Pittsburgh, C., C. & St. L. Ry. Co. v. Town of Wolcott

• Decision Date: 06 January 1904
• Citation: 162 Ind. 399,69 N.E. 451
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. TOWN OF WOLCOTT.
• Court: Indiana Supreme Court

162 Ind. 399

69 N.E. 451

PITTSBURGH, C., C. & ST. L. RY. CO.

v.TOWN OF WOLCOTT.¹

Supreme Court of Indiana.

Jan. 6, 1904.

Appeal from Circuit Court, White County; T. F. Palmer, Judge.

Petition for the opening of a street in the town of Wolcott. From a judgment in favor of the city of Wolcott on appeal to the circuit court, the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company appeals. Affirmed.G. E. Ross, for appellant. Hanly & Wood, for appellee.

DOWLING, J.

A petition for the opening of a street in the town of Wolcott, signed by more than 12 resident freeholders, was presented to the board of trustees of that town. The board thereupon appointed three commissioners having the statutory qualifications to appraise and assess the damages and benefits accruing to the owner of any land or lot through which the proposed street was to be opened. Such commissioners, before they proceeded to perform their duties, took and subscribed the oath prescribed by the statute, which oath was indorse on the certificate of their appointment and filed with the clerk of the board. The requisite notice of the appraisement to be made, a complete description of the premises to be viewed, and the time and place of the examination and hearing, was given to the commissioners and to the appellant as the owner of land to be appropriated. The commissioners met at the time and place designated in the notice, and proceeded to examine the real estate proposed to be appropriated, and to receive evidence touching the questions before them. They made their report to the board in writing, and within the time fixed by law filed the same with the clerk of the board of trustees. The total amount of damages sustained by the appellant by reason of the appropriation of the land taken, the removal of a depot building, the construction and maintenance of crossings, and by all other causes, was estimated by the commissioners at $250, and this sum was tendered to the appellant by the appellee, but the appellant refused to accept the same. An appeal to the White circuit court was taken by the railroad company, exceptions raising questions of law and fact were filed by it, the issues formed were submitted to a jury for trial, and a general verdict was returned in favor of the appellee. Over motions for a new trial and in arrest of judgment the court rendered judgment against the railroad company that the land described be appropriated for the purposes of a public street, that the street be opened upon and over the land so appropriated, and that the railroad company sustained no damages by such appropriation. Error is assigned upon the sufficiency of the facts stated in the transcript of the proceedings of the board of trustees to constitute a complaint, the rulings of the court upon demurrers, the refusal of the court to grant appellant a new trial, and the denial of the motion in arrest of judgment.

The fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, and twenty-second assignments of error present no question. All of them allege the unconstitutionality of the statute and proceedings by virtue of which the appropriation of appellant's land was effected. Such infirmities, if they exist, cannot be presented by way of independent assignments of error. Standish v. Bridgewater, 159 Ind. 386, 65 N. E. 189. The question of the validity of the statute, proceedings, and judgment, however, is properly raised by the assignment of the alleged errors of the court in sustaining certain demurrers and overruling others and in overruling the motions for a new trial and in arrest. The transcript of the proceedings of the board of trustees shows that all the steps required by the statute, with perhaps one exception, were regularly and properly taken. No formal resolution that the public convenience required the opening of the street was necessary. Nor was it essential that a preliminary order should be made declaring that the prayer of the petition was granted. Neither of these formalities is prescribed by the statute. The act provides that if, upon petition, the board of trustees of any town may be of opinion that public convenience requires the opening of a new street or alley, the board shall appoint three commissioners, residents of such town, who shall be disinterested freeholders, to appraise and assess the damages and benefits accruing to the owner of any land or lot through which the street or alley is proposed to be constructed, or any structure thereon appropriated for such street or alley. Section 4405, Burns' Rev. St. 1901. The order appointing the commissioners was a sufficient indication of the opinion of the board that the public convenience required the opening of the street and that the petition was granted. As is said in Dillon on Municipal Corporations (4th Ed.) § 601 (466): “In exercising the power of eminent domain the city council need not preface their action-as, for example, laying out of a highway or street-by declaring that they find the same to be necessary or expedient. This necessity is sufficiently implied in their action on this subject, inasmuch as they can act only in such a case.” The statute requires that the report of the commissioners shall contain the following particulars: (1) The value of the land appropriated. (2) What real estate, if any, would be benefited (specifying the same in parcels, with the name of the owner, if known), and the proportion of benefits each owner receives, and the proportion of damages each would sustain. The report in the present case did not state the value of the land appropriated, nor what real estate would be benefited. It contained only an assessment of the damages sustained by the appellant by reason of the appropriation of the land. These omissions, however, were irregularities only, and did not constitute ground for dismissing or vacating the proceedings. Elliott Roads and Streets, § 351; Brown v. Stewart 86 Ind. 377;State v. Parker, 53 N. J. Law 183, 20 Atl. 1074;Gillett v. McGonigal, 80 Wis. 158, 49 N. W. 814;Rout v. Montjoy, 3 B. Mon. 300;Connecticut River Co. v. Clapp, 1 Cush. 559;Town of Rensselaer v. Leopold, 106 Ind. 29, 5 N. E. 761. No motion was made by the appellant before the board of trustees or in the circuit court to set aside or vacate the report of the commissioners, and, in the absence of such motion, the only question to be determined in the circuit court was the amount of damages sustained. Swinney v. The Ft. Wayne R. Co., 59 Ind. 205;Werley v. The Huntington Water Works Co., 138 Ind. 148, 37 N. E. 582; The Chicago, etc., Ry. Co. v. Jones, 103 Ind. 386, 6 N. E. 8. No motion having been made to set aside the report and for a new assessment and appraisement, we think that the transcript of the proceedings...