Matlock v. Bloomington Water Company
| Citation | 146 N.E. 852,196 Ind. 271 |
| Decision Date | 19 March 1925 |
| Docket Number | 24,697 |
| Parties | Matlock et al. v. Bloomington Water Company |
| Court | Supreme Court of Indiana |
Rehearing Denied June 10, 1925, Reported at: 196 Ind. 271 at 280.
1. EMINENT DOMAIN.---Change of venue statute not applicable to preliminary proceedings in eminent domain.---The statute creating the right of eminent domain and regulating the procedure (7680--7688 Burns 1926, 929--937 Burns 1914, Acts 1905 p. 59, 1--4), contemplates a summary proceeding until the question of damages is reached and the statute as to change of venue from the county is not applicable. p. 275.
2. EMINENT DOMAIN.---Evidence held to warrant finding that water company had right to exercise power of eminent domain.---Evidence warranting inference that a water company had the franchise right and was charged with the public duty to supply water to a certain city and its inhabitants, that it had a franchise from the county to lay its mains, conduits and pipes over, across and along the highways thereof, that it had a contract with the city under which it would be bound to perform that duty, and that it was actively proceeding with plans and arrangements to construct a plant for that purpose, held sufficient to warrant finding that it was entitled to exercise the power of eminent domain to secure lands enabling it to impound water for that purpose and to construct its waterworks. p. 278.
3. EMINENT DOMAIN.---Water company may exercise power of eminent domain though its plant is not yet built and in operation.---The fact that a water company's plant was not yet built and in operation would not prevent its exercise of the power of eminent domain to secure lands on which to construct its waterworks. p. 278.
4. EMINENT DOMAIN.---That water company would probably sell its water to a city with a municipal water plant or lease its plant to city does not preclude its exercise of power of eminent domain.---The fact that a water company attempting to exercise the power of eminent domain would probably furnish water to the inhabitants of a city by selling the water to the city for distribution through the mains and pipes of its municipal water plant, or by leasing its waterworks to the city for use in connection with such plant, would not preclude its exercise of the power of eminent domain as a public utility. p. 279.
5. EMINENT DOMAIN.---Trial court's decision that petitioner was entitled to exercise power of eminent domain will not be reversed when supported by evidence.---Trial court's decision that a petitioner was entitled to exercise the power of eminent domain will not be reversed on appeal merely because there was evidence tending to show that it intended to devote the property appropriated to private use, where there was evidence supporting the decision. p 279.
6. EMINENT DOMAIN.---Facts stated that would warrant inference that incorporated water company desired to appropriate land for public use.---The facts that a water company had incorporated to own, construct, operate and maintain a plant and system for the purpose of supplying a city and the inhabitants thereof with water, that it had obtained from the county the right to dam a creek and construct a reservoir and to lay its mains in certain highways, and had entered into a contract with the city to furnish it water for twenty-five years, warranted an inference that the proposed taking of property would be for a public use. p. 280.
7. EMINENT DOMAIN.---Furnishing water to a city, with which to extinguish fires and flush streets and sewers is a public purpose.---Furnishing water to a city with which to extinguish fires, flush streets and sewers, and accomplish other municipal functions, is a public purpose. p. 280.
8. EMINENT DOMAIN.---Water company's obligation to furnish water to city and its inhabitants no less binding by reason of contract with city to use its plant to distribute water to consumers and not to compete with city plant as to domestic supply.---The public duty and obligation of a water company that has contracted to furnish a city and its inhabitants with water for a period of twenty-five years and has been granted a franchise to lay its mains in certain streets of said city would not be less binding by reason of a contract with the city whereby it was to furnish water to consumers indirectly through pipes owned by the city and had agreed not to make domestic connections directly with its own mains, nor to use its lines in competition with the city plant. p. 280.
From Monroe Circuit Court; Hubert A. Rundell, Judge.
Eminent domain proceeding by the Bloomington Water Company to appropriate land of Charles Matlock and others. From an order appointing appraisers, the defendants appeal.
Affirmed.
S. C. Kivett, for appellants.
J. F. Regester and Miers & Corr, for appellee.
Appellee brought an action to appropriate certain lands for the alleged purpose of building thereon a dam, a basin in which to impound water, a power plant, and certain pipe lines and water mains, and obtaining therefrom materials for the construction of its purposed waterworks. Appellants filed twelve objections, some of which were subdivided. Appellee filed a motion to strike out each of these objections, and appellants filed a motion for a change of venue from the county, but it was overruled, and they excepted. The trial court sustained the motion to strike out six of the objections, and appellants excepted. Evidence was then heard, after which the court overruled the other six objections, and made a finding that plaintiff was entitled to appropriate the lands in question, and entered an interlocutory order appointing appraisers to assess the value of such lands and the damages to appellant's remaining lands by reason of such appropriation, when appellants again excepted, and perfected an appeal from that order.
Overruling the motion for a change of venue from the county is first assigned as error. The statute under which this proceeding was begun and prosecuted consists of twelve sections, of which the first four relate to a preliminary attempt that must be made to purchase the property, to the facts that must be stated in the petition, and to the notice to be given and how it shall be served, and provide that the court or judge in vacation shall take action thereon, "being satisfied of the regularity of the proceedings, and the right of the plaintiff to exercise the power of eminent domain for the use sought." §§ 7680-7683 Burns 1926, §§ 929-932 Burns 1914, §§ 1-4, Acts 1905 p. 59. The next section reads as follows (our italics): ...
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