Eckart v. Ft. Wayne & N.I. Traction Co.

• Decision Date: 31 March 1914
• Docket Number: No. 22,227.,22,227.
• Parties: ECKART et al. v. FT. WAYNE & N. I. TRACTION CO.
• Court: Indiana Supreme Court

181 Ind. 352

104 N.E. 762

ECKART et al.

v.FT. WAYNE & N. I. TRACTION CO.

No. 22,227.

Supreme Court of Indiana.

March 31, 1914.

Appeal from Circuit Court, Allen County; Edward O'Rourke, Judge.

Condemnation proceedings by the Ft. Wayne & Northern Indiana Traction Company against Anna Eckart and another. From an interlocutory judgment overruling objections to the complaint, adjudging that the plaintiff was entitled to appropriate the land, and appointing appraisers to assess the damages, defendant Anna Eckart appeals. Affirmed.Leonard, Rose & Zollars, of Ft. Wayne, for appellant. Walter Olds, of Ft. Wayne, for appellee.

MORRIS, C. J.

This was an action by appellee, a street railway company, engaged in operating a system of street and interurban railroads, against appellants, to appropriate, for terminal purposes, etc., a tract of appellant Anna Eckart's land in the city of Ft. Wayne. Errors are here assigned by appellant Anna Eckart only, and, for convenience, she will be designated as “appellant” in this opinion. To appellee's complaint filed under the provisions of the eminent domain act of 1905 (Acts 1905, p. 59, section 929 et seq., Burns 1908), appellant filed 17 written objections. The trial court sustained a demurrer to the objections numbered 14 and 15. Prior to the trial, the court, deeming objections numbered 1, 2, 4, 5, 6, 7, 8, 16, and 17 as intending to present only issues of law, and to be insufficient for such purposes, overruled each of them. There was a trial on objections numbered 3, 9, 10, 11, 12, and 13, with special findings of fact and conclusions of law. The court overruled said objections, and adjudged that appellee was entitled to appropriate the land, and appointed appraisers to assess appellant's damages. From such interlocutory judgment this appeal is prosecuted. Section 933, Burns 1908.

[1] Appellant claims the complaint does not sufficiently aver a necessity for the taking. Its only averment in this respect is as follows: “Which land plaintiff deems to be and are necessary for its use and purposes aforesaid.” It is contended by appellant that such averment is a mere conclusion of the pleader. If it be conceded that the complaint should aver a necessity for the taking, the averment here must be held sufficient. Domestic Block Coal Co. v. De Armey, 100 N. E. 675.

[2][3] By objections 11 and 12, appellant denied each averment of the complaint, except that she is the owner of the real estate in controversy. Much evidence was given by appellee to prove the necessity of the appropriation of appellant's land, to wit, lot No. 6, in block 12, of Ewing's addition to Ft. Wayne. The court, in finding No. 3, found “that said lot is necessary for the plaintiff's use for stations, depots, and offices in the maintenance and operation of its lines and system of street and interurban railroads.” Appellant excepted to each conclusion of law, and contends that finding No. 3 must be disregarded because it finds no fact, but states a mere conclusion; that with such finding eliminated the court's conclusions of law are unsupported. The case was tried on the theory that the necessity of the taking of the lot was one of the ultimate facts in issue. We are of the opinion that appellant's criticism of the finding is unwarranted. Under our statute (section 577, Burns 1908) the office of a special finding is the statement of the ultimate facts in issue. Perkins v. Hayward, 124 Ind. 445, 24 N. E. 1033;Taylor v. Canaday, 155 Ind. 671, 675, 57 N. E. 524, 59 N. E. 20. Evidentiary facts in such findings must be disregarded. Bartholomew v. Pierson, 112 Ind. 430, 14 N. E. 249.

[4] Appellant contends that, as the evidence shows that three other interurban railway companies and an express company have been using the old terminal facilities of appellee, and will continue to do so when the new terminal shall be located on the ground of which appellant's land forms a part, the decision is contrary to the evidence; that appellee has no power to condemn land for another's use, or for the purpose of enlarging terminals to be in part rented to others. In 1899 the Legislature adopted an act (Acts 1899, p. 230, section 5632, Burns 1908) which required street railroad companies in cities with a population between 35,000 and 49,000, according to the preceding United States census, to permit any interurban railroad the use of its tracks in the city, when the board of public works and common council of such city shall grant certain rights of way. In 1902 the Ft. Wayne Traction Company was operating a street railway system in Ft. Wayne, then a city of 45,115, as shown by the census of 1900. Pursuant to the provisions of section 5632, Burns 1908, the common council of Ft. Wayne, in August 1902, adopted an ordinance which required the Ft. Wayne Traction Company and its successors to permit cars of any interurban company to be transported over its tracks, in the city. Appellee has acquired all the property and franchises of the Ft. Wayne Traction Company. One public service corporation may not condemn property for the use of another, in the absence of express legislative authority. Mull v. Indianapolis, etc., Trac. Co. (1907) 169 Ind. 214, 218, 81 N. E. 657, and cases cited. Here, however, whatever incidental benefits that may accrue to the other interurban railroads result from express legislative sanction, under the provisions of said act of 1899.

[5] It is lawful for an express company to carry property over an interurban railway, and it is proper for the latter to furnish terminal facilities for the convenient handling of the goods carried by the express company. We hold that said uses by the express company and the interurban companies do not affect appellee's right to appropriate the real estate in controversy.

[6] The court admitted in evidence, over appellant's objection for insufficient authentication, what purported to be a copy of the minutes of a meeting of appellee's board of directors, held in New York City, declaring a necessity to exist for the taking of appellant's land, and authorizing its condemnation. To this copy was attached the affidavit of appellee's secretary, sworn to before a notary public of Philadelphia, Pa., certifying to the correctness of the minutes. There was no certificate by any clerk that the notary was authorized by the laws of his state to administer oaths. See sections 498, 499 Burns 1908. Appellant cites Jackson v. State (1903) 161 Ind. 36, 67 N. E. 690, and other cases, in support of her contention. Conceding that the admission of the document in evidence was erroneous, we fully concur in the view of appellee's counsel that the error was a harmless one. What, if any, resolution was adopted by appellee's board of directors was not material. The filing of the complaint itself implied that appellee deemed the appropriation necessary. Pittsburgh, etc., R. Co. v. Wolcott (1904) 162 Ind. 399, 402, 69 N. E. 451; Dillon on Municipal Corporations (4th Ed.) § 601.

[7] Appellee, in its examination of S. W. Greenland, asked the following question: “Your connection with the business is one of the officers and directors of that company. I will ask you whether or not in your judgment it was necessary for the acquirement of this territory and lot up...