Evansville Terminal Railway v. Heerdink
| Decision Date | 05 October 1910 |
| Docket Number | 21,567 |
| Citation | 92 N.E. 548,174 Ind. 537 |
| Parties | Evansville Terminal Railway v. Heerdink et al |
| Court | Indiana Supreme Court |
From Superior Court of Vanderburgh County; Alexander Gilchrist Judge.
Condemnation proceeding by the Evansville Terminal Railway against Anton Heerdink and others. From a judgment for defendants plaintiff appeals.
Affirmed.
Albert W. Funkhouser and Arthur F. Funkhouser, for appellant.
John E Iglehart, Edwin Taylor and E. H. Iglehart, for appellees.
This was a proceeding by appellant to appropriate, for electric railway purposes, a strip of ground across the farm of appellee Anton Heerdink. Upon exceptions to the award of the appraisers filed by appellees Heerdink, there was a trial by jury, the damages were fixed, and, over a motion for a new trial, judgment was rendered for said appellees. Pending the proceedings, after exceptions were filed by said appellees to the award of the appraisers, appellant was permitted to amend the complaint by striking out parts thereof, so as to limit the taking to that of a right of way. Said appellees then, by leave of court, withdrew that part of their exceptions relating to the use of steam as a motive power. Appellant filed an answer in two paragraphs, in one of which it alleged that until entering upon the trial it had no notice that the proposed improvement intersected a line of tile, which furnished the drainage for forty acres of appellee Anton Heerdink's land, and tendered and filed a deed, granting to said appellee an easement for the tile drainage, and covenanting to keep it forever in good, effective condition.
The second paragraph, after denying knowledge of the existence of the tile drain until the trial was entered upon, offered to let the judgment show a perpetual easement for drainage across the right of way, with a covenant to keep and maintain it forever in repair. Upon said appellee's motion, these answers and the deed were stricken out.
The only error presented here is in striking out these answers and the deed.
After the appointment of appraisers, and in connection with the exceptions to the award of damages, said appellees filed, as a part of their exceptions, objection to the right of appellant to exercise the right of eminent domain, and this objection was stricken out on motion of appellant, and cross-errors are assigned by said appellees as to that ruling. Contention is here made by said appellees that the answers of appellant and the deed were stricken out because they were filed with the clerk without leave of court. This is denied in appellant's brief. The record does not disclose leave to file, or when or under what circumstances the answers were filed, or the deed tendered and filed for the use of said appellees. The record shows that they were filed, and the deed filed with the answers bears a certificate of acknowledgment dated May 22, 1909, and on the same day an oral motion was made to strike out the answers and deed. The grounds of the motion are not shown by the record, and whether this motion was sustained because no grounds were stated, or because the answers were filed without leave, or because the court regarded the answers as improper or immaterial, we cannot determine. The answers aver that appellant, until the trial had been entered upon, had no notice or knowledge that the work involved interference with appellee Anton Heerdink's tile drain, yet objections to the award of damages, specifically showing that fact, had been on file six weeks before the trial began. The court probably struck out the answers under the provisions of section five of the Act of 1905 (Acts 1905 p. 59, § 933 Burns 1908), which reads as follows: "And no pleadings other than the complaint and such statement of objections [to the right to exercise the power, etc.], shall be allowed in such cause, except the answer provided for in section eight of this act." The statute is specific as to the questions which may be presented, and the time and manner of their presentation and hearing which may properly be done in such a statute. Vandalia Coal Co. v. Indianapolis, etc., R. Co. (1907), 168 Ind. 144, 79 N.E. 1082; Morrison v. Indianapolis, etc., R. Co. (1906), 166 Ind. 511.
Upon exceptions to the award, there is but one question presented and that is the amount of damages, and it has been held that the objection that the damages were too low was sufficiently explicit to allow presentation of all questions of damages. Toledo, etc., R. Co. v. Wilson (1909), 44...
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