Illyes v. White River Light And Power Company

• Decision Date: 24 January 1911
• Docket Number: 21,635
• Parties: Illyes et al. v. White River Light and Power Company
• Court: Indiana Supreme Court

93 N.E. 670

175 Ind. 118

Illyes et al. v. White River Light and Power Company

No. 21,635

Supreme Court of Indiana

January 24, 1911

From Hamilton Circuit Court; Meade Vestal, Judge.

Action by the White River Light and Power Company against Emma A Illyes and another. From an interlocutory order for plaintiff, defendants appeal.

Affirmed.

Fred E Hines, for appellants.

Kane & Kane, for appellee.

OPINION

Morris, J.

Appellee is a corporation organized in 1906, under the manufacturing and mining act, to manufacture electricity, and to supply light, heat and power to persons and municipalities, and, for the purpose of securing power for such manufacture, to erect and maintain a dam in White river in Hamilton county.

In 1907 (Acts 1907 p. 277, § 5074 et seq. Burns 1908) the General Assembly enacted a law authorizing the formation of companies for the manufacture and sale of electricity for lighting, etc., to cities and towns. Section eight of that act (§ 5081, supra) authorized such corporations to condemn lands of individuals for dams and other structures, such condemnation to be made under the eminent domain act of 1905 (Acts 1905 p. 59, § 893 et seq. Burns 1905). By section ten of this act ( § 5083, supra), the grant of the powers therein enumerated was limited to companies organized to produce electricity by means of water power only. In 1909 (Acts 1909 p. 276) said section ten was amended to read as follows: "The provisions, powers and privileges contained within this act shall extend to and be used by all companies organized to produce electricity: Provided, however, that no condemnation shall ever be made by virtue of this law of any lands lying within the corporate limits of any city or town: Provided, nothing herein contained shall be construed to affect in any manner the rights or powers of any company or corporation organized or existing under or by virtue of the provisions of any other law of this State."

Appellee filed its complaint in the Hamilton Circuit Court to condemn a tract of land in said county owned by appellant Emma A. Illyes, which, it averred, it intended to use as a part of its reservoir above its dam in process of construction, for storing water to be used by appellee in generating electricity with which it intended to furnish light, heat and power to the citizens of Noblesville and vicinity. Notice was served on appellant Emma A. Illyes, and her coappellant Peter P. Illyes, who is her husband. A special appearance was entered by appellants, who filed a motion to quash the summons, which motion was overruled. Thereupon, on December 10, 1909, appellee, pursuant to leave granted by the court, filed an amended complaint, which contained the allegations before named. On December 24, 1909, appellants filed their written objections to the appointment of appraisers. The cause was submitted to the court for trial, which resulted in the overruling of the objections, and the appointment of appraisers to assess the damages. From that interlocutory order, this appeal is prosecuted.

Appellants specify seventeen errors, but fail to support a number of them either by argument or the citation of authorities. The alleged errors, not waived, will be discussed in their order.

Appellants contend (1) that acts conferring the power of eminent domain are to be strictly construed, and (2) that the complaint does not state facts sufficient to show that appellee has the power to exercise the right to appropriate appellants' land.

The power of eminent domain has been characterized as a "high and dangerous one," and it cannot be exercised by appellee unless clear legislative authority can be shown for so doing. Kinney v. Citizens' Water, etc., Co. (1909), 173 Ind. 252, 90 N.E. 129, and cases cited; Morrison v. Indianapolis, etc., R. Co. (1906), 166 Ind. 511; Board, etc., v. Jarnecke (1905), 164 Ind. 658, 74 N.E. 520. Appellants' contention, that the complaint is insufficient under § 4596 Burns 1908, Acts 1905 p. 81, is correct. Appellee is not asserting any such right by reason of the provisions of that act, but is claiming the power of eminent domain under the provisions of the act of 1907, supra, which was amended as to section ten thereof in 1909. Section eight of the act of 1907 (§ 5081, supra), expressly authorizes companies organized under the provisions of that act to manufacture and sell electric current to towns and cities for the purpose of supplying heat, light and power, to acquire, own, maintain and operate all necessary and convenient lands and dams, and, to this end, to appropriate and condemn lands of individuals necessary to the carrying out of its objects; and expressly provides for the overflowage by backwater from its dams. Appellee could not have availed itself of the privileges conferred by the act of 1907, as originally enacted, but the General Assembly of 1909 amended section ten of the act so as to extend to all companies organized to produce electricity the powers and privileges contained in the act of 1907. It is provided, however, in said amendment, that nothing therein contained "shall be construed to affect in any manner the rights or powers of any company or corporation organized or existing under or by virtue of the provisions of any other law of this State." It is evident that by this proviso the legislature intended merely that no power nor right held by any electrical company, previous to the amendment, by virtue of the provisions of any other law of the State, should be abridged.

The complaint states all the necessary facts to bring appellee within the express provisions of the act of 1907 as amended in 1909.

It is next contended that the evidence does not show a necessity for taking the amount of land described in the complaint. The statute authorizes appellee to appropriate such amount of land as may be "necessary" to the carrying out of its objects. This enables it to take such an amount as may be reasonably necessary under the circumstances. 1 Lewis, Eminent Domain (2d ed.) § 279.

There was evidence tending to show that by the construction of a concrete dike, at a probable expense of $ 100,000, the use of a great portion of the land sought to be appropriated in this action might be avoided, but the evidence supports the decision of the trial court, that it was reasonably necessary, under the circumstances, for appellee to take the amount of land designated in its complaint.

It is next contended by appellants that the land described in the complaint extends only to the low-water mark of the river when, in fact, appellant Emma A. Illyes owns the land to the thread of the stream; that between low-water mark and the thread of the stream there is a tract of...