Alberson Cemetery Ass'n v. Fuhrer
| Decision Date | 06 January 1923 |
| Docket Number | No. 24076.,24076. |
| Court | Indiana Supreme Court |
| Parties | ALBERSON CEMETERY ASS'N v. FUHRER. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Adams County; E. E. McGriff, Judge.
Condemnation proceeding by the Alberson Cemetery Association against Daniel Fuhrer. From the judgment for damages, the association appeals. Transferred from Appellate Court under Acts 1915, c. 76, p. 150, subd. 9. Reversed, with directions to award new trial.
Abram Simmons, Charles G. Dailey, and Virgil M. Simmons, all of Bluffton, and John J. Kelly, of Indianapolis, for appellant.
A. W. Hamilton, of Bluffton, and C. J. Lutz, of Decatur, for appellee.
Appellant is a corporation organized under Burns' 1914, § 4291 (Acts 1913, c. 199, p. 597) of the Voluntary Association Act, to acquire, hold, and control grounds for cemetery purposes, without pecuniary profit to the stockholders. It commenced this action by filing in the circuit court a petition for the appropriation of a tract of land 204 by 207 feet, containing 97/100 of an acre, adjoining an existing cemetery under its control. Appraisers were appointed, who appraised that tract at $300, but certified that they fixed the damages to other real estate owned by appellee at $2,500, making a total of $3,000.
Each party excepted to the award, and the cause was docketed in the circuit court, which ruled that it should be tried by a jury, that the jury should be instructed that appellee was entitled to recover for damage to that part of his farm not taken, as well as for the value of what was taken, and that the owner of the property taken was entitled to the actual value of the tract taken for the highest or best use to which it “should be put,” and that, if it had an actual value for a specified use and was adapted to such use, he was entitled to that value, and that appellant was not entitled to instructions that in fixing the damages the jury should consider only the value of the tract sought to be appropriated, and had no right to consider damages to any other lands; also that appellee (the defendant) had the right to open and close the case, as having the burden of proof. Exceptions were reserved to each of said rulings of the court. The jury returned a general verdict in favor of appellee, assessing his damages at $2,000, on which the court rendered judgment for that amount, with costs.
The proceeding was brought under Burns' 1914, §§ 4442-4444, being Acts 1889, c. 157, p. 302, Acts 1905, c. 69, p. 120. The amendment of the original act in 1905 consisted of granting authority to condemn land for a cemetery, as well as for the enlargement of an existing cemetery, and extending that authority to cities and towns as well its to cemetery corporations. As first enacted the original statute provided only that appraisers should be appointed by the court “to appraise and assess the value” of lands appropriated, that they should be sworn “to make a fair, true and honest appraisement of said real estate,” and that upon exceptions to their report for any cause “a trial thereon may be had in said court.” Sections 4443, 4444, Burns' 1914, supra. And the amendment did not change the statute in those particulars. But in 1905, “an act concerning proceedings in eminent domain” was passed, which provides that-
“Any person, corporation *** having the right to exercise the power of eminent domain for any public use, under any statute, existing or hereafter passed, and desiring to exercise such power, shall do so only in the manner provided in this act except as otherwise providedherein.” Section 929 et seq., Burns' 1914 (Acts 1905, c. 48, p. 59).
The statute cited then declares rules of procedure in such cases, including a provision that the appraisers shall be sworn to determine and report, among other items, the damages to the residue of the land of such owner to be caused by taking out the part sought to be appropriated. Section 934, Burns' 1914. And that, upon exceptions being filed to their report, “the cause shall further proceed to issue, trial, and judgment as in civil actions.” Section 936, Burns' 1914.
The amendatory act (section 4442, supra) contained an emergency clause (Acts 1905, c. 69, p. 121, § 2), and took effect March 3, 1905, while the act concerning proceedings in eminent domain (section 929 et seq.) did not contain such a clause (Acts 1905, c. 48, p. 59 et seq.) and did not take effect until April 15th of that year. Burns' 1914, § 248, note.
And the courts had previously held many times that, where exceptions were taken to the amount of the assessment of damages in actions under like procedure to appropriate lands for the use of corporations operating railroads or turnpikes, the issues thus joined were triable by jury. Chicago, etc., R. Co. v. Wysor Land Co., 163 Ind. 288, 290, 69 N. E. 546.
[1][2][3] The trial court followed the rules laid down by said act concerning procedure, and submitted to a jury for trial issues as to the value of the tract appropriated, and also as to the damage to the residue of appellee's farm. Appellant insists that this act of 1905 concerning proceedings in eminent domain does not apply to a proceeding for the appropriation of lands to enlarge a cemetery, notwithstanding its recital that any person, corporation, or other body having the right to exercise the owner of eminent domain shall do so only in the manner provided in that act, as quoted above. As to this point counsel are in error. The act by its express terms embraces every proceeding to...
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