Ferdinand Ry. Co. v. Bretz
| Decision Date | 18 May 1911 |
| Docket Number | No. 7,249.,7,249. |
| Citation | 47 Ind.App. 642,94 N.E. 1046 |
| Parties | FERDINAND RY. CO. v. BRETZ. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Dubois County; Thomas Duncan, Judge.
Proceedings by the Ferdinand Railway Company against William H. Bretz, to condemn land for a right of way for railroad purposes. From a judgment fixing compensation, the company appeals. Affirmed.C. M. C. Shanks, and R. W. Armstrong, for appellant. Bromar Traylor and John C. McFail, for appellee.
The appellant filed an instrument of appropriation with the clerk of the Dubois circuit court, to condemn a right of way for a railroad across the land of appellee. The court appointed appraisers, who filed an award, assessing damages to appellee in the sum of $185. The appellee filed exceptions to the award of the appraisers, and the case was tried by the court without the intervention of a jury, and a finding made and judgment rendered in favor of appellee in the sum of $667.
[1] The only error relied on for reversal, and presented by appellant in its brief, is the error of the trial court in overruling the motion of appellant for a new trial. The assignment of errors contains other specifications, but as the brief does not state that any other error is relied on, except that presented by the ruling on the motion for a new trial, and as that is the only alleged error set out in the brief under the heading “Errors relied on for reversal,” that error will be considered, and all others will be treated as waived.
Appellant presents three questions arising under the motion for a new trial, first, that the finding of the court is not sustained by the evidence; second, that the finding of the court is contrary to law; and, third, that the damages awarded are excessive.
The evidence is clearly sufficient to sustain the finding. It was undisputed at the trial that appellant had appropriated a right of way across the lands of appellee, and had taken possession thereof, and had built an embankment for its roadbed about two feet in height. The evidence was conflicting as to the value of the land appropriated, but there was evidence that it was worth from $60 to $75 an acre. The appellee was therefore, beyond all question, entitled to a finding in his favor for some amount. The question as to whether or not the damages awarded are excessive depends upon the injury resulting to the remainder of appellee's land, not appropriated. The evidence shows that the remainder of the tract, not appropriated, consisted of about 100 acres of bottom land lying immediately south...
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