Indianapolis Northern Traction Co. v. Ramer

• Decision Date: 01 February 1906
• Docket Number: No. 5,673.,5,673.
• Citation: 76 N.E. 808,37 Ind.App. 264
• Parties: INDIANAPOLIS NORTHERN TRACTION CO. v. RAMER.
• Court: Indiana Appellate Court

37 Ind.App. 264

76 N.E. 808

INDIANAPOLIS NORTHERN TRACTION CO.

v.RAMER.

No. 5,673.

Appellate Court of Indiana.

Feb. 1, 1906.

Appeal from Circuit Court, Cass County; Jno. S. Lairy, Judge.

Condemnation proceedings by the Indianapolis Northern Traction Company against William Ramer. From the judgment rendered, plaintiff appeals. Affirmed.

A. W. Brady and McConnell, Jenkines, Jenkines & Stuart, for appellant. Nelson, Myers & Yarlott, for appellee.

BLACK, J.

This was a proceeding brought by the appellant to appropriate a strip of land, part of a farm owned by the appellee, for the purpose of constructing, maintaining, and operating thereon its interurban street railroad, extending from the city of Indianapolis to various other cities, and running through said farm; the instrument of appropriation purporting to be founded on the statutes of this state, and especially on the act of March 11, 1901 (Acts 1901, p. 461, c. 207; section 5468a et seq., Burns' Ann. St. 1901), and the act amendatory of certain sections thereof, approved February 26, 1903 (Acts 1903, p. 92, c. 34).

The third instruction given to the jury at the request of the appellee was as follows: “In assessing the damages to the defendant's land, you cannot take into consideration any benefits or supposed benefits to his land, or to the lands of others, or to the community or public in general, by reason of the railroad being constructed and operated through the district.” In the eighth instruction so given it was in part said: “You are not allowed to take into account any supposed benefit to Ramer, by reason of the location of the road in that vicinity, in mitigation of damages.” In urging upon our attention the action of the court in thus instructing, counsel have discussed the question whether, in assessing damages arising from the appropriation of part of a tract of land owned by one person for the way of an interurban electric railroad under the statute relating thereto, benefits to the remainder of the tract may be considered, or whether, in estimating such damages, no deduction should be made for any benefit that may be supposed to result to the owner from the contemplated work, as in the case of an appropriation for the way of a commercial or steam railroad.

In our Civil Code of 1852 (article 41, § 683 et seq.) provisions were made for the “writ of assessment of damages.” Section 706 was as follows: “When any person, corporation or company design to construct a canal, railroad or turnpike, gravel, macadamized or plank road, or bridge, or establish a ferry, as a work of public utility, although for private profit, being authorized by law to take real property therefor, such person, corporation or company may have a writ of assessment of damages.” The writ was to be issued to the sheriff, directing him to assess the damages by a jury. Section 711 provided: “In estimating any damages under this chapter [article] no deduction shall be made for any benefit that may be supposed to result to the owner from the contemplated work.” These provisions of 1852 were incorporated in the Revised Code of 1881. Section 893 et seq., Burns' Ann. St. 1901. In the statute of 1852, providing for the incorporation of railroad companies (1 Rev. St. 1852, p. 409; section 5134 et seq., Burns' Ann. St. 1901), any railroad company formed under that act, which is unable to agree for the purchase of real estate for the construction of its track, turnouts, and water stations, is given (section 5159, Burns' Ann. St. 1901) the right to acquire title thereto by the special proceeding prescribed in that act. For such purpose the company is required (section 5160, Burns' Ann. St. 1901; section 15, 1 Rev. St. 1852, p. 414) to deposit with the clerk of the circuit court or other court of record of the county an instrument of appropriation, and to deliver to the landowner or his guardian a copy of such instrument. The court is required, upon the application of either party, to appoint, by warrant, three disinterested freeholders of the county to appraise the damages. The appraisers are required to consider the injury which the landowner may sustain by reason of such railroad, and to return their assessment of damages to the clerk of such court, setting forth the value of the property taken or injury done to the property which they assess to the owner. On making payment to the clerk, or tender to the owner, of the amount assessed, the corporation is entitled to hold the interests in the land or materials so appropriated and the privilege of using any material on such roadway and within 50 feet on each side of the center thereof. The award of the arbitrators may be reviewed by the court in which such proceedings are had on written exceptions filed by either party, though the company may take possession; and the proceedings on such appeal affect only the amount of compensation allowed. In McMahon v. Cincinnati, etc., R. Co., 5 Ind. 413, a proceeding under section 15 of this statute relating to railroad companies, it was said that this statute; and the provisions of the Civil Code above mentioned, were passed at the same session, relate to the same subject, and are not directly repugnant to each other, and that they may therefore be taken in pari materia and considered as one enactment; that the assessment may be legally made by arbitrators appointed under the one act, or by jurors selected as prescribed in the other act, but that a deduction cannot be made for any benefits that may be supposed to result to the landowner. See, also, Evansville, etc., R. Co. v. Fitzpatrick, 10 Ind. 120. In White Water Valley R. Co. v. McClure, 29 Ind. 536, a like proceeding under the railroad statute, it was said, concerning the provision of the Code forbidding deduction for benefits: “It was evidently the intention of the Legislature in enacting this provision to change the old rule of assessment in such cases, and to require that property taken by these corporations should be paid for without regard to any benefit or enhanced value to the owner's property by the facilities afforded by the construction of the road.”

The statutory law concerning street railroads has developed, as have the uses of such railroads and the means and methods by which they are constructed and operated, from simple beginnings, for which sufficient provision was contained in the act of 1861 (Laws 1861, p. 75, c. 39), relating to “street or horse” railroads upon and through the streets of cities and towns, whereby such companies were made capable of purchasing, holding, and conveying the real and personal property necessary for the construction and equipment of their roads, switches and side tracks, and were required to construct their tracks upon the center or the side of the street, so as to conform exactly to the established grade of the street. We will not take space to refer particularly to the various enactments whereby the Legislature has recognized and authorized suburban and interurban railways, and the change of motive power by the use of electricity. In 1901 the demand for electric interurban railways had increased to such an extent that it was deemed proper by the Legislature to provide for their construction through lands not within the limits of a street or highway. Section 5468a,...