B.21; Burnham v. City of

3
  Cronk’s appraisal report, Exhibit 4, was submitted into evidence.
4
  The parties’ stipulation, read to the jury before testimony was presented, stated: “[F]air
and just compensation is the difference in the fair and reasonable market value of the
property as a whole before the acquisition and the fair and reasonable market value of
the property immediately after the acquisition of the easement on February 13, 2015.”
See Townsend v. Mid-Am. Pipeline Co., 168 N.W.2d 30, 33 (Iowa 1969).
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West Des Moines, 568 N.W.2d 808, 810 (Iowa 1997).                 We review ordinary

proceedings for the correction of errors at law. Iowa R. App. P. 6.907. If a jury’s

verdict is supported by substantial evidence in the record, we are bound by it.

See Beeman v. Manville Corp. Asbestos Disease Comp. Fund, 496 N.W.2d 247,

254 (Iowa 1993). Because an award of damages in a condemnation action is

“peculiarly within the province of the trier of fact,” we will not “interfere absent a

showing the award was wholly unfair or unreasonable.” See Sunrise Developing

Co. v. Iowa Dep’t of Transp., 511 N.W.2d 641, 645 (Iowa Ct. App. 1993) (“In jury

trials, the controverted fact issues are for the jury to decide, not the court.”).

       Weinman has failed to show the award of damages was “wholly unfair and

unreasonable.” See id. While Weinman’s expert witness, Hanick, differed from

appraiser Cronk in his view of how the easements affected the property, the

jurors were entitled to accept whatever portion of the experts’ opinions they found

convincing. See Kautman v. Mar-Mac Cmty. Sch. Dist., 255 N.W.2d 146, 148

(Iowa 1977).     Our role is not to question whether the evidence may have

supported a higher award but, rather, whether substantial evidence supports the

award made by the jury. We find substantial evidence to support the $25,000

compensation award.

       AFFIRMED.
