Chicago, Indianapolis And Louisville Railway Company v. Ader

• Decision Date: 04 November 1915
• Docket Number: 22,695
• Citation: 110 N.E. 67,184 Ind. 235
• Parties: Chicago, Indianapolis and Louisville Railway Company v. Ader et al
• Court: Indiana Supreme Court

110 N.E. 67

184 Ind. 235

Chicago, Indianapolis and Louisville Railway Company v. Ader et al

No. 22,695

Supreme Court of Indiana

November 4, 1915

Rehearing Denied January 7, 1916.

From Montgomery Circuit Court; Jerre West, Judge.

Condemnation proceedings by the Chicago, Indianapolis and Louisville Railway Company against Adam Ader and others. From the judgment rendered, the railroad company appeals.

Affirmed.

Thomas & Foley, H. R. Kurrie, E. C. Fries and C. C. Hine, for appellant.

Hays & Murphy and Johnston & Johnston, for appellees.

OPINION

Erwin, J.

This was an action by appellant to condemn certain real estate belonging to appellees, for railroad right of way. The original proceedings were filed in Putnam County. Appraisers were appointed and made report, assessing the damages as to each tract of land affected. To this report of the viewers appellant filed exceptions. Trial by jury and verdict for appellees. Appellant assigns errors in this court as follows (1) the court erred in overruling appellant's motion to amend its instrument of appropriation in said cause; (2) the court erred in overruling appellant's motion for a new trial.

During the progress of the trial and after the defendants (appellees) had rested, appellant moved the court for leave to amend its instrument of appropriation by inserting therein the following: "Said railway company will make good and restore any damage done to the tile drainage now in place in and under the right of way sought to be appropriated by this instrument of appropriation which may hereafter occur by reason of the occupancy and use of the lands of the several owners sought to be appropriated, and the right is granted to said several owners to put in such additional tile drainage as they severally may see fit in and across said lands so appropriated. And said railway company agrees to and will, at its own expense, put in and maintain such part of said additional tile drainage, if any, as may be required, under its right of way so acquired, adjoining the lands of said several owners." This application to amend was supported by affidavit of appellant's engineer and the attorneys for appellant, showing that it was at the trial that they first learned that appellees were claiming that the building of the road upon their land would affect their drainage. To this motion and affidavits, appellees filed a counter affidavit showing that this motion was made after they had rested their case and had discharged their witnesses, and that all their witnesses resided in Putnam County, and that they could not secure their return at that time or in time to be heard at the trial of said cause. The whole matter was submitted to the trial court and the offered amendment was rejected. The right to amend pleadings during the trial is within the sound discretion of the trial court and its refusal to permit an amendment is not error unless it is shown that the court has abused its discretion. Evansville Terminal Railway v. Heerdink (1910), 174 Ind. 537, 540, 92 N.E. 548; Whitcomb v. Stringer (1903), 160 Ind. 82, 66 N.E. 443; Chicago, etc., R. Co. v. Hunter (1891), 128 Ind. 213, 27 N.E. 477; 31 Cyc 398, et seq.; Citizens' St. R. Co. v. Heath (1902), 29 Ind.App. 395, 62 N.E. 107. We are of the opinion that the trial court has not abused its discretion. In the motion for a new trial appellant seeks by its first two causes to raise the question of the refusal of the court to allow the amendment and to withdraw the case from the jury and grant a continuance. What we have heretofore said disposes of this assignment.

In the third, fourth and fifth causes for a new trial appellant alleges that the recovery is excessive. The evidence not being in the record no question is presented to this court for review on that point. Besides this ground for a new trial applies to actions in tort only and not to proceedings of this nature. Pittsburgh, etc., R. Co. v. Crockett (1914), 182 Ind. 490, 492, 106 N.E. 875. Cause 5 1/2 is for the reason that the court erred in allowing a certain question to be propounded to a certain witness for the defense. Appellant's brief fails to show that there was any objection to the question or any exception reserved to the ruling of the court in relation thereto; and it is not shown what the answers were, or that they answered the question at all. This presents no question for review.

The sixth cause for a new trial is that the court erred in giving on its own motion instructions Nos. 1 to 9, inclusive. Not having in any way pointed out wherein it is claimed these instructions are erroneous the same is waived. Hoover v. Weesner (1897), 147 Ind. 510, 45 N.E. 650, 46 N.E. 905; City of Fort Wayne v Patterson (1900), 25 Ind.App. 547, 559, 58 N.E. 747. The seventh cause for a new trial is that the court erred in giving instructions Nos. 1, 2, 3 and 4 tendered by appellees. Appellant makes no point as to instructions Nos. 1, 2 and 4, hence waives all error as to them. Instruction No. 3 reads as follows: "In proceedings of this kind, the law contemplates the assessment of damages not only for the land taken, but for the injury to the remainder of the land of the defendants which result or might result from the appropriation of the land and the proper construction, maintenance and operation of the railroad thereon, including such lawful...