Alberson Cemetery Association v. Fuhrer
| Decision Date | 05 January 1923 |
| Docket Number | 24,076 |
| Citation | 137 N.E. 545,192 Ind. 606 |
| Parties | Alberson Cemetery Association v. Fuhrer |
| Court | Indiana Supreme Court |
From Adams Circuit Court; E. E. McGriff, Special Judge.
Condemnation proceedings by the Alberson Cemetery Association against Daniel Fuhrer. From the judgment rendered, the association appeals. (Transferred from the Appellate Court under § 1392 Burns' Supp. 1918, Acts 1915 p. 149, cl. 9.)
Reversed.
Abram Simmons, Charles G. Dailey, Virgil M. Simmons, Dore B. Erwin and John J. Kelly, for appellant.
Appellant is a corporation organized under § 4291 Burns 1914 (Acts 1913 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 $ 500, 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 §§ 4442-4444 Burns 1914, being Acts 1889 p. 302, Acts 1905 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 as 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." §§ 4443, 4444 Burns 1914, Acts 1889 p. 302. 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 provided herein." § 929 et seq. Burns 1914, Acts 1905 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. § 934 Burns 1914, Acts 1905 p. 59. And that, upon exceptions being filed to their report, "the cause shall further proceed to issue, trial and judgment as in civil actions." § 936 Burns 1914, Acts 1905 p. 59.
The amendatory act (§ 4442 Burns 1914, supra) contained an emergency clause (Acts 1905 p. 120, § 2), and took effect March 3, 1905, while the act concerning proceedings in eminent domain did not contain such a clause (Acts 1905 p. 59) and did not take effect until April 15, of that year. § 248 Burns 1914, 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. (1904), 163 Ind. 288, 290, 69 N.E. 546.
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 power 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 appropriate lands by any person, corporation or other body for any purpose, by authority of any law in force when it took effect, and the court did not err in following the procedure outlined in that act, nor in submitting the questions of damages to a jury. And under the provisions of that act it was not error to refuse to give requested instructions to the effect that the jury should consider only the value of the lands appropriated, and not the damage to any other lands in assessing damages, nor was it error to permit the landowner to...
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