Hire v. Kniseley
| Decision Date | 04 February 1892 |
| Docket Number | 15,531 |
| Citation | 29 N.E. 1132,130 Ind. 295 |
| Parties | Hire v. Kniseley et al |
| Court | Indiana Supreme Court |
From the Marshall Circuit Court.
Judgment affirmed.
O. M Packard and C. P. Drummond, for appellant.
S Parker, J. D. Chaplin and A. C. Capron, for appellees.
The appellees filed a petition before the board of commissioners of Marshall county to lay out and establish a public highway. The appellant filed a remonstrance, in which he claimed damages on the ground that such proposed highway would run through his farm, and, if established, would greatly damage him. His claim for damages being denied before the board of commissioners, he appealed to the circuit court, where the cause was tried by a jury, resulting in a verdict and judgment in favor of the appellant for one dollar.
He appeals to this court, and assigns, as error, the ruling of the circuit court in denying him a new trial.
It is first insisted that the jury erred in its assessment of the appellant's damages, the amount assessed being too small.
It is insisted by the appellant that, under the evidence introduced by the appellees, he was entitled to recover at least ninety-two dollars and fifty cents damages, the same consisting of the value of the land taken for the highway, fencing the highway through his farm when opened, and removing existing fences; from which should be deducted the cost of constructing ditches on either side of the highway, which would drain the land.
If there was no other element to be considered in ascertaining the appellant's damages than those mentioned above, there would be much plausibility in this contention; but it is too firmly settled now to admit of dispute, that, in estimating the damages which one may sustain by reason of establishing a highway over his land, the benefit he will receive is also to be considered. Yost v. Conroy, 92 Ind. 464; Watson v. Crowsore, 93 Ind. 220; Hagaman v. Moore, 84 Ind. 496.
The appellant is in error in his claim that there is no evidence in the record to be considered in connection with the estimate above mentioned, for there is evidence from which the jury could have inferred, legitimately, that the benefits equaled the damages. From the evidence in the record, as it comes to us, we can not say that the jury erred in the assessment of the damages.
It is next contended that the court erred in giving to the jury the following instruction:
If we understand the position of counsel, as it is expressed in the brief, it is, that the appellant was entitled to the cost of a fence regardless of the fact that the fence was, by accident, near the line of the road, and that for this reason this instruction was erroneous, as was also the admission of evidence tending to prove the cost of removing the same.
The evidence shows that the proposed highway cuts through the appellant's farm from east to west, so as to leave a sixty-acre tract one hundred and twenty rods east and west by eighty rods north and south, to the north of the proposed highway. There is a fence, composed partly of rails and partly of wire, running the entire one hundred and twenty rods directly on the line of the proposed road. It will be necessary, when the road is opened, to maintain a fence on each side of it in order to utilize the farm. This instruction was given with reference to these facts, and we think announces the correct rule by which the appellant's damages, with reference to this fence,...
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