Chicago, I.&E. Ry. Co. v. Loer

• Decision Date: 23 April 1901
• Citation: 27 Ind.App. 245,60 N.E. 319
• Court: Indiana Appellate Court
• Parties: CHICAGO, I. & E. RY. CO. v. LOER.

27 Ind.App. 245

60 N.E. 319

CHICAGO, I. & E. RY. CO.

v.LOER.¹

Appellate Court of Indiana.

April 23, 1901.

Appeal from circuit court, Grant county; H. J. Paulus, Judge.

Action by the Chicago, Indiana & Eastern Railway Company against George Loer to secure right of way. From a judgment for defendant, plaintiff appeals. Affirmed.Steele & Kersey, for appellant. St. John & Charles and Henry & Elliott, for appellee.

HENLEY, C. J.

This was an action commenced by appellant, under sections 3906, 3907, Rev. St. 1881, to acquire a right of way 100 feet in width and 1,835 feet long across a tract of land, containing 60 acres, belonging to appellee. Appraisers were appointed, and proceeded to the discharge of their duties, and returned their appraisement to the clerk of the proper court. Both parties excepted to the appraisement, and the cause went to the circuit court for trial in due course. There was a trial by jury, resulting in a verdict for $800 in favor of appellee, for which amount judgment was rendered over appellant's motion for a new trial. Appellant properly assigns as error in this court the overruling of its motion for a new trial. Six reasons are assigned in the motion for a new trial: “(1) The verdict of the jury is contrary to law. (2) The verdict of the jury is contrary to the evidence. (3) The damages assessed by the jury are excessive. (4) Error in the assignment of the amount of recovery, in that the same is too large. (5) Error of law occurring at the trial, and excepted to by the appellant, in this: that the court erred in overruling the appellant's application to have the jury sent to view the premises in controversy. (6) Error of law occurring at the trial, and excepted to by the appellant, in this: that the court erred in sustaining the appellee's objection to the question propounded to the witness Fremont Wilson, as follows: ‘You may state to the jury what the fact is about the road being constructed through the Loer land, and thence to the Sims and Franklin ditch, with a view to its drainage.”’ We will dispose of the reasons in their numbered order.

It is sufficient to say of the first, second, third, and fourth reasons assigned in the motion for a new trial that while the evidence was very conflicting as to values, and as to the damage done appellee by the appropriation, there was abundant evidence justifying the verdict of the jury, and, under the evidence, we could not say that the verdict was excessive.

In the fifth reason for a new trial, complaint is made of the action of the court in refusing to send the jury to view the premises. It seems that the statute in this state permits the court, in its discretion, to require the...