Ft. Wayne & Southwestern Traction Company v. Ft. Wayne & Wabash Railway Company

• Decision Date: 31 January 1908
• Docket Number: 20,860
• Citation: Ft. Wayne & Southwestern Traction Company v. Ft. Wayne & Wabash Railway Company, 83 N.E. 665, 170 Ind. 49 (Ind. 1908)
• Court: Indiana Supreme Court
• Parties: Ft. Wayne & Southwestern Traction Company v. Ft. Wayne & Wabash Railway Company et al

83 N.E. 665

170 Ind. 49

Ft. Wayne & Southwestern Traction Company v. Ft. Wayne & Wabash Railway Company et al

No. 20,860

Supreme Court of Indiana

January 31, 1908

From Kosciusko Circuit Court; Lemuel W. Royse, Judge.

Condemnation proceedings by the Ft. Wayne & Southwestern Traction Company, against the Ft. Wayne & Wabash Railway Company and others. From a judgment for defendant company, plaintiff appeals.

Reversed.

Olds & Doughman and Charles M. Niezer, for appellant.

Stuart Hammond & Simms, J. Fred. France, Robert J. Loveland and John D. Widaman, for appellees.

Hadley J. Gillett, J. Monks, C.J., concurs in the result.

OPINION

Hadley, J.--

Appellant, a corporation organized under the street railways act, on March 29, 1901, filed its instrument of appropriation with the clerk of the Huntington Circuit Court for the appropriation of certain real estate belonging to Aaron Dukes, the same being that part of the towpath of the Wabash & Erie Canal lying between the town of Roanoke and the city of Huntington, in Huntington county. Dukes, at the time resided in the city of Peru, and, not being a resident of Huntington county, notice of the filing of said instrument of appropriation was given by publication, the first of which appeared April 2, 1901. On April 1, 1901, Dukes and wife conveyed to appellee Ft. Wayne & Wabash Railway Company, by quitclaim deed, for the expressed consideration of $ 1, the canal property, embracing the portion described in appellant's appropriation proceeding. The deed contains this provision: "This deed is made for the express provision of aiding said grantee in constructing, maintaining and operating a railroad over, upon and along the line of said canal, and for no other purpose whatever." Upon the maturity of the publication appellant presented to the judge of the Huntington Circuit Court its petition for the appointment of appraisers to assess the damage. Dukes appeared and filed his statement and objections to the appointment of appraisers, reciting therein that prior to April 1, 1901, he was the owner in fee of the lands described in appellant's instrument of appropriation, but on that day he and his wife conveyed the same to the Ft. Wayne & Wabash Railway Company, since which time they had had no personal interest in the controversy, that said company is the owner of said real estate, and is a necessary party to this proceeding, and praying that it may be made such party. The objections were overruled, and, it appearing that the petitioner was unable to agree with the owner, appraisers were appointed to assess the damage, who returned and filed their assessment in the sum of $ 6,500, which sum was paid into the clerk's office for the use of the party authorized to receive it. Within ten days of the filing of the appraisers' report, upon its publication appellee railway company was made a party to the proceeding and filed exceptions to the report, challenging the regularity of the proceedings, and the adequacy of the damages awarded. Dukes filed no exceptions to the report of the appraisers, and so far as appears made no assignment of his claim for damages, by deed or otherwise.

Subsequent to the admission of appellee railway company as a party there was a change of venue to the Kosciusko Circuit Court, wherein appellee filed exceptions to the appraisers' report, and, after numerous counter pleadings and rulings, the case went to the jury on the single question of damages, with an instruction given at the request of appellee railway company, to the effect that: It appears from the deed offered in evidence that soon after the plaintiff filed the instrument of appropriation, and before the appointment of appraisers, Aaron Dukes and wife conveyed to the defendant the Ft. Wayne & Wabash Railway Company the lands described in the plaintiff's instrument of appropriation. "The jury will, therefore, take it as a fact in the case that said defendant is the owner of the real estate proposed to be appropriated, and is entitled to all the damages pertaining to the appropriation." A verdict was returned assessing the damages at $ 13,791, upon which judgment was rendered in favor of appellee.

The important and real questions in the case arise from the following controversy: Appellant contends that in the condemnation proceedings by an authorized corporation the right of appropriation becomes fixed in the corporation, eo instanti, on the filing of the instrument of appropriation, and that all damage resulting to the owner from the taking must have reference to the act of the filing as the appropriating act, and to the time of filing as the time to which all assessable damages must relate; while, on the other hand, the appellee maintains that while damages are assessable with reference to the time the appraisal is made, title does not pass to the corporation until the damages have been assessed, and paid or tendered.

If appellant's contention is right, then Dukes, being the owner in fee when the instrument of appropriation was filed, was the only sufferer from the taking, and because thereof became simultaneously vested with a claim against the corporation for full compensation for all damages that should result to his land by reason of the taking and the construction of the railroad; and such claim, being for a money demand for a taking and injury to the property, was not an incident of the remaining estate, and being purely personal and unassigned, by deed or otherwise, did not pass with the land to appellee railway company by the conveyance of April 1, and the railroad company had, therefore, no interest in the claim for damages, and its exceptions to the report of the appraisers should have been stricken out and the appeal dismissed.

If appellee's contention can be sustained, then the filing of the instrument of appropriation by appellant on March 29 did not amount to a taking of the property, and the appropriation did not become effective until after the conveyance of April 1, which would make all assessable damages for the seizure the property of the grantee.

We proceed to consider the merits of the controversy. The State reserves dominion over all the lands within its borders and the right to seize any part of it at any time it becomes necessary to the public welfare. This reserved power has been defined as the "right of the state to resume possession of private property for public use." Beekman v. Saratoga, etc., R. Co. (1831), 3 Paige 45. It would subvert a salutary principle of government if it were made possible for an individual landowner to defeat a great public good for his own selfish or perverse ends. Eminent domain is a power that necessarily resides in sovereignty to be ever present and available in controlling and regulating those rights that pertain to the general public, as against the individual citizen. Being a power or right that belongs exclusively to the State, it follows that it can be exercised only by those agencies that have been duly empowered by the State through legislative enactment. Therefore, when lodged in a railroad or other corporation, it is in every proper sense a grant from the State that may be employed against private property irrespective of the owner. 2 Lewis, Eminent Domain (2d ed.), § 306, p. 755; Sioux City, etc., R. Co. v. Chicago, etc., R. Co. (1886), 27 F. 770. There is nothing in the spirit or letter of the statute conferring eminent domain upon railroad corporations that imposes any restriction or condition upon its exercise, beyond regularity of proceeding and the rendering of compensation to the owner, as required by the Constitution.

The act of 1903 (Acts 1903, p. 92, § 3, § 5679 Burns 1908), which confers upon street railway companies the right of eminent domain, provides: "Such company is hereby authorized to enter upon any land for the purpose of examining and surveying a railroad line, and may appropriate so much thereof as may be deemed necessary for its railroad. * * * The corporation shall forthwith deposit with the clerk of the circuit court, or other court of record of the county where the land lies, a description of the rights and interests intended to be appropriated; and such lands, rights and interests shall belong to such company, to use for the purpose specified by making or tendering payment as hereinafter provided." The statute further provides that if the corporation shall not agree with the owner of the land touching the damages sustained by such appropriation, if such owner is a nonresident of the county, the corporation shall give notice thereof, and, "on the application of either party," the court shall appoint three appraisers to fix the damages. The section further provides for the assessment of damages, requiring the appraisers to set forth in their report the "value of the property taken or injury done to the property, which they assess to the owner."

It will be noted that by this statute, which provides the formal procedure required of a railroad company in a condemnation proceeding, the corporation may enter upon the land and make surveys and satisfy itself as to the most available line for its railroad, without the consent of, or even notice to, the owner; and may appropriate so much thereof as it deems necessary for the construction and repair of the railroad. The owner's consent to the appropriation is wholly unimportant, and his right to direct, or in any way control the particular location, is no greater than that of a stranger. No one can question the right of a qualified corporation to take the property; and, if the proceedings are orderly, no defense to the taking can be interposed.

So the statute very appropriately directs that as soon as the company has reached a decision, as to the line it...