Northern Indiana Public Service Co. v. McCoy

Citation157 N.E.2d 181,239 Ind. 301
Decision Date24 March 1959
Docket NumberNo. 29696,29696
PartiesNORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellant, v. Robert F. McCOY and Henrietta C. McCoy, husband and wife, Appellees.
CourtIndiana Supreme Court

Lawyer, Friedrich, Petrie & Tweedle, Hammond, Sammons & Sammons, Kentland, for appellant.

Chris J. Pappas of Pappas & Garrett, Charles K. Whitted of Strom & Whitted, Gary, for appellees.

BOBBITT, Judge.

Appellant, an Indiana public utility corporation, brought this action to appropriate a right-of-way for power line purposes across certain lands of appellees in Lake County, Indiana.

The appraisers in their report awarded damages in the amount of $1,650. To this report appellees filed written exceptions alleging the damages to be inadequate. A trial by jury was subsequently had, and a verdict returned assessing damages in the sum of $7,025. Judgment was rendered in the amount of the verdict, plus interest in the sum of $1,173.34.

The overruling of appellant's motion for a new trial is the sole error assigned. While 13 grounds or specifications therefor are assigned and discussed in the argument section of appellant's brief, we shall, because of the result reached, consider only those pertaining to the admission of certain evidence on the amount of damages.

Appellees' property here affected consists of 13 acres of level terrain, triangular in shape. The easement sought by appellant consists of a strip 100 feet wide by parallel lines off the east side of the entire tract.

A subdivision, called 'Independence Park,' extending along the entire western boundary of the property herein was opened in 1939 and is now fully populated. This subdivision and appellees' property are separated by an open ditch which drains excess water and 'probably sewage' that is first processed by septic tanks.

Immediately to the north and east of appellees' property lies the improved Brantwood Addition to the Town of Highland. The east boundary line of appellees' property is the dividing line between Munster and Highland. Immediately east is the unimproved subdivision of Melody Lane Gardens. The only access to appellees' property at the time of the trial herein was Martha Street. It is 40 feet wide, unimproved, runs east and west and connects to Highway No. 41.

Sometime in 1952 the property herein was rezoned from Class 'A' to Class 'B' residence, in contemplation of the preparation of a plan or plat to present to the Town Board of Munster for approval. This first plat was not approved, for reasons here immaterial, but later in the same year appellees' Exhibit No. 1 was prepared and allegedly approved by the Town Board of Munster. However, appellee-Robert F. McCoy testified, on cross-examination, that Exhibit No. 1 was a 'tentative plat' and was never approved either by the Town Board or the Planning Commission of Munster.

Three other plats of appellees' tract of land were prepared after Exhibit No. 1, but it is not shown that any of them was ever regularly approved and recorded.

Further, on cross-examination, appellee-Robert F. McCoy testified as follows:

'Q. Was it ever recorded? [Appellees' Exhibit No. 1.] A. No, sir, it wasn't ever recorded.

'Q. So that today this ground is not platted ground, is it? A. No, it isn't.

'Q. It is acreage, isn't it? A. At the present time it is acreage, certainly it has to be acreage.

'Q. Well, it has been acreage all the time you have owned it, hasn't it been? A. That is right.'

Appellee-Robert F. McCoy further testified that the value of lots taken by the condemnation for the easement sought by appellant was $15,000. He said, 'Well, I put the value at $15,000, there was ten lots at $1500 each [lots numbered 28 through 37, inclusive, as shown on defendants-appellees' Exhibit No. 1] and ten times $1500 is $15,000.'

William M. Shafer, a real estate appraiser, testified as a witness for appellees that 'predicated on the subdivided land, the lots, not on acreage' appellees' property taken by appellant was, on October 15, 1953, worth $16,500.

Earl V. Smith, also a real estate appraiser, testified as a witness for appellees that based on the value of lots numbered 28 through 37, inclusive, as shown by Exhibit No. 1, at $30 a front foot, less certain deductions not here material, the net damages 'to lots 28 to 37, inclusive and to Lot 1' was $19,750.

On cross-examination this witness testified that if the property were not platted into lots and not improved for residential purposes, his statement on direct examination as to damages would not have been the same, and that the amount of damages would have been less.

Three witnesses testified for appellant as to the amount of damages. All based their appraisal on the value of the land as acreage and not as lots as shown on defendants-appellees' Exhibit No. 1. One of these witnesses testified that the value of 'the rights' taken was, on October 15, 1953, $1,000; another that the strip of ground covered by the easement was, on such date, worth $1,526; and the other that such strip had a fair market value at that time (October 15, 1953) of $2,205.

There is ample evidence from which the jury might have concluded that appellees' tract of land was best adapted to, and most available for, residential purposes. However, appellees' direct evidence as to value was all based upon the individual value of each lot as shown by the preliminary plat which was introduced in evidence as defendants-appellees' Exhibit No. 1.

There is no evidence that the lots as shown on the preliminary plat (Exhibit No. 1) were improved for residential use in any manner.

Appellant asserts that it was error to admit into evidence, over its timely objections, defendants-appellees' Exhibit No. 1 which is a 'Preliminary Plat of proposed McCoy Addition to Munster,' because it is not a proper plat to be used in relation to evidence which appellees sought to elicit from the witness for the reason that it does not bear the approval of the Town Board of Munster and does not show that it was ever recorded.

'Plats of subdivisions are by statute required to be recorded, § 48-801, Burns' 1950 Replacement, Acts 1905, ch. 129, § 246, p. 219; and approved by the board of public works, § 48-802, Burns' 1950 Replacement, Acts 1905, ch. 129, § 247, [239 Ind. 307] p. 219. Plat books kept in the office of the county recorder are public records, Miller v. City of Indianapolis et al., 1890, 123 Ind. 196, 24 N.E. 228; and the recording of a plat of a subdivision is notice to the world of the dedication of streets and alleys and of the restrictive covenants therein contained. Backer v. Pyne, 1892, 130 Ind. 288, 30 N.E. 21, 30 Am.St.Rep. 231; Keesling v. Doyle, 1893, 8 Ind.App. 43, 35 N.E. 126; Spencer Stone Co. v. Sedwick, 1915, 58 Ind.App. 64, 105 N.E. 525.' Wischmeyer v. Finch, 1952, 231 Ind. 282, 286, 107 N.E.2d 661, 663.

Until the plat of a subdivision is recorded as provided by § 48-801, supra, no lots disignated therein can be sold. The recording of the plat as provided by statute confirms the subdividing of the land in the manner and for the purposes shown by the plat, including notice of the dedication of all streets and alleys. Also, until the plat of a proposed subdivision is recorded there can be no assurance that there will not be changes in the size of lots, layout of streets and alleys, restrictions and dedications, if any, or the use and purpose of the subdividing. The plat might be abandoned altogether, or several proposed plans for subdivision may be prepared as appellees have done in the case at bar. Until the plat is recorded as provided by statute, a prospective purchaser has no assurance that a subdivision will ever be established, and the lots and streets shown thereon are nothing more than lines on paper. The act of recording brings the subdivision into being and makes of it a reality instead of a mere outline on paper of a tentative proposal of the subdivider.

A plat is a division of land into lots, streets and alleys, represented on paper so they can be identified. Gannett v. Cook, 1953, 245 Iowa 750, 61 N.W.2d 703, 707; Thompson v. Hill, 1912, 137 Ga. 308, 73 S.E. 640, 643; 11 C.J.S. Boundaries § 4, p. 543. See also: Chandler et al. v. City of Kokomo et al., 1894, 137 Ind. 295, 298, 36 N.E. 847.

Such a division of land does not become a legal subdivision in Indiana until the plat thereof has been recorded in compliance with the provisions of § 48-801, supra. Cf. Ernsperger v. City of Mishawaka, 1907, 168 Ind. 253, 256, 80 N.E. 543; Wischmeyer v. Finch, supra, 1952, 231 Ind. 282, 107 N.E.2d 661.

Since the plat constituting appellees' Exhibit No. 1 was not recorded as required by statute the land represented thereon is not a legal subdivision of the Town of Munster, and it must, therefore, be considered as unplatted land or acreage for the purpose of determining its value in an eminent domain proceeding such as that herein. It then follows that defendants-appellees' Exhibit No. 1 was not competent evidence to show the value of appellees' property or the amount of damages, if any, to which they were entitled.

The rule which governs here is ably stated in 4 Nichols on Eminent Domain, 3d Ed., § 12.3142, p. 107 as follows:

'It is well settled that if land is so situated that it is actually available for building purposes, its value for such purposes may be considered, even if it is used as a farm or is covered with brush and boulders. The measure of compensation is not, however, the aggregate of the prices of the lots into which the tract could be best divided, since the expense of cleaning off and improving the land, laying out streets, dividing it into lots, advertising and selling the same, and holding it and paying taxes and interest until all the lots are disposed of cannot be ignored and is too uncertain and conjectural to be computed. The measure of compensation is the market value of the land as a whole, taking into consideration its value for...

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