Morrison v. Indianapolis & W. Ry. Co.

• Decision Date: 08 March 1906
• Docket Number: No. 20,678.,20,678.
• Parties: MORRISON et al. v. INDIANAPOLIS & W. RY. CO. et al.
• Court: Indiana Supreme Court

166 Ind. 511

76 N.E. 961

MORRISON et al.

v.INDIANAPOLIS & W. RY. CO. et al.

No. 20,678.¹

Supreme Court of Indiana.

March 8, 1906.

Appeal from Superior Court, Marion County; Vinson Carter, Judge.

Condemnation proceedings by the Indianapolis & Western Railway Company and others against Samuel L. J. Morrison and others. From an interlocutory decree in favor of plaintiffs, defendants appeal. Reversed and remanded.

Charles Martindale and Hawkins, Smith & Hawkins, for appellants. Taylor & Woods and Harding & Hovey, for appellees.

JORDAN, J.

This is a special proceeding by appellee company whereby it seeks to condemn certain lands for a right of way under and in pursuance of an act of the Legislature entitled “An act concerning proceedings in the exercise of eminent domain.” approved February 27, 1905, and in force April 15, 1905 (vide chapter 48, p. 59, Acts 1905; 4 Burns' Supp. 1905, § 893 et seq.). Appellee, as plaintiff below on May 25, 1905, filed its complaint in the office of the superior court of Marion county, Ind.; the latter county being the one in which the lands sought to be appropriated are situated. By the complaint appellants and other landowners were made defendants. Proper notices or summons were issued by the clerk and were duly served by the sheriff. By these notices they were notified to appear in court June 10, 1905, and show cause why the property described in the complaint should not be condemned.

So far as the record discloses, appellants first appeared to the proceedings on June 19, 1905, and at that time filed their written objections to the proceedings under the original complaint. There is nothing in the record to show that appellee, at the time the objections were filed, interposed any protest or objection to their filing. After the filing thereof and on the same day, to wit, June 19, 1905, appellee by leave of court, filed an amended complaint, and thereupon appellants, by permission of court, renewed and refiled their written objections to the proceedings as presented by the said amended complaint. By the latter complaint appellee alleged, among other things, the following: “That the plaintiff, Indianapolis & Western Railway Company, is a street railway corporation, organized pursuant to the laws of the state of Indiana regulating and authorizing the construction, maintenance, and operation of street railroads, interurban street railroads, and suburban street railroads, and that it was incorporated as a street railroad company for the purpose of constructing, maintaining, and operating an interurban street railroad from the city of Indianapolis, in said county and state, to the town of Danville in the county of Hendricks; thence to the city of Greencastle in the county of Putnam; thence to the city of Brazil in the county of Clay; and to operate its cars thence to the city of Terre Haute in the county of Vigo, in said state.” It further alleged that the defendants (appellants herein) are the owners and claimants and holders of liens on the right of way sought to be appropriated. The complaint described the right of way by its termini and alleged that the width thereof varies from 12 to 50 feet according to the depth of the cut and the height of the fill and the general topography of the country. A particular description of each of the parcels of land sought to be appropriated is set forth in the complaint, and it is alleged therein that the plaintiff had been unable to agree with the owners for the purchase of the lands in question, and prayed for their condemnation and appropriation thereof for the use and purposes thereinbefore named and the right of the plaintiff to exercise the power of eminent domain for the use and purposes therein sought. The complaint further prayed for the appointment of appraisers, for the issue of summons, and for all other relief.

The grounds of the written objections interposed by appellants to the proceedings under the amended complaint are the following: (1) That the plaintiff has no right to exercise the power of eminent domain to the extent to which it proposes to appropriate the property of the defendants. (2) That the plaintiff in and by its amended complaint does not state facts which show that it is entitled to exercise the right of eminent domain to the extent proposed and attempted in and by these proceedings. (3) That under the statute under which the plaintiff is incorporated, which constitutes its charter, it is authorized to exercise the right of eminent domain and appropriate so much land only “as may be necessary for the construction, maintenance, and operation of its railroads, railroad stations, depots, power houses, shops, car barns, offices, lines for transmission of electricity for heat, light, and power”; that the land proposed to be taken in this proceeding is not taken for the site of a station, terminal, power house, substation, roundhouse, yard, car barn, office building, or any other purpose except for a right of way; that the amended complaint does not state whether the plaintiff's railroad is other than a single track road, but the defendants are informed and believe and so charge that the plaintiff's railroad is a single track railroad and that the right of way necessary for the same is nine feet wide and no more; that the plaintiff in its amended complaint states “that the width of said right of way varies from 12 feet to 50 feet, according to the depth of the cut and height of the fills and the general topography of the country”; that there are neither cuts nor fills upon the property of the defendants which render it necessary to appropriate 50 feet in width of the lands of the defendants. (4) That the amended complaint herein does not set forth its specific description of the entire tract of land of these defendants and state whether the same includes the whole or only a part of the entire parcel or tract. (5) That there is no such corporation as that named as plaintiff herein, and said plaintiff has no right to exercise the right of eminent domain. (6) That the act under which said proceedings are had, to wit, chapter 48, p. 59, of the Acts of 1905, being an act of the General Assembly of the state of Indiana, entitled “An act concerning proceedings in the exercise of eminent domain,” approved February 27, 1905, is in violation of section 1 of the fourteenth amendment to the Constitution of the United States.

The record shows that appellants demanded that the court accord them a hearing on the issue of facts formed by the averments of the amended complaint and the written objections thereto and demanded the right to introduce testimony upon such issues. This demand the court, over appellants' exceptions and objections, denied, for the reason, as stated by the court, that under the procedure of the statute upon which the action was based it had no power to hear any testimony on any issue of fact raised by appellants' written objections, and thereupon, without any hearing, it overruled said written objections, to which ruling appellants duly excepted. The court then announced that it would immediately proceed to make an interlocutory order appointing appraisers in said cause. It appears that appellee's counsel thereupon tendered to the court, for entry in said cause, an interlocutory order and decree which they had previously prepared. To the entering of this or any other interlocutory order in the cause appellants by counsel objected for the following reasons: (1) That the plaintiff had not introduced or submitted any evidence in the cause to sustain any of the allegations of the complaint herein. (2) That there is and has been no evidence submitted to the court to sustain any of the facts and allegations alleged in the complaint, nor any evidence to sustain the facts found in the decree and interlocutory order. (3) That no evidence has been submitted to the court, and the court has no knowledge and information upon which and from which the facts found in the decree could be based. (4) That said decree is submitted by the plaintiff and is entered by the court without the introduction or submission of any evidence in the cause by any of the parties thereto. These objections the court overruled and then announced that it would enter said interlocutory order and decree as requested by appellee, which it accordingly did, and the same is the order or decree from which this appeal is prosecuted. After the entry of this decree appellants filed a motion to strike it out, assigning in said motion as reason therefor that no evidence had been submitted to the court and that, therefore, the court had no jurisdiction to make or enter the interlocutory order in controversy. This motion was overruled, to which appellants excepted. Appeal prayed for and taken as provided by the statute.

The errors assigned for reversal of the interlocutory order in question are: (1) That the court below had no jurisdiction of the subject-matter. (2) That the court below erred in overruling the objections of the appellants to the proceedings after the filing of the amended complaint. (3) That the court erred in overruling the oral objections of the appellants to the entering of the decree and interlocutory order in this cause. (4) That the court erred in overruling the motion of the appellants to strike out and reject the decree and interlocutory order entered in said cause. (5) That said proceedings are void and should be set aside and dismissed for the reason that the act under which said proceedings are had, to wit, chapter 48, p. 59, of the Acts of 1905, being an act of the General Assembly of the state of Indiana entitled “An act concerning proceedings in the exercise of eminent domain,” approved February 27, 1905, is invalid because it is in conflict with section 1 of the fourteenth amendment to the Constitution of the United States.

The contentions of appellants' counsel in the main are that the court denied them, at the...