McClarren v. Jefferson Sch. Tp.

• Decision Date: 17 October 1907
• Docket Number: No. 20,971.,20,971.
• Citation: 169 Ind. 140,82 N.E. 73
• Parties: McCLARREN et al. v. JEFFERSON SCHOOL TP.
• Court: Indiana Supreme Court

169 Ind. 140

82 N.E. 73

McCLARREN et al.

v.JEFFERSON SCHOOL TP.

No. 20,971.

Supreme Court of Indiana.

Oct. 17, 1907.

Appeal from Circuit Court, Greene County; O. B. Harris, Judge.

Condemnation proceedings by the Jefferson school township against Laura McClarren and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Geo. O. Sample, for appellants. Minor F. Pate, for appellee.

MONKS, J.

Appellee filed in the court below a complaint to condemn certain lands of appellant Laura McClarren, under the act of 1881 (Acts 1881, p. 592, c. 87), being sections 6006, 6007, 6008, Burns' Ann. St. 1901. After the appraisers had filed their appraisement, appellee, on leave granted by the court, amended the description of the real estate contained in the complaint to correspond with the description set out in the appraisement filed by the appraisers, to which appellants excepted. Appellants thereupon filed exceptions to the appraisement, and such proceedings were had that the court found against appellants and rendered judgment in favor of appellee.

Appellants insist that the proceedings were under the act of 1905 (Acts 1905, pp. 59-64, c. 48), being sections 893-904, Burns' Ann. St. Supp. 1905, for the reason that said act repealed the act of 1881, supra. Even if appellant's contention as to the repeal of said act of 1881 by the act of 1905 is correct-a question we do not need to decide-this proceeding is governed by said act of 1881, because the act of 1905, while it repeals all laws in conflict with it, provides that “this repeal shall not affect pending proceedings, but such proceedings may be completed as if this act had not been passed.” The record shows that the complaint in this case was filed on March 20, 1905, and that summons was served on appellants on April 11, 1905. As the act of 1905 did not take effect until after April 11, 1905, it is evident that this cause was pending when the same took effect, and therefore is governed by the act of 1881, even if the same was repealed by said act of 1905.

It is insisted that the court erred in permitting appellee to amend the description of the real estate contained in the complaint, after the appraisement had been filed by the appraisers. The record shows that the description of the real estate in the complaint was amended to agree with the description contained in the appraisement. Error was not committed in permitting such amendment. The court had full power to allow the complaint to be amended after a finding or verdict on the exceptions to remedy any defect or incorrectness in the description of the real estate. 7 Ency. Pleading & Practice, 540, 542; 15 Cyc. 859, 860; Midland Ry. Co. v. Smith, 125 Ind. 509, 510, 25 N. E. 153;Darrow v. Chicago, etc., Ry. Co. (No. 20,979, this term) 81 N. E. 1081.

It appears from the record: That in September, 1904, appellee, believing that Charles E. McClarren, the husband of appellant, Laura McClarren, was the owner in fee simple of the real estate in controversy in this case, commenced a proceeding against him to condemn said real estate for the erection of a schoolhouse thereon under said act of 1881, and that such proceedings were had in said cause that final judgment was rendered, vesting the title in said real estate in appellee in conformity with said act of 1881. Appellant Laura McClarren was not a party to said proceedings. That appellee, without any notice or knowledge that appellant Laura McClarren owned said real estate or claimed any interest therein, took possession thereof under said judgment with the belief that it was the owner thereof, and in good faith built thereon in 1904 lasting and valuable improvements, consisting of a public school building and fencing amounting to $600, and the same has been ever since used for public school purposes by appellee. That appellant Laura McClarren had full notice and knowledge of the commencement of said former proceedings against her husband to condemn said real estate, and of each and all the acts and proceedings above stated. That with said notice and knowledge she, during all the time of “the construction and erection of said improvements on said real estate, lived in sight of the same, passed by and saw the same being erected and constructed, and had full notice and knowledge of the erection and construction thereof and of the purpose for which the same was being erected, and for which the same has been at all times used, and made no objection thereto, and at no time made known to appellee, or gave appellee to know or understand, that she was, or claimed to be, the owner of said real estate, until after said improvements had been completed, and after the same had been used for the use of the public schools. That thereafter, when appellee learned that she claimed to own said real estate, this proceeding was brought. Appellant claims that said improvements under the common-law rule became her property as the owner of said real estate, and that she was therefore entitled to recover the value thereof in this case as a part of her damages, and that the court erred in holding that she could not recover the same, citing Graham v. Connersville, etc., Ry. Co., 36 Ind. 463, 10 Am. Rep. 56.

In Graham v. Connersville, etc., Ry. Co., supra, cited by appellant, the court held among other things, that when a railroad company, without having acquired the right to do so, entered upon real estate and constructed a depot and other structures for the use of the company, under the common-law rule said buildings become a part of the real estate, and therefore the property of the owner of the land, and that in a proceeding subsequently brought by the company to condemn the said real estate the landowner was entitled to have the value of said improvements included as a part of his damages. The great weight of authority, however, is that when a person, corporation, or body, invested with the power of eminent domain, enters upon land with or without the consent of the owner, express or implied, and places improvements thereon, and subsequently institutes proceedings to condemn the same land, the common-law rule that a structure erected by a tort-feasor becomes a part of the land does not apply, and the owner is not entitled to the value of such improvements.15 Cyc. 763, 764; 19 Cyc. 1056; 3 Elliott on Railroads, § 998; Lewis, Eminent Domain, § 507, pp. 1142-1148; 4 Sutherland on Damages (3d Ed.) § 1076; 10 Am. & Eng. Ency. of Law, p. 1159; Louisville, etc., Ry. Co. v. Dickson, 63 Miss. 380, 56 Am. Rep. 809;Oregon, etc., Ry. Co. v. Mosier, 14 Or. 519, 13 Pac. 300, 58 Am. Rep. 321;Justice v. Railway Co., 87 Pa. 28, 31; Jones v. N. O. & S. R. Co., 70 Ala. 227, 232; International, etc., Co. v. McLane, 8 Tex. Civ. App. 665, 28 S. W. 454;Searl v. School Dist., 133 U. S. 553, 10 Sup. Ct. 374, 33 L. Ed. 740;Aldridge v. Board of Education, 15 Okl. 354, 82 Pac. 827;Burns v. School District, 61 Neb. 351, 85 N. W. 284;Chase v. Jemmett, 8 Utah, 231, 30 Pac. 757, 16 L. R. A. 805;Ellis v. Rock Island, etc., Ry. Co., 125 Ill. 82, 17 N. E. 62;Chicago, etc., Co. v. Goodwin, 111 Ill. 273, 53 Am. Rep. 622, and cases cited; St. Johnsbury, etc., Ry. Co. v. Willard, 61 Vt. 134, 17 Atl. 38, 21 L. R. A. 528, 15 Am. St. Rep. 886;Cohen v. St. Louis, etc., Ry. Co., 34 Kan. 158, 8 Pac. 138, 55 Am. Rep. 242;St. Louis, etc., Ry. Co. v. Nyce, 61 Kan. 394, 59 Pac. 1040, 48 L. R. A. 241, and cases cited; Jacksonville, etc., Ry. Co. v. Adams, 28 Fla. 631, 10 South. 465, 14 L. R. A. 533, and cases cited. True it was held in this state in Graham v. Connersville Ry. Co., 36 Ind. 43, 10 Am. Rep. 56, cited above by appellant to sustain her contention in this case, and in Indiana, etc., Ry. Co. v. Allen, 113 Ind. 581, and cases cited on page 582 of 113 Ind. (15 N. E. 446, 447) and in Midland Ry. Co. v. Smith, 113 Ind. 233, 235, 15...