Elson v. City of Indianapolis, by and on Behalf of Dept. of Redevelopment, 30376

• Citation: 204 N.E.2d 857,246 Ind. 337
• Decision Date: 09 March 1965
• Docket Number: No. 30376,30376
• Parties: Robert B. ELSON, Marvel L. Elson, and Anchor Federal Savings and Loan Association, Appellants, v. CITY OF INDIANAPOLIS, by and on Behalf of the DEPARTMENT OF REDEVELOPMENT, Appellee.
• Court: Supreme Court of Indiana

Page 857

204 N.E.2d 857

246 Ind. 337

Robert B. ELSON, Marvel L. Elson, and Anchor Federal Savings and Loan Association, Appellants, v. CITY OF INDIANAPOLIS, by and on Behalf of the DEPARTMENT OF REDEVELOPMENT, Appellee.

No. 30376.

Supreme Court of Indiana.

March 9, 1965.

Rehearing Denied April 13, 1965.

Carl E. Stilwell, Stilwell, Hackemeyer & Life, Indianapolis, for appellant.

John C. O'Connor, Indianapolis, for pellee.

JACKSON, Judge.

Appellee instituted this action against the appellants for the condemnation of appellants' real estate, for a determination of the fair market value of said real estate and the damages resulting from said condemnation. Anchor Federal Savings and Loan Association was made a party defendant below by reason of its mortgage lien on appellants' real estate.

The action was commenced with the filing of appellee's complaint on March 7, 1962, for the condemnation of appellants' real estate. Subsequently, on March 20, 1962, the court executed its entry on appellee's complaint condemning appellants' real estate, appointing appraisers, and ordering said appraisers to assess the damages sustained by appellants by reason of the condemnation and appropriation.

The report of the appraisers was filed with the court on April 16, 1962, fixing the total amount of appellants' damages in the sum of $43,000.00.

April 19, 1962, appellants filed exception to the appraisers award on the theory that the damages assessed were too low. Appellee filed exceptions to the award on April 23, 1962, on the theory that the damages assessed were excessive and that the amount of the appraisement was in excess of the true cash value of the property.

Appellants filed their request for trial by jury on April 19, 1962, and the cause was submitted to the jury on the issues formed on October 15, 1962. At the conclusion of all the evidence the jury returned its verdict awarding the appellants the sum of Forty Thousand Seven Hundred Forty-two Dollars and Fifty-eight cents ($40,742.58). The court entered judgment on said verdict, finding that the allegations of the appellee's complaint for condemnation were true; that the appellee was entitled to condemn and appropriate the real estate described in the complaint for redevelopment purposes; that of the amount of the award the defendant, Anchor Federal Savings and Loan Association was entitled to be paid the full amount of its valid mortgage on the premises in the sum of $5,046.47 as of October 31, 1962, with interest thereon from said date in the amount of $0.924 per day until paid; that the balance of the award after the payment of said mortgage lien was to be paid to appellants.

Thereafter, on November 16, 1962, appellants filed their motion for a new trial. Such motion for new trial encompasses sixteen pages of the record and is directed to alleged error of law in the rulings of the court on proffered testimony as to values and to certain instructions given and refused. Brevity does not permit setting out in full all the grounds urged. We have considered the questions raised on the admission and exclusion of evidence in such motion and conclude that the rulings of the court thereon were proper. Appellants also raise questions in the motion for new trial on the giving and refusing to give certain instructions therein set forth. Appellant alleges error in the giving of certain instructions wherein the time for the determination of value was fixed as of March 7, 1962. Appellant contends the date on which determination of value should have been made as of June 3, 1959.

It therefore appears that there are involved in the case at bar two questions that require a determination in this action, viz.:

1. Should the date on which the value of the property here condemned have been fixed as of June 3, 1959, as contended by appellants or as of March 7, 1962, as directed by the instructions to appraisers by the order of the trial court made on March 23, 1962?

2. Are appellants entitled to recover damages for the loss of their business?

Determination of these questions will, we think, eliminate the necessity of considering other questions inherent herein.

In arriving at a determination of the question posed at one above we need refer to the statute. Acts 1945, ch. 276, Sec. 17, p. 1219, being Sec. 48-8517, Burns' 1963 Replacement reads as follows:

'Whenever the commissioners shall deem it necessary to acquire real estate in any blighted area by the exercise of the power of eminent domain, they shall adopt a resolution setting out their determination to so proceed and directing their attorney to file a petition in the name of the city on behalf of the department of redevelopment, in the circuit or superior court of the county in which such real estate is situated, praying that appraisers be appointed to appraise the value of such real estate deemed necessary to be acquired to carry out the redevelopment plan. Upon the filing of said petition the owner or owners of such real estate shall have the notice provided by law in the case of the commencement of a civil action. It shall be sufficient to make parties defendant to such petition all persons who are in possession of said real estate and those who appear to be the owners, or have any interest therein, as shown by the tax duplicates and records in the offices of the auditor and recorder of such county.

'After such notice shall have been given the court shall appoint three resident freeholders of the county in which the real estate is situated to appraise the value of the same. Before entering upon their duties said appraisers shall take and subscribe an oath that they will honestly appraise said real estate at its fair cash value, and shall make a report of their appraisement within a time fixed by the court. If said appraisers fail for any cause to make such report within the time so fixed, the court may extend the time or may appoint other appraisers.

'When such report shall have been filed, any of the parties defendant to said petition may, within ten days after the filing of such report, file exceptions to the same, alleging that the appraisement of said real estate as made by said appraisers is not the true cash value of the same, and the cause shall proceed to issue, trial and judgment as in civil actions. Upon the trial of such exceptions, the court shall have the power to revise, correct, amend or confirm such appraisement in accordance with the finding of the court, or verdict of the jury, and may make such further orders and render such finding and judgment as may seem just. Such judgment shall be appealable by either party to the Appellate or Supreme Court as in civil cases.

'If the commissioners shall pay to the clerk of the court the amount fixed by the judgment, then the commissioners may take possession of and hold the interest in the real estate so appropriated for the use of the department of redevelopment, subject to a review of the amount so paid in any appeal taken as herein provided.

'When the value of said real estate shall have been finally determined by the court, the commissioners may cause the amount so determined to be paid to the clerk of the court who shall receive the money and hold it in court for the use of the owner or owners, or other person or persons adjudged to be entitled thereto. Upon such payment to the clerk of the court and the filing of the receipt therefor in open court as a part of the proceedings in said cause, the court shall direct the clerk of the court to execute a deed conveying the title of such real estate to the city 'for the use and benefit of its department of redevelopment.' The costs of the proceeding shall be paid by the commissioners, except in case of contest the additional costs thereby caused shall be apportioned as the court shall adjudge.'

It is thus apparent that a certain area may be declared a 'blighted area' and yet the property therein need not be taken at the time of the declaration or at any other time. In the event that it is determined to take such property, then we are governed by the statute fixing the time when evaluation of the property shall be made. Acts 1935, ch. 76, Sec. 3, p. 228, being Sec. 3-1706, Burns' 1946 Replacement reads as follows:

'Such appraisers shall take an oath that they have no interest in the matter and that they will honestly and impartially make such assessment. After being so sworn, the judge shall instruct said appraisers as to their duties as such and the measure of the damages and benefits if any they allow.

'They shall determine and report:

'First. The fair market value of each parcel of property sought to be appropriated, and the value of each separate estate or interest therein;

'Second. The fair market value of all improvements pertaining to the realty, if any, on the portion of the real estate to be condemned;

'Third. The damages, if any, to the residue of the land of such owner or owners to be caused by taking out the part sought to be appropriated;

'Fourth. Such other damages, if any, as will result to any persons or corporation from the construction of the improvements in the manner proposed by the plaintiff.

'Fifth. In case the land is sought to be taken by the state or by a county, for a public highway or by a municipal corporation for a public use that confers benefits on any lands of the owner, the report shall also state the benefits which will accrue to each parcel of property, set opposite each description of the same, whether described in the complaint or not. In estimating the damages specified in the foregoing first, second, third and fourth clauses, no deduction shall be made for any benefits that may result from such improvement, excepting in case of a condemnation by the state or by a county, for a public highway or by a municipal corporation for public use, the benefits, if any assessed, shall be deducted from the amount of damage allowed, if any, under the foregoing third and fourth...