Evansville Terminal Ry. v. Herdink

• Decision Date: 05 October 1910
• Docket Number: No. 21,567.,21,567.
• Citation: 92 N.E. 548,174 Ind. 537
• Parties: EVANSVILLE TERMINAL RY. v. HERDINK et al.
• Court: Indiana Supreme Court

174 Ind. 537

92 N.E. 548

EVANSVILLE TERMINAL RY.

v.HERDINK et al.

No. 21,567.

Supreme Court of Indiana.

Oct. 5, 1910.

Appeal from Superior Court, Vanderburg County; A. Gilchrist, Judge.

Proceedings by the Evansville Terminal Railway against Anton Herdink and others. From a judgment awarding damages and striking out answers, and a deed tendered, petitioner appeals. Affirmed.

Albert W. Funkhouser and Arthur F. Funkhouser, for appellant. John E. Iglehart, Edwin Taylor, and E. H. Iglehart, for appellees.

MYERS, J.

This was a proceeding by appellant to appropriate a strip of ground across the farm of appellee Anton Herdink for electric railway purposes. Upon exceptions to the award of the appraisers filed by Herdink, there was a trial by jury, and the damages fixed, and, over motion for a new trial, judgment was rendered for appellees. Pending the proceedings, after exceptions were filed by 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. Appellee then by leave of court withdrew that part of his 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's land, and tendered and filed a deed, granting appellees 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 drainage 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 appellees' motion these answers and the deed were stricken out.

The only error presented here is in strikingout these answers and the deed. After the appointment of appraisers, and in connection with the exceptions to the award of damages, appellees filed as a part of their exceptions objections 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 appellees as to that ruling. Contention is here made by 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, and deed tendered, and filed for the use of appellees. The record shows that they had been 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 of no ground being stated or of the answers being 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 appellees' tile drainage; 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 5 of the Acts of 1905, p. 61 (section 933, Burns' Ann. St. 1908), which reads: “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, and that may properly be done in such a statute. Vandalia Coal Co. v. Indianapolis Co. (1907) 168 Ind. 144, 79 N. E. 1082;Morrison v. Indianapolis Co. (1906) 166 Ind. 511, 76 N. E. 961, 77 N. E. 744. Upon exceptions to the award, there is but one...