Appeal
from Orange Circuit Court; Wilbur W. Hottel, Judge.
HUGHES
Judge.
The
appellants, plaintiffs below, brought this action for an
assessment of damages to their residence property caused by
the construction of State Road 56 as it entered Paoli from
the northeast. Objections were filed to the amended complaint
of the appellant which were sustained, and the court refused
to appoint appraisers to fix the damage. The appellants
refused to plead further, and judgment was rendered against
them and in favor of appellee. From this judgment appellants
appeal.
The
error relied upon for reversal is the refusal of the court to
make an order appointing appraisers, and error
in sustaining appellee's demurrer, in the form of
objections, to appellant's complaint.
The
complaint of appellants, among other things, alleges:
'That
immediately east of the town of Paoli is a steep hill which
slopes toward and within the corporate limits of said town
that Campbell street in said town extends in an easterly and
westerly direction and extends upgrade on that part of the
hill within said town; that Third Street in said town extends
in a northerly and southerly direction and over said hill at
a point near the foot thereof and crosses Campbell Street
that plaintiff's real estate is located in the northwest
corner of the intersection of Third and Campbell Streets;
that Thornton Street, which extends east and west, and Main
Street, which extends in an easterly and westerly direction,
are the first streets north and south, respectively, of
Campbell Street; and that Third Street, as laid out and used
prior to said construction work by the defendant, gradually
rises from Thornton Street, or is upgrade, to Campbell St.,
from which point it gradually declines to Main Street, and
that the highest point in said elevation between Thornton and
Main Streets, is at the intersection of Campbell and Third
Streets as aforesaid.
'That
in said Construction work, State Highway No. 56 has been
relocated in part and especially at and within the corporate
limits of Paoli; that, prior to said construction work, it
entered said town by way of Main Street; that said State
Highway now as so laid out, relocated and constructed by
defendant, through said commission,
enters the town of Paoli from the northeast around the north
side of said hill, curves to the south and intersects Third
Street at a point a short distance north of the intersection
of Third and Campbell Streets and extends over and upon a
part of Third Street as previously laid out and used, to the
south where said highway connects with Main Street, which
said Main Street has heretofore been designated and improved
by said defendant through said commission as State Highway
No. 150; that the point of intersection of said highway No.
56 with Third Street is as aforesaid at the highest point
between Thornton Street and Main Street. That
said state highway as constructed does not meet the grade at
the intersection of Third and Campbell Streets as it existed
before the relocation and construction of said state highway
and that at the highest point between Thornton Street and
Main Street, which is at the intersection of Campbell Street
and Third Street, as aforesaid, the defendant, through said
commission, has constructed the grade of said highway to an
elevation of approximately 11 feet above the grade of said
streets at said intersection. That by reason of the
construction of said grade it was impossible for traffic on
that part of Third Street north of its intersection with
Campbell Street to enter upon said state highway as so
constructed and it was also impossible for traffic on
Campbell Street from the west to enter upon said state
highway from Campbell Street. That, in order to permit
traffic, on Third Street north of Campbell Street to enter
upon said highway, said defendant, through said commission,
has constructed a steep approach on Third Street from the
north to meet the grade of said State Highway; and, to permit
traffic from the west on Campbell Street to enter upon said
highway, defendant, through said commission, has constructed
a steep approach on Campbell Street along the south side of
plaintiff's property to meet the grade of said State
Highway. That by reason of the construction of the grade of
said highway as aforesaid and the construction of said
approaches on Third and Campbell Streets, respectively,
plaintiffs' property is now approximately eleven (11)
feet below the grade of said State Highway and the approaches
at the intersection as so constructed by defendant.
'That,
in the construction of said highway and the grade thereof as
aforesaid, the defendant, through said commission has taken
and acquired lands and rights beyond the limits of Third
Street and Campbell Street and has moved the traveled way of
Third Street so that the center line of the new state highway
is east of the center line of Third Street as previously laid
out and used and that, by reason there of, a strip off the
west side of said street and north of Campbell Street has not
been used in the construction of said grade and approach
thereon, but has been practically abandoned and, as it now
exists, forms a partial 'dead-end'
street by reason of the construction of the approach on
Campbell Street.
'That
in the construction of said highway and the grade and
approaches as aforesaid these plaintiffs have been deprived
of valuable rights in this: That long prior to the
construction of said highway their said lot was on
approximately the same grade as the grades of Third Street
and Campbell Street, respectively, and the buildings thereon
were erected in conformity to the grades of such streets
that, by reason thereof, their said property was afforded the
full use and enjoyment of said streets as to the rights of
ingress, egress, light, vision, air, and drainage; That by
reason of the construction of said grade and approaches the
only means of ingress and egress to and from plaintiff's
premises by means of a vehicle are by way of Thornton Street
hence on Third Street along the west side of said approach on
Third Street as now constructed and, by reason of the
construction of said approach on Third Street, it is
inconvenient and almost impossible to leave said premises in
a vehicle without backing or reversing it to a point on Third
Street beyond the north of the beginning point of the
approach on said street. That, by reason of the construction
of said grade and approaches, water, dirt, mud and filth are
washed down on plaintiff's premises to the great damage
thereof and to the inconvenience and injury of plaintiffs in
the use and occupancy thereof; and the drainage facilities
along said streets have been hampered and damaged. That by
reason of said construction, the use and enjoyment of Third
Street and Campbell Street respectively, as such streets, as
to plaintiffs' said property, has been destroyed, and
that no part of said construction was done and performed as
an improvement of or for the use of said streets as
previously laid out and improved, but...
