Lafayette & I. Rapid Ry. Co. v. Butner

• Decision Date: 08 April 1904
• Citation: 70 N.E. 529,162 Ind. 460
• Parties: LAFAYETTE & I. RAPID RY. CO. v. BUTNER et al.
• Court: Indiana Supreme Court

162 Ind. 460

70 N.E. 529

LAFAYETTE & I. RAPID RY. CO.

v.BUTNER et al.

Supreme Court of Indiana.

April 8, 1904.

Appeal from Circuit Court, Boone County; James L. Clark, Special Judge.

Proceeding by the Lafayette & Indianapolis Rapid Railway Company against Charles F. Butner and others to condemn lands for railroad right of way. From an order denying the application of the railway company for the appointment of appraisers, it appeals. Transferred from Appellate Court under section 1337u, Burns' Ann. St. 1901. Appeal dismissed.

O. B. Jameson, Chas. M. Zion, and Geo. P. Haywood, for appellant. Pierre Gray and S. M. Ralston, for appellees.

GILLETT, C. J.

This was a proceeding instituted under section 5160, Burns' Ann. St. 1901, by the above-named company, to condemn certain lands for the purposes of a right of way. The Boone circuit court permitted issues of fact to be framed upon the instrument of appropriation, and, after hearing evidence as to such issues, entered an order refusing to appoint appraisers. From such order said company has attempted to appeal to the Appellate Court. The threshold question in this case is whether we have any jurisdiction over this proceeding, or, in other words, whether such an appeal will lie. The statute under which the proceeding was had makes no provision for an appeal from such an order. The only provision made for an appeal is to a trial court, and such appeal cannot be taken until after the award has been made. In so far as final judgments under the Civil Code are concerned, appeals can only be taken from the judgments of “circuit courts and superior courts.” Section 644, Burns' Ann. St. 1901. A subsequent section of the Civil Code provides for appeals from certain interlocutory orders made by a court or judge (section 658, Burns' Ann. St. 1901), but appeals in instances like the present are not thereby authorized. Other express provisions for appeals may be found in the statutes, but such provisions do not affect the pending question. Sections 1337a-1337i, Burns' Ann. St. 1901, and Acts 1903, p. 280, c. 156, relative to the jurisdiction of this court and of the Appellate Court, are but supplemental to the express provisions for appeal which the statutes contain. It will be seen, upon this state of legislation, that, if the proceeding in question can be said to be a civil action at the stage it had reached below, the right of appeal would depend upon the accidental circumstance as to whether the application for the appointment of appraisers was denied in term time or in vacation. We do not believe that this was the purpose of the General Assembly, and we are therefore at once led to doubt whether an appeal is authorized from an order denying an application for the appointment of appraisers.

But an even more substantial reason urges us to the conclusion that such an appeal will not lie. The statute which authorizes the condemnation of land for railroad purposes does not relate to actions according to the course of the common law, but relates to special proceedings more nearly comparable to inquests than to civil actions. The very provision of the statute as to the taking of an appeal by exceptions to the award impliedly forbids a resort to any other statute for authority to appeal during the preliminary stages of the proceeding. The power of eminent domain inheres in sovereignty, and, in the division of powers, falls within the domain of the legislative authority. The mode of exercising the right is for the Legislature, in the absence of constitutional restraints. Secombe v. Milwaukee, etc., R. Co., 23 Wall. 108, 23 L. Ed. 67;Anderson v. Caldwell, 91 Ind. 451, 455, 46 Am. Rep. 613. The tribunal which the state provides to assess the damages must be impartial, but there is no requirement that the tribunal should be a court. It is proper, however, to provide for a judicial examination into the question as to whether the conditions which are required to exist to warrant the appropriation have been observed. Boom Co. v. Patterson, 98 U. S. 403, 25 L. Ed. 206;Searl v. School Dist., 124 U. S. 197, 8 Sup. Ct. 460, 31 L. Ed. 415.

Whether the statute we are considering contemplates that the court or judge shall permit issues to be made and tried before the appointment of appraisers, we need not and do not determine. Our present purpose is to evince the proposition that the proceedings are special at the stage indicated, and that therefore a right of appeal is not to be implied from the general language of the Code relative to such right.

Proceedings of this character may, upon appeal from the award, become so far analogous to civil actions as to be governed by the provisions of the Code in regard to the procedure; but they are not civil actions in their earlier stages, but are statutory proceedings of a special nature. Lake Shore, etc., R. Co. v. Cincinnati, etc., R. Co., 116 Ind. 578, 19 N. E. 440. In 2 Cyc. 540, it is stated: “It is a...