Richland School Township v. Overmyer

• Decision Date: 16 March 1905
• Docket Number: 20,528
• Citation: 73 N.E. 811,164 Ind. 382
• Parties: Richland School Township v. Overmyer
• Court: Indiana Supreme Court

73 N.E. 811

164 Ind. 382

Richland School Township v. Overmyer

No. 20,528

Supreme Court of Indiana

March 16, 1905

From Marshall Circuit Court; Harry Bernetha, Judge.

Action by Richland School Township against Jeremiah Overmyer. From a decree for defendant, plaintiff appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p 590.

Reversed.

Martindale & Stevens and Essick & Montgomery, for appellant.

Samuel Parker and Isaiah Conner, for appellee.

OPINION

Montgomery, J.

This proceeding was instituted in the Fulton Circuit Court by the trustee of Richland township, Fulton county, against appellee for the appropriation, by condemnation proceedings, of one acre of land for school purposes, under the provisions of §§ 6006-6008 Burns 1901, §§ 4517-4519 R S. 1881. Appraisers were duly appointed and qualified, and returned their appraisement in the sum of $ 325, to which appellee filed exceptions. Appellant demurred without success to appellee's exceptions, and then replied thereto by general denial. The venue of the cause was changed, upon appellee's application, to the Marshall Circuit Court, and a trial by jury resulted in a general verdict for appellee.

The assignment of errors challenges the decision of the lower court (1) in overruling appellant's demurrer to appellee's exceptions to the appraisement; and (2) in overruling appellant's motion for a new trial.

The statutes authorizing this proceeding are as follows: "Section 6006. Whenever, in the opinion * * * of the township trustee of any township in this State, it shall be considered necessary to purchase any real estate on which to build a schoolhouse, or for any other purpose connected therewith, such township trustee * * * may file a petition in the circuit court of said county, asking for the appointment of appraisers to appraise and assess the value of said real estate. Section 6007. Upon said petition being filed (the owner or owners of said real estate having had ten days' notice of the pendency thereof), the court shall appoint three freeholders, resident in * * * said township where said real estate is situate, to appraise and assess the value thereof. Section 6008. Said appraisers, before making said assessment and appraisement, shall take an oath before the clerk of said court to make a fair, true and honest appraisement of said real estate; and shall then proceed to examine said real estate, hear such evidence as they may consider necessary, and make report of their appraisement within five days after their appointment. Upon said report being filed, the owner or owners of said real estate may except to the same for any cause, and a trial thereon may be had in said court. When the value of said real estate is finally determined in said court, the township trustee * * * may pay to the clerk of said court, for the use of the owner of said real estate, the amount so determined, and, upon payment thereof, the title to said real estate shall vest in said school corporation for said purpose."

Appellee's exceptions to the appraisement are all embraced in a single paragraph. Much that is set forth therein is irrelevant and surplusage, and has no proper place in exceptions to an appraisement of this character. It is charged, however, "that the award of damages by said appraisers is erroneous, in this: that the valuation fixed upon said land is too small, and, instead of being $ 325, should have been at least $ 1,000, which is a reasonable value for the same, located as it is." This allegation in itself constitutes a sufficient exception to the appraisement, and justified the court in overruling appellant's demurrer for want of facts.

Appellant's motion for a new trial embraces the general grounds that the verdict is not sustained by sufficient evidence and is contrary to law, as well as special causes relating to the admission of evidence and to instructions to the jury. The special causes assigned in the motion for a new trial are not set forth in appellant's brief as required by the rules of this court, but a consideration of the sufficiency of the evidence to sustain the verdict will practically dispose of all questions in controversy. Appellee's theory, as advanced in his exceptions to the appraisement, and supported by his evidence and instructions tendered, and advocated upon appeal, is that the proposed appropriation of land was not intended for school purposes, but that the trustee, under color of his office, was acting from prejudice and personal interest, if not corruptly. Appellant's contention was and is that in proceedings to appropriate lands for school purposes the trustee acts upon his own discretion, and that his action can not be questioned or reviewed, except by an appeal to the county superintendent. The jury adopted appellee's theory, returned a general verdict in his favor, and thereby defeated the proposed appropriation of land; and the question now is, can this verdict be sustained?

The right to appropriate private property to public uses lies dormant in the State until legislative action is had, pointing out the occasions, the modes, conditions and agencies for its appropriation. When property is needed for a district schoolhouse, or for other school purposes connected therewith, it is proper that the district should appropriate it, and the State has accordingly delegated to the township trustee the exercise of the power of eminent domain for this special purpose. When the right of eminent domain is specially granted in such a case, no question of power arises, the taking is by the public, the use is by the public, and the benefit to accrue therefrom is shared in greater or less degree by the whole public. People, ex rel., v. Smith (1860), 21 N.Y. 595; Ford v. Chicago, etc., R. Co. (1861), 14 Wis. 663, *610, 80 Am. Dec. 791; Matter of Albany Street (1834), 11 Wend. 149, 25 Am. Dec. 619.

The authority to determine in any case whether it is necessary or expedient to permit the exercise of the power of eminent domain, when not prohibited by the Constitution, rests with the legislative department of the State; and the propriety of taking private property for public use is not a judicial question, but one of political sovereignty, and a hearing upon the facts as to such propriety or necessity is not required. Varick v. Smith (1835), 5 Paige Ch. *137, 28 Am. Dec. 417; Aldridge v. Tuscumbia, etc., R. Co. (1832), 2 Stew. & P. 199, 23 Am. Dec. 307; Ford v. Chicago, etc., R. Co., supra; City of Dallas v. Hallock (1904), 44 Ore. 246, 75 P. 204; Zircle v. Southern R. Co. (1903), 102 Va. 17, 45 S.E. 802; Consumers' Gas Trust Co. v. Harless (1892), 131 Ind. 446, 15 L.R.A. 505, 29 N.E. 1062; Water-Works Co. v. Burkhart (1872), 41 Ind. 364.

In all cases when it is deemed proper to delegate to individuals or to a corporation the power to appropriate property, it is competent to delegate the authority to decide upon the necessity or expediency for the taking, without submitting the matter to a court or jury. People, ex rel., v Smith, supra; Lynch v. Forbes (1894), 161 Mass. 302, 37 N.E. 437, 42 Am. St. Rep. 402; Holt v. City Council (1879), 127 Mass. 408; Boom Co. v. Patterson (1878), 98 U.S. 403, 25 L.Ed. 206; Palmer v. Harris County (1902), 29 Tex. Civ. App. 340, 69 S.W. 229; Atlantic, etc., R. Co. v. Penny (1904), 119 Ga. 479, 46 S.E. 665; ...