Burrow v. County of Woodbury

Stevens, J. The case was tried below upon a stipulation of facts from which it appears- that the parties were unable to agree upon an amount to be paid as damages for the right of way; that, following their failure to. so agree, appraisers were appointed by the county auditor to assess the damages; -that same were awarded-by the appraisers in the sum of $1,500 ; that the board, by resolution, attempted to reduce this amount to $1,200; that subsequently thereto, and on November 14, 1923, before possession was taken by the county, appellee signed an instrument denominated an “Easement for Public Highway,” conveying to the county the strip desired for ah expressed consideration of $1,200. This amount, as stated in the deed, comprised the following items; “Bight of way. 1.35 .acres ■. $300.00 . $405.00 Fence 107 rods,2.50 267.50 Damage 527.50 Total $1200.00” The stipulation of the parties further recited that appellee did not, by agreement, expressly waive her right to recover, the balance of the award." ./The award of commissioners or appraisers in condemnation proceedings’ is not binding upon the county or other body hav *789 ing the right of eminent domain, and payment thereof need not be made unless possession is sought. In the absence of a stipulation to the contrary, as in this case, judgment can be entered in the district court upon appeal from the award of the appraisers for costs only. Klopp v. Chicago, M. & St. P. R. Co., 142 Iowa 474; Hartley v. Keokuk & N. W. R. Co., 85 Iowa 455; Richardson v. City of Centerville, 137 Iowa 253; Section 2011, Code of 1897. Section 1527-r3, Code Supplemental Supplement, 1915, relating to highways, provides that: “If the amount of damages so awarded are, in the opinion of the board, excessive, the proceedings shall be dismissed.” The 'statute imposes no limitation upon the power of the board of supervisors to negotiate a settlement with the owner of the property for a smaller amount than that allowed by the appraisers, and, if such owner consents to a reduction thereof, and executes a deed conveying a right of way to the county, we perceive no theory upon which a recovery of the balance of the award could be enforced in an action either at law or in equity therefor. This, of course, is elementary, and appellee does not contend to the contrary. Neither waiver nor agreement to.compromise is pleaded by appellants in their answer. The action of the board of supervisors reducing the amount to $1,200 was without authority and void. Daniel v. Clarke County, 194 Iowa 601. This is not, however, decisive of the questions before us. The instrument executed by appellee, it seems to us, will bear but one construction. The transaction resulting in its execution was independent, and subsequent to the-award and the adoption of the resolution of the board attempting to reduce the amount to $1,200. The consideration expressed in the deed is, of course, subject to explanation by pai*ol, but, in the absence of proof on this P°int, it is presumptively correct. This is especially true where the instrument on its-face expresses the consideration in items specifically covering the matter in dispute. No claim is made by appellee that she was not familiar with the terms of the deed, or that fraud was practiced by appellants in procuring her signature thereto. As possession was not taken on behalf of the *790 county until after the easement deed was executed and delivered, we think the only reasonable inference to. be drawn from all the facts and circumstances shown in the evidence is that the entry was under the deed, and not by virtue of the condemnation proceedings, although they may not have previously been actually dismissed. The resolution adopted by the board was, in effect, a rejection of the award, as well as a finding- that it was excessive. Resner v. Carroll County, 126 Iowa 423, relied upon by appellee, which merely holds that the liability of a county for the services of a physician employed by a local board of health to attend a person afflicted with a contagious disease becomes absolute, when allowed by the board of health, and cannot thereafter be reduced by the board of supervisors, is hardly in point-. The claim in the Besner case was an absolute indebtedness, whereas the claim of appellee became binding upon the county only by acceptance, either express or implied. The board of supervisors had a perfect right to abandon the condemnation proceedings by failing to pay the award or to dismiss the proceedings. We are unable to concur in the result reached below, and the judgment there entered is — Beversed. Faville, C. J., and De Grape and Vermilion, JJ., concur.