Indiana, Bloomington and Western Railway Co. v. Allen

• Decision Date: 14 February 1885
• Docket Number: 11,503
• Citation: 100 Ind. 409
• Parties: Indiana, Bloomington and Western Railway Company v. Allen
• Court: Indiana Supreme Court

100 Ind. 409

Indiana, Bloomington and Western Railway Company v. Allen

No. 11,503

Supreme Court of Indiana

February 14, 1885

From the Fountain Circuit Court.

C. W Fairbanks, L. Nebeker and H. H. Dochterman, for appellant.

T. F Davidson, for appellee.

OPINION

Bicknell C. C.

This was an application by the appellee, as owner of land, for a writ of assessment of damages under section 909, R. S. 1881.

The application was a complaint alleging the plaintiff's ownership of the southeast 1/4 of section 31, of town. 20 north, of range 8 west, and the appropriation of a part thereof by the defendant, describing that part by metes and bounds, the same being a strip 100 feet wide extending from east to west across the whole quarter section, alleging that the defendant had built thereon its main track and a side track, claiming authority therefor under the railroad act of May 11th, 1852, but had never filed an instrument of appropriation, nor instituted any assessment proceedings, and that no damages for the taking of said strip of land had ever been assessed, or paid, or tendered. The complaint demanded a writ to assess the value of the strip taken, and the damages to the residue of said quarter section.

The court issued the writ in accordance with sections 886, 887, 907, 908 and 909, R. S. 1881. The writ and assessment were duly returned. The return showed a meeting of the jurors at the time and place appointed; that the parties were duly notified thereof; that the jurors were then and there duly empanelled and sworn, and then and there assessed the damages of the applicant at $ 880, to wit, $ 280 as the value of the strip taken, and $ 600 as damages for the injury to the residue of said quarter section.

Section 896, R. S. 1881, provides that the defendant "may appear and traverse any material fact therein stated in the inquest, or he may plead or show any valid matter in bar of the right of the plaintiff to have the benefit of such writ; and issues of law and of fact may be made up and tried, * * * and proceedings had as in other actions." See Marion, etc., R. R. Co. v. Ward, 9 Ind. 123; Indianapolis, etc., R. R. Co. v. Newsom, 54 Ind. 121; Church v. Grand Rapids, etc., R. R. Co., 70 Ind. 161. There was no demurrer to the application.

The defendant filed a writing of which the first two paragraphs were answers to the complaint, and the last five paragraphs were exceptions to the assessment, and were numbered 3, 4, 5, 6 and 7.

The first paragraph of answer was struck out on the plaintiff's motion; a motion to strike out the second paragraph of answer was overruled. A motion by the plaintiff to strike out all of the defendant's exceptions to the assessment was overruled.

The plaintiff also excepted to the assessment, and a demurrer to his exceptions was sustained. Defendant's exceptions to the assessment numbered 4, 5, 6 and 7 were overruled by the court.

The plaintiff replied to the second paragraph of the defendant's answer in two paragraphs, of which the first was a general denial. He also filed a denial of the defendant's exception to the assessment numbered 3.

The defendant moved to strike out the second paragraph of the reply, and he also moved to strike out a part of said second paragraph of reply, and these motions were overruled.

The matter was submitted to the court for trial on the complaint, the writ, the assessment, the second paragraph of answer, the defendant's exception to the assessment numbered 3, and the plaintiff's denial thereof, and the plaintiff's reply to said second paragraph of answer.

The court found for the plaintiff. The defendant moved for a new trial for the following reasons:

1 and 2. Excessive damages.

3 and 4. That the finding is not sustained by and is contrary to the evidence.

5. Error in the admission of evidence, to wit, a deed from the plaintiff to Bartlett Fields for all of said quarter section except the strip taken by the defendant.

The motion for a new trial was overruled. Judgment was rendered for the plaintiff for the amount of the assessment and costs. The defendant appealed.

There are fourteen specifications of error, but the second, third and fourth are not proper assignments of error; they belong to the reasons for a new trial. The fourteenth specification is not available, because the alleged action of the court therein asserted is not shown in the record. The remaining specifications of error are as follows:

1. Overruling the motion for a new trial.

5. The complaint does not state facts sufficient, etc.

6. Striking out the first paragraph of the answer.

7, 8, 9, 10 and 11. Overruling the defendant's exceptions to the assessment numbered 4, 5, 6 and 7.

12. Overruling the motion to strike out the second paragraph of the reply.

13. Overruling the motion to strike out a part of second paragraph of the reply.

There was no error in overruling the defendant's exceptions to the assessment numbered 4, 5, 6 and 7. Exceptions 4 and 5 allege that the defendant was not properly notified of the assessment.

The sheriff's return shows that the defendant was served with a sufficient notice of the time and place and purpose of the assessment, to wit: "To assess the damages sustained by James L. Allen, the plaintiff in the above entitled cause, by reason of the taking by the defendant in said cause, the Indiana, Bloomington and Western Railway Company, of the following described premises," to wit: Then follows a description of the strip of land taken by metes and bounds, the same as that given in the complaint. A copy of the notice is annexed to the return.

The damages for taking such a strip of land across a quarter section embrace the value of the strip and any injury to the residue of the quarter section naturally resulting from such taking. White Water Valley R. R. Co. v. McClure, 29 Ind. 536; Montmorency G. R. Co. v. Stockton, 43 Ind. 328; Baltimore, etc., R. R. Co. v. Lansing, 52 Ind. 229. And see as to the sufficiency of notice as shown by a return: Colerick v. Hooper, 3 Ind. 316; Holsinger v. Dunham, 11 Ind. 346. In Swinney v. Fort Wayne, etc., R. R. Co., 59 Ind. 205, 219, it was held that a party, by appearing and filing exceptions to an assessment, waives any objection to the service of the notice.

The sixth exception to the assessment alleges that the sheriff did not charge the jury as required by sections 887 and 908, R. S. 1881. We think the provision requiring the sheriff to charge his jury as to their duty must be regarded as merely directory. Potter Dwarris Stat. 222. There was, therefore, no error in overruling the sixth exception.

The seventh exception is that the jury did not take and subscribe an oath as required by law. Section 911, R. S 1881, provides that the sheriff shall administer the proper oaths to jurors. Section 887, R. S. 1881, shows that the jury is to be empanelled and sworn. The sheriff's return shows that the jurors took and subscribed the oath thereto attached; the oath and the signatures of the jurors thereto affixed are annexed to the return. The jurors severally swear that they will to the best of their ability assess the damages sustained by the plaintiff from the taking by the defendant of the land described in the application and writ, and will assess at their true cash value the land so...