Halstead v. Vandalia R. Co.
| Decision Date | 20 June 1911 |
| Docket Number | No. 7,235.,7,235. |
| Citation | 95 N.E. 439,48 Ind.App. 96 |
| Parties | HALSTEAD et al. v. VANDALIA R. CO. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Putnam County; Thomas T. Moore, Judge.
Condemnation proceedings by the Vandalia Railroad Company against James N. Halstead and another for the acquisition of land for a right of way. From a judgment of the circuit court awarding damages rendered on appeal from the award of appraisers, the owners appeal. Affirmed.G. S. Payne, for appellants. George A. Knight, John H. James, McNutt, McNutt & Wallace, and John G. Williams, for appellee.
This is an action and statutory proceeding by the Vandalia Railroad Company, plaintiff below, to condemn and appropriate for a right of way for steam railroad purposes a part of a tract of land owned by appellant James N. Halstead, defendant below, in the city of Brazil, Ind. The complaint asked for the appointment of appraisers to assess the damages, and, after answer was filed, a hearing was had, and appraisers were appointed who filed their report, assessing damages to appellant in the sum of $3,100. Appellee filed exceptions to the assessment on the ground of excessive damages, and prayed that the amount of damages be determined and assessed as in a civil action in the manner and form provided for by law, and upon issues thus formed the cause was submitted to the jury, who found for the appellant and -assessed his damages at $2,100.
The errors relied upon for reversal are five in number, and arise out of the overruling of the motion for new trial. They are the giving of instructions numbered 15, 7, and 12, tendered by plaintiff, and the admission in evidence of certain testimony of R. S. Hill and Conrad Dierdorf, who were among the appraisers of damages. Appellee claims that the joint assignments of error by appellants James N. and Hattie B. Halstead and the separate assignments of error by appellant Hattie B. Halstead raise no question. It is unnecessary for us to decide this, as the separate assignments by appellant James N. Halstead fully present the errors relied upon for reversal.
Instruction 15 is in the following words:
[1] Objection is made to the last clause of this instruction on the ground that it informs the jury that the only element which they are to consider in awarding damages is the value of the improvements, that in assessing the damages the jury should not allow the value of the land taken, as well as the improvements, and that it withdraws from their consideration, as an element of damage sustained, the value of the land. We do not think this objection tenable. The case was tried on the theory that appellant was entitled to recover for the value of the land and the improvements. Almost every witness in his testimony fixed a separate value on the land and the improvements and in instruction 2 given by the court on his own motion the jury was correctly informed Though instruction 15 is not very clearly expressed, it seems to us to mean, and we believe that such would be the meaning placed upon it by ordinary men of fair intelligence, that the jury was permitted to consider the value of the improvements taken separately for the purpose of enabling them to find the fair market value of the same considered as a whole, not for the purpose of determining the entire damage, but of determining one element of that damage, namely, the value of the improvements. The instruction was clearly applicable to the evidence, and, though not complete in itself, when taken in connection with the other instructions given, it cannot be held to have misled the jury and harmed appellant. Instruction 7 is: This instruction is objected to as peremptory, because by the use of the word “should” instead of “may” or “might” it orders the jury to consider certain evidence which appellant claims they were at liberty to consider, but not bound so to do; and further as singling out particular evidence for comment. Evidence was introduced of the purchase price paid by appellant for the property shortly before the condemnation.
[2] This evidence was proper, and the jury was told that they should consider such evidence in connection with all the evidence in the case.
[3] In telling them that they should consider the evidence, the court announced only to them their duty, which they were bound to perform, and, as he did not comment on the weight to be given the evidence, he committed no error in giving the instruction. It is always the duty of a jury trying a cause to take into consideration all the evidence introduced, and it is not error for the court so to instruct, but what weight is to be given any particular part is entirely for the jury. Deal v. State, 140 Ind. 354, 368, 39 N. E. 930.
[4] Instruction 12 is: “And, if the jury find from any evidence that any witness who has given his opinion as to the market value of the property taken has based such opinion in part upon the value of such property to the defendant for an intended specific future use, such opinion should be disregarded so far as it is so based upon the value for an intended specific future use.” This instruction was correct. Evidence had been given of the value of the property for an ice plant, for which purpose appellant said he intended using it. The jury were correctly advised by the court's instruction 8 that the capacity of the property for other uses than those to which the land is actually applied...
To continue reading
Request your trial