Consol. Traction Co. v. Jordan

• Decision Date: 03 October 1905
• Docket Number: No. 5,489.,5,489.
• Citation: 75 N.E. 301,36 Ind.App. 156
• Parties: CONSOLIDATED TRACTION CO. v. JORDAN.
• Court: Indiana Appellate Court

36 Ind.App. 156

75 N.E. 301

CONSOLIDATED TRACTION CO.

v.JORDAN.

No. 5,489.

Appellate Court of Indiana, Division No. 2.

Oct. 3, 1905.

Appeal from Circuit Court, Hendricks County; Thomas J. Cofer, Judge.

Proceedings by the Consolidated Traction Company against John A. Jordan to appropriate land for a right of way. From the judgment for damages, the company appeals. Affirmed.

James L. Clark, for appellant. Brill & Harvey and T. S. Adams, for appellee.

WILEY, C. J.

Appellant filed its instrument of appropriation in the office of the clerk of the Hendricks circuit court, by which it sought to appropriate for its right of way certain lands belonging to appellee. Such proceedings were had that appraisers were appointed and filed their report of damages assessed in favor of appellee. Within the time fixed by statute appellee filed his exceptions to the report on account of the inadequacy of the damages assessed. Upon the issues joined by the instrument of appropriation and appellee's exceptions thereto, the cause was tried before a jury, resulting in a general verdict assessing his damages at $550. Appellant's motion for a new trial was overruled, and the only error assigned is the ruling on such motion. A reversal is asked upon three grounds: (1) Because the court erred in giving instruction No. 3; (2) because of the admission of certain evidence on behalf of appellee; (3) because the court refused to admit certain evidence on behalf of appellant.

The instruction complained of is as follows: “The question which you are called upon to try is to ascertain how much damage the plaintiff, Jordan, will sustain by reason of the appropriation of his real estate and the construction of their road thereon. This question you will determine by finding the value of the land that remains after the company has appropriated its right of way and built its road, add by determining the value of the entire lot as it now is and deducting one from the other, and the difference will be the measure of plaintiff's damage.” The measure of damages to a landowner for land appropriated for a railroad right of way is the difference in the value of the real estate at the time of the appropriation and the value of the residue after the strip is taken under the appropriation proceedings. Chicago, etc., Ry. Co. v. Mason, 26 Ind. App. 395, 59 N. E. 185;Evansville, etc., Ry. Co. v. Swift, 128 Ind. 34, 27 N. E. 420;Indianapolis, etc., Ry. Co. v. Pugh, 85 Ind. 279;Indiana, etc., Ry. Co. v. Allen, 100 Ind. 409. While the instruction complained of does not announce this rule in as clear and explicit language as it might, we do not think that it materially departs from the rule which is so well established in this state. We do not think there was any error in giving this instruction.

Complaint is made because the trial court, over the objection of appellee, refused to allow the witness Logan S. Halfacre to answer a question as to the value of appellee's real estate just as it was at the date of the trial without any railroad on it. It is contended by counsel for appellee that the court correctly sustained the objection, on the ground that the witness had not shown himself competent to answer it. Appellee's land was in the town or village of Pittsboro. The witness lived about two miles north of Pittsboro, where he owned real estate and had lived for about 18 years. The witness disclosed by his answers to preceding...