Indianapolis Northern Traction Co. v. Dunn

• Decision Date: 28 November 1905
• Docket Number: No. 5,474.,5,474.
• Citation: 76 N.E. 269,37 Ind.App. 248
• Parties: INDIANAPOLIS NORTHERN TRACTION CO. v. DUNN et al.
• Court: Indiana Appellate Court

37 Ind.App. 248

76 N.E. 269

INDIANAPOLIS NORTHERN TRACTION CO.

v.DUNN et al.

No. 5,474.^*

Appellate Court of Indiana, Division No. 1.

Nov. 28, 1905.

Appeal from Circuit Court, Miami County; Joseph N. Tillett, Judge.

Condemnation proceedings by the Indianapolis Northern Traction Company against Peter Dunn and others.From the judgment, plaintiff appeals.Affirmed.

Loveland & Loveland, J. A. Van Osdol, and A. W. Brady, for appellant.Cox, Reasoner & O'Hara, for appellees.

ROBINSON, J.

On April 4, 1903, appraisers appointed in condemnation proceedings instituted by appellant awarded appellees $1,100.On April 13, 1903, appellant filed its exceptions to the award, and on May 8, 1903, paid the amount of the award to the clerk of the circuit court.On the same day the clerk paid the award so received to the attorneys of appellees.Afterward the case was tried before a jury in the circuit court on the issues raised by the exceptions filed by appellant, and a verdict returned by the jury in favor of appellees for $1,350.Judgment was rendered in appellees' favor for $1,350, but, upon appellant's motion, was afterwards modified and rendered for $250.

The award of the appraisers was only an initiatory step in the proceedings, which might or might not be final, at the option of the parties.Norristown, etc., Co. v. Burket, 26 Ind. 53.When appellant paid the amount awarded by the appraisers, it had a right to the possession and a prima facie claim to the land, subject to an appeal within the time fixed by statute.If no appeal had been taken, at the end of that time the title to the land would have vested, and would relate back to the date of payment.As an appeal was taken, appellant did not acquire title, but did have the right to hold possession and proceed with the construction of its road pending litigation.It asked the circuit court to fix the compensation that should be paid.It continued the proceedings.By its own act it created a condition with which it must comply before it could acquire title.Having prosecuted its appeal to judgment, it must pay or tender the amount so fixed by the court, and on failure to do so it acquires no title to the land, and its right to hold possession and prosecute its work ceases.When it took an appeal to the circuit court, the question of just compensation is tried de novo.“The prayer for an appeal,” said the court in Lake Erie, etc., R. Co. v. Kinsey, 87 Ind. 514, “and the intention to take an appeal, do not continue the litigation or in any way interfere with the finality of the judgment as to the just compensation; and, if the judgment on appeal is for more than the award of the appraisers, the difference must be paid or tendered before the land can be finally taken.Mills, Eminent Domain, § 187;Peterson v. Ferreby, 30 Iowa, 327;Richards v. Des Moines, etc., R. Co., 18 Iowa, 259;Blackshire v. Atchinson, etc., R. Co., 13 Kan. 514.”See, also, Terre Haute, etc., R. Co. v. Crawford, 100 Ind. 550.

Appellees filed no exceptions to the award made by the appraisers, and, when appellant paid the amount into court, appellees were entitled to receive the money.Had appellees filed exceptions and appealed, and had then received the amount awarded and paid into court, they could not further prosecute their appeal.It is a well-settled rule that a party cannot accept the benefit of an adjudication and yet allege it to be erroneous.SeeBaltimore, etc., R. Co. v. Johnson, 84 Ind. 420, and cases cited.But appellees are not questioning the award of the appraisers.They thought proper to abide by the award.That the question of damages was litigated in the circuit court was not of their choosing.They were taken into the circuit court by appellant to litigate the question of just compensation de novo.The same question was to be tried that would have been for trial, had the appeal from the award been taken by appellees.The result of the appeal by appellant was to set aside the report of the appraisers so far as appellant was concerned.The payment of the award into court by appellant was not obligatory.The payment was voluntary.It was not made to stay execution.The purpose of the payment is clear.Appellant could, under the statute, derive a benefit by paying the award into court.

Complaint is made of the following instruction: “In estimating the damages suffered by Peter Dunn, the owner of the real estate in controversy, you may take into consideration the manner in which the land is divided by the line of the traction company as affecting the size and shape of the fields, as affecting the access to the woods pasture, and as affecting the passage from one part of the farm to another, to which may be added any other things either annoying or hurtful and necessarily incident to the permanent location and operation of a traction line across a farmer's premises.The rule in condemnation proceedings is that all damages, present or prospective, that are the natural or reasonable incident of the improvement to be made, or work to be constructed, not including such as may arise from negligence, or unskillfulness, or from wrongful acts of those engaged in the work, must be assessed.Damages are assessed once for all, and the measure should be the entire loss sustained by the owner, including in one assessment all the injuries resulting from the appropriation.”Objection is made to that part of the...