Illinois Cent. R. Co. v. Howard

• Citation: 196 Ind. 323,147 N.E. 142
• Decision Date: 01 April 1925
• Docket Number: No. 24243.,24243.
• Parties: ILLINOIS CENT. R. CO. v. HOWARD.
• Court: Indiana Supreme Court

196 Ind. 323

147 N.E. 142

ILLINOIS CENT. R. CO.

v.HOWARD.^*

No. 24243.

Supreme Court of Indiana.

April 1, 1925.

Appeal from Circuit Court, Shelby County; Alonzo Blair, Judge.

Action to condemn real estate by the Illinois Central Railroad Company against Michael E. Howard. Judgment assessing damages was rendered for defendant, and plaintiff appeals. Reversed, with directions.Ed. K. Adams, of Shelbyville, Hays & Hays, of Sullivan, and J. Olias Vanier, of Indianapolis, for appellant.

Thos. D. McGee and Bachelder & Bachelder, all of Indianapolis, Wray & Sullivan, of Shelbyville, and Eph Inman, of Indianapolis, for appellee.

EWBANK, J.

Appellee owned a lot in the city of Indianapolis, adjoining the present location of the elevated railroad tracks on the south, two squares west of the Union Station, the northwest corner of his lot extending almost to the structure on which appellant's tracks have been elevated. This lot was 38 feet 6 inches wide along the west side of Senate avenue, running back the same width 110 feet to a 10-foot alley in the rear, which was open up to appellee's property from the south, but was closed from thence northward. A one-story frame building 80 feet 9 inches long, and 36 feet 6 inches wide, covered the east end of the lot, except a narrow strip along the north side. There was a vacant space in the rear, 29 feet 3 inches long, across the entire width of the lot. The building had been used as a machine shop by appellee for more than 30 years, and in it he had the necessary machinery suitable for that purpose. The vacant space behind the building was sometimes used as a place to drive in with a dray and turn around when delivering heavy machinery at the shop for the purpose of having it repaired. Appellant had located its elevated tracks on some adjoining property in a curved line past and near the northwest corner of appellee's lot, and had appropriated as part of its right of way on which to build an embankment, if that should become resirable, a triangular piece off the northwest corner of the vacant space behind appellee's building, 20 feet wide along the alley at the west end and running 29 feet east along the north boundary of the lot, tapering to a point near the northwest corner of appellee's building. The tract appropriated contained 290 square feet, which was a little more than one-fourth of the vacant space, or “yard,” behind the building, and a little more than one-fourteenth of the entire lot.

The only pleading shown by the transcript consisted of a complaint describing appellee's lot and specifying the part of it sought to be appropriated, which it alleged was needed by appellant as part of the right of way on which to construct elevated tracks, and exceptions by each of the parties denying that the award of damages by the appraisers had been for the correct amount. (a) Upon the trial of the case appellant offered to introduce evidence that only seven months before the appropriation of appellee's land a witness had purchased for $3,750.00 a lot shown to be 31 feet wide, extending through from the street to the alley, that was in the same block, only 38 1/2 feet south of appellee's property. But an objection by appellee that “you have no right to go into what has been paid for other property” was sustained, and the evidence was excluded. (b) When testifying as a witness, appellee was asked by his counsel what were the profits from his business in 1916, the year the tract in question was appropriated, and over an objection and exception by appellant he testified that they were $6,000; and being asked what the net profits averaged prior to 1916, he was permitted, over a like objection and exception, to answer that his net profits had averaged $6,000 a year for the past eleven years. The jury returned a verdict in favor of appellee for $9,000 damages, and judgment was rendered in his favor against appellant for that amount. Each of the rulings admitting and excluding evidence, as above set out, was specified as a reason for asking a new trial, and overruling the motion for a new trial is assigned as error.

[1] The great weight of authority holds that evidence of the price paid, by way of a voluntary sale and purchase near the time the lands were appropriated, for other lands similarly situated in the immediate neighborhood, is competent on the question on the value of the lands taken. Pierce v. Boston, 164 Mass. 92, 41 N. E. 229;Loloff v. Sterling, 31 Colo. 102, 106, 71 P. 1113;Smith v. Sanitary Dist., 260 Ill. 453, 103 N. E. 254;Music v. Big Sandy, etc., R....