Chicago, L. & E. Ry. Co. v. Wysor Land Co.

• Citation: 163 Ind. 288,69 N.E. 546
• Parties: CHICAGO, L. & E. RY. CO. v. WYSOR LAND CO.
• Decision Date: 14 January 1904
• Court: Supreme Court of Indiana

163 Ind. 288

69 N.E. 546

CHICAGO, L. & E. RY. CO.

v.WYSOR LAND CO.¹

Supreme Court of Indiana.

Jan. 14, 1904.

Appeal from Circuit Court, Delaware County; Joseph G. Leffler, Judge.

Condemnation proceedings by the Chicago, Indiana & Eastern Railway Company against the Wysor Land Company. From a judgment in favor of defendant after trial on its exceptions to an award of damages, the railroad company appeals. Transferred from the Appellate Court under section 1337u, Burns' Rev. St. 1901; Acts 1901, p. 590, c. 259. Affirmed.

Bingham & Long, for appellant. White & Young and Warner & Brady, for appellee.

MONKS, J.

Appellant filed an instrument of appropriation in the court below and sought to appropriate for its right of way certain real estate owned by appellee. Appraisers were appointed, who made and filed their award. Appellee, within the time allowed, filed written exceptions in the clerk's office, claiming that the damages awarded were inadequate. The court overruled appellant's demurrer for want of facts to appellee's third exception. A trial of said cause by a jury resulted in a verdict, and, over a motion for a new trial, a judgment in favor of appellee.

It is insisted by appellant that the court erred in overruling its demurrer to the third paragraph of exceptions. Appellant has failed to set out said paragraph, or the substance thereof, in its brief, as required by clause 5 of rule 22 (55 N. E. vi), but as the same is given in full in appellee's brief, the defect in appellant's brief is harmless, because we can determine said question from an examination of the briefs. The third paragraph of exceptions alleged, in substance, that certain described lots in addition to those mentioned in the instrument of appropriation were appropriated in whole or in part by the strip of land described in such instrument. The same was clearly sufficient to withstand the demurrer for want of facts. If there were other allegations which were insufficient or improper, the remedy was by a motion to strike out, or objections to any evidence in support thereof.

It is next insisted by appellant that the court erred in submitting the question of damages to a jury. If the exceptions filed to an award in such a case as this go to the regularity of the proceeding, and are sustained, a new appraisement will be ordered, to which exception may be filed the same as to the first award. But if the exceptions go only to the amount of damages, this court has uniformly held that either party may demand and have a jury trial. Louisville, etc., R. Co. v. Dryden, 39 Ind. 393, 395;Lake Erie, etc., R. Co. v. Heath, 9 Ind. 558, and cases cited; Hughes v. Lake Erie, etc., R. Co., 21 Ind. 175, 176; Barrett v. Carthage, etc., Co., 16. Ind. 105, 106; Piper v. Connersville, etc., Co., 12 Ind. 400, 403;Swinney v. Fort Wayne, etc., R. Co., 59 Ind. 205, 218; Woollen's Special Proc., § 266. It has been the uniform practice of the trial courts to submit the question of damages to a jury. Ohio, etc., Co. v. Kerth, 130 Ind. 314, 30 N. E. 298;Lake Erie, etc., R. Co. v. Kinsey, 87 Ind. 514;Chicago, etc., R. Co. v. Curless, 27 Ind. App. 306, 60 N. E. 467. At the trial of said cause witnesses on behalf of appellee were permitted by the court, over objection of appellant, to give their opinion as to the value of each lot before the right of way over the same was appropriated by appellant and the value after the appropriation. Appellant insists that the admission of evidence as to the value of said lots after the appropriation was to permit the witness to give his opinion of the damages done by the construction of the road, and, further, that such evidence is expressly prohibited by the statute in such cases, which provides that “no deduction shall be made for any benefit that may be supposed to result to the owner from the contemplated work.” There has been some confusion in the cases in this state on this subject. It has been uniformly held, however, that it was error to permit a witness to give an opinion as to the amount of damages. Yost v. Conroy, 92 Ind. 464, 465, 47 Am. Rep. 156, and cases cited. In Hagaman v. Moore, 84 Ind. 496-a proceeding to establish a public highway-it was held that opinions of witnesses were not admissible to show the values of the land across which the road was to be located “with and without the road.” This case was expressly disapproved on this question in Yost v. Conroy, 92 Ind. 464, 47 Am. Rep. 156. It was held in said case (pages 468-470, 92 Ind., 47 Am. Rep. 156) that when there is no law excluding benefits from consideration in estimating damages, or when the question is one affecting the right to assess benefits (as in highway and ditch cases), a witness may state his opinion of the value of the land without the proposed ditch or highway and what its value would be with the highway or drain. It would seem, therefore, that in cases where the law excludes benefits from consideration in estimating damages (as in railroad appropriation cases), the witness may testify as to the value of the property without the railroad and the value with the railroad, not taking into account any supposed benefit the road, when constructed, would be to the land. Under this rule, however, appellant cannot complain of the action of the court, for the reason that, if the witness did not, in his opinion of the value after the appropriation, exclude the supposed benefits, the party injured thereby was the appellee, not the appellant. If any supposed benefits were considered by the witness, the value after the appropriation would be greater than if benefits were excluded. Appellee might be injured by such evidence, but not appellant. In the following railroad appropriation cases the method of proving damages approved in Yost v. Conroy, supra, that a qualified witness may be asked his opinion of the value of the land a part of which is appropriated before and after the appropriation was adopted by the trial court, and the same were not reversed: Evansville, etc., R. Co. v. Fettig, 130 Ind. 61, 62, 63, 29 N. E. 407;Ohio, etc., R. Co. v. Kerth, 130 Ind. 314, 319, 320, 30 N. E. 298;Evansville, etc., v. Swift, 128 Ind. 34, 27 N. E. 420. The values of the lands before and after the appropriation were facts which the jury was authorized to consider in determining the amount of damages. This is not, however, the only mode of showing the amount of the damages sustained by the location of a railroad. In assessing the amount of damages the jury are not required as a matter of law to accept the opinion of witnesses as to value, but must exercise their own judgment in determining that question, as well as the amount of the damages, after considering all the evidence in the cause which may throw any light on that subject. Patterson v. Boston, 20 Pick. 159, 166;Murdock v. Sumner, 22 Pick. 156, 158;Chicago, etc., R. Co. v. Drake, 46 Kan. 568, 26 Pac. 1039;Kansas, etc., R. Co. v. Ryan, 49 Kan. 1, 16, 30 Pac. 108; The Conqueror, 166 U. S. 110, 131-133, 17 Sup. Ct. 510, 41 L. Ed. 937;Head v. Hargrave, 105 U. S. 45, 26 L. Ed. 1028;City of Kansas v. Butterfield, 89 Mo. 646, 1 S. W. 831;Johnson v. Chicago, etc., R. Co., 37 Minn. 519, 521, 35 N. W. 438;McReynolds v. Burlington, etc., R. Co., 106 Ill. 152, 155, 156;Louisville, etc., R. Co. v. Mason, 79 Tenn. 116, 120-124;Humphries v. Johnson, 20 Ind. 190;Pittsburgh, etc., R. Co. v. Town of...