Indianapolis & Cincinnati Traction Co. v. Larrabee
| Decision Date | 01 March 1907 |
| Docket Number | 20,836 |
| Citation | 80 N.E. 413,168 Ind. 237 |
| Court | Indiana Supreme Court |
| Parties | Indianapolis & Cincinnati Traction Company v. Larrabee et al |
From Hamilton Circuit Court; Ira W. Christian, Judge.
Condemnation proceeding by the Indianapolis & Cincinnati Traction Company against Thomas W. Larrabee and wife. From a judgment for defendants, plaintiff appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.
Reversed.
William S. Christian, George D. Forkner, N. B. Brandenburg and Marsh & Cook, for appellant.
Mason & Jackson and Wymond J. Beckett, for appellees.
Appellant is a corporation organized under the laws of Indiana governing the incorporation of street and interurban street railroad companies. These proceedings were instituted by appellant against appellees, Thomas W. and Anna Larrabee, his wife, in the Hancock Circuit Court, by filing an instrument of appropriation, seeking thereby to condemn or appropriate, for a right of way for its electric railroad certain land in said county belonging to appellee Thomas W Larrabee. The strip of land appropriated embraced four acres and a fraction. Appraisers were appointed by the court, who subsequently filed their award of damages in the sum of $ 800, to which appellant excepted. The cause was venued to the Shelby Circuit Court, and from thence the venue was changed to the Hamilton Circuit Court, wherein, on the issues joined by the parties, there was a trial by jury and a verdict returned in favor of appellees, assessing damages at $ 800. A motion by appellant for a new trial was overruled, and judgment was rendered on the verdict. The errors relied upon for reversal arise out of the ruling of the court in denying the motion for a new trial.
The questions discussed by the parties to this appeal relate to the amount of compensation which appellee is entitled to recover for the land appropriated by appellant, to the damages sustained by reason of any injury or depreciation in the value of the remainder of the tract of land not taken by appellant by reason of the location and construction of the railway, to questions arising out of the admission and rejection of evidence upon the trial, and to the instructions given by the court. The court, at the request of appellant gave seven instructions to the jury. Six instructions were given on the request of appellee, number five of which is as follows:
"In assessing the damages that may be awarded to said Thomas W. Larrabee, in case you find for him, you may take into consideration the shape and size of the parcel or parcels of land which remain; the difficulty of access and of communication between the different parts, if any, caused by such appropriation; any permanent interference with the drainage of the land or with the flow of surface-water, or with the water supply; the danger, if any, to which the occupants of the farm and the stock thereon will be exposed; any permanent interference with or loss of stock water on said farm; any permanent inconvenience, difficulty, or danger that may be caused to said Larrabee, by reason of said appropriation, and the construction, maintenance, and operation of said electric traction road, in the cultivation, use, and enjoyment of said farm of said Larrabee by him, and also all other injuries of a permanent character, as shown by the evidence, if any, to the lands of said Larrabee, by said appropriation, in so far as the same, or any of the foregoing items, affect the market value of said farm." (Our italics.)
Appellant's counsel especially object to and criticize as erroneous all that part of the above instruction embraced in italics, which authorizes the jury in assessing damages to take into consideration the danger to which the occupants of the farm and stock thereon will be exposed. The argument is advanced that damages resulting from any danger or peril to which the person of the owner or occupant of the lands remaining unappropriated, or to any stock thereon, may be exposed, by reason of the construction or operation of the road in question, are too remote and speculative to be considered by the jury in fixing the compensation for the depreciation in value of the lands not actually appropriated, but which may be damaged by the construction or operation of the road. In this view of the law we concur.
The case of the Chicago, etc., R. Co. v. Mawman (1903), 206 Ill. 182, 69 N.E 66, was a proceeding on the part of an electric railroad company to condemn a right of way for its road across certain lots or parcels of land. The trial court in that case, in instructing the jury in regard to the assessment of damages, among others, gave the following: "It is competent in this case to take into consideration the value of the land taken in the construction and use of the railroad, as well as damages on account of unfavorable division of the lands not taken by the construction and use of the railroad, thereby causing inconvenience and danger to the person and property of the defendant, if shown, in the use and occupancy of the balance of the land." (Our italics.) Appellant's insistence in that appeal was that this instruction should not have included danger to the person of the defendant. The supreme court of Illinois, in considering the instruction, said: For error in giving this instruction the judgment of the lower ...
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