Illinois Cent. R. Co. v. Howard

• Decision Date: 01 April 1925
• Docket Number: 24,243
• Citation: 147 N.E. 142,196 Ind. 323
• Parties: Illinois Central Railroad Company v. Howard
• Court: Indiana Supreme Court

147 N.E. 142

196 Ind. 323

Illinois Central Railroad Company v. Howard

No. 24,243

Supreme Court of Indiana

April 1, 1925

Rehearing Denied June 23, 1925, Reported at: 196 Ind. 323 at 328.

1. EMINENT DOMAIN.---Price recently paid for other lands similarly situated in same neighborhood competent on question of value of land to be taken.---In eminent domain proceedings, evidence of the price paid recently for other lands similarly situated in the immediate neighborhood is competent on the question of the value of the land sought to be appropriated. p. 326.

2. EMINENT DOMAIN.---Profits from business conducted on land not competent as to value of property to be appropriated.---In eminent domain proceedings, evidence of the profits derived from a business conducted by the owner on the land sought to be appropriated is not competent and cannot be considered in ascertaining its value. p. 326.

3. EMINENT DOMAIN.---Erroneous admission of evidence as to profits from business conducted by defendant on his land not cured by instruction that it was to be considered only in determining its value.---In an eminent domain proceeding, the erroneous admission of evidence of the profits derived from a business conducted by the owner on the land sought to be appropriated was not cured by giving an instruction that such evidence was to be considered only in determining the value of defendant's property. p. 326.

4. EVIDENCE.---Testimony that a lot was purchased for a certain price implies voluntary action.---Testimony that witness purchased a lot for a certain price implies voluntary action in the absence of anything shown to the contrary. p. 328.

5. APPEAL.---Objection to admission of evidence not suggested to trial court will not be considered on appeal.---An objection to the admission of evidence which was not suggested to the trial court will not be considered on appeal to reverse the judgment. p. 328.

6. APPEAL.---Appellee not allowed to urge, on petition for rehearing, objection to evidence not suggested on original hearing.---An appellee will not be heard to urge, on his petition for rehearing, an objection to the admission of evidence which was not called to the attention of the court on the original hearing. p. 328.

Eminent domain proceeding by the Illinois Central Railroad against Michael E. Howard. From a judgment for defendant, the plaintiff appeals. Reversed.

Rehearing Denied June 23, 1925, Reported at: 196 Ind. 323 at 328.

From Shelby Circuit Court; Alonzo Blair, Judge.

Eminent domain proceeding by the Illinois Central Railroad against Michael E. Howard. From a judgment for defendant, the plaintiff appeals.

Reversed.

Ed. K. Adams, Hays & Hays, J. Olias Vanier, W. S. Horton and R. V. Fletcher, for appellant.

Thomas D. McGee, Eph Inman, Bachelder & Bachelder and Wray & Sullivan, for appellee.

OPINION

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 thirty-eight feet six inches wide along the west side of Senate avenue, running back the same width 110 feet to a ten 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 eighty feet nine inches long and thirty-six feet six 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, twenty-nine feet three inches long across the entire width of the lot. The building had been used as a machine shop by appellee for more than thirty 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 desirable, a triangular piece off the northwest corner of the vacant space behind appellee's building, twenty feet wide along the alley at the west end and running twenty-nine 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 a lot shown to be thirty-one feet wide, extending through from the street to the alley, that was in the same block, only thirty-eight and one-half 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...