Root v. State

• Decision Date: 31 October 1934
• Docket Number: 26037
• Citation: 192 N.E. 447,207 Ind. 312
• Parties: ROOT et al. v. STATE
• Court: Indiana Supreme Court

192 N.E. 447

207 Ind. 312

ROOT et al. v. STATE

No. 26037

Supreme Court of Indiana

October 31, 1934

1. EMINENT DOMAIN---Exercise of Power---By Agent of State---Legislative Authority.---Even though the power of eminent domain is inherent in the state, an agent of the state can exercise the power only when the legislature has conferred the necessary authority. p. 314.

2. EMINENT DOMAIN---Exercise of Power---By Agent of State---Legislative Authority.---The occasion, mode, and conditions upon which an agent of the state may exercise the power of eminent domain in behalf of the state are to be prescribed by the legislature. p. 314.

3. EMINENT DOMAIN---Exercise of Power---By Agent of State---Determination of Necessity.---The right of a state agency to exercise the power of eminent domain carries with it the exclusive right to determine the necessity for its exercise to accomplish an authorized purpose. p. 314.

4. EMINENT DOMAIN---Exercise of Power---By Agent of State---Judicial Interference.---While the courts may not review the necessity for the exercise of the power of eminent domain by a state agency for an authorized purpose, they may determine whether the proposed purpose is within the authority conferred by the legislature. p. 314.

5. EVIDENCE---Judicial Notice---Effect of Traffic Conditions on Highway Construction.---Court takes judicial notice that traffic conditions may require carrying one highway over another on viaduct for the safety and convenience of the public. p. 315.

6. EMINENT DOMAIN---Exercise of Power---By Agent of State---State Highway Commission.---A proposed condemnation of land by the State Highway Commission for the purpose of constructing a viaduct at an intersection of highways to carry one highway over the other, held an authorized purpose within the legislative grant of the power of eminent domain p. 315.

7. EMINENT DOMAIN---Proceedings---Issues and Proof---Effort to Purchase.---While a complaint for condemnation must allege that a good faith effort to purchase the land has been made and failed where there were no objections filed on the ground that such effort was not made the allegation was taken as admitted without evidence. p. 315.

8. APPEAL---Review---Harmless Error---Admission of Evidence.---In eminent domain proceedings by the State Highway Commission, where the only issue was whether the exercise of power was authorized for the proposed purpose admission in evidence of a resolution of the commission was held harmless. p. 320.

Proceedings by the State of Indiana against Clayton D. Root and others to condemn land for state highway purposes. From a judgment for plaintiff, defendants appealed. Affirmed.

George E. Hershman and Ray C. Hedman, both of Crown Point, for appellants.

James M. Ogden, Atty. Gen., and Connor D. Ross, Asst. Atty. Gen for the State.

OPINION

TREANOR, Judge.

This is an appeal from a judgment of condemnation of certain of appellant's land for the improvement of a state highway. The land sought to be condemned was at the proposed intersection of two state highways, and at such intersection it was proposed to construct a viaduct or bridge to carry one highway over the other, so that said highways would not cross each other at grade. At the trial below, and upon appeal, the objection is urged that 'the appellee, by and through its State Highway Commission, had no power, authority or jurisdiction to condemn appellant's property in order to construct a grade separation of one public highway over another.' Appellee insists that appellants' objection, directed at the right of the highway commission to separate grades of two highways under its control, constitutes an attack upon the method or manner of the construction of highways; that 'the power of eminent domain has nothing to do with the method or manner of construction; that power is necessary only to procure a place to put the structure or procure materials for its construction or something incidental to its use.'

Even though the power of eminent domain is inherent in the state, an agent of the state can exercise the power only when the Legislature has conferred the necessary authority. The occasion, mode, and conditions upon which an agent of the state may exercise the power of eminent domain in behalf of the state are to be prescribed by the Legislature. Richland School Township v. Overmyer (1905) 164 Ind. 382, 73 N.E. 811. The delegation to a state agency of the right to exercise the power of eminent domain carries with it the authority to determine the necessity for its exercise to accomplish an authorized purpose, and the question of such necessity is not for judicial determination. But a judicial question will be presented when it is insisted that the purpose for which the agent seeks to exercise the power of eminent domain is unauthorized. Consequently, while the courts will not review a decision of the highway commission as to the necessity of separating the grades of two intersecting state highways, the courts will examine the statutory grant of authority to determine whether there is included therein the authority to exercise the power of eminent domain for the purpose of acquiring land deemed necessary in the separation of such grades.

The authority to exercise the power of eminent domain is conferred upon the state highway commission by section 24 of chapter 53, Acts 1919, section 8292, Burns' Ann. St. Ind. 1926. ^[1] That section provides, in part, that 'the state highway commission is hereby endowed with the right of eminent domain, in so far as the same may be necessary or proper for the carrying out of the provisions of this act.' From an examination of the provisions of the act it is apparent that the General Assembly contemplated and undertook to authorize changes in the line and location of highways which, in the opinion of the highway commission, would 'promote public convenience and safety.'

This court will take judicial notice that under present traffic conditions the safety and convenience of the public may require that in highway construction one highway be carried over another on a viaduct, and thus avoid an intersection on grade with the hazards connected therewith. This is simply a construction problem, as much so as deciding whether to build a road along a ridge or to carry it across a valley on a viaduct. The objection that the highway commission was without power to exercise the right of eminent domain to obtain land for use in constructing a viaduct to carry one road over another and to establish traffic connections between the two roads is without merit.

The court's finding and judgment of condemnation is questioned by appellants by their second proposition under 'Points and Authorities,' on account of the absence of evidence that the highway commission 'was unable to agree with the owners of the land touching the damages sustained or touching the purchase price of the land.'

It is provided in section 8292, Burns' 1926, that, 'if the state highway commission shall be unable to agree with the owner of the land or right * * * touching the damages sustained by such owner, or touching the purchase-price of the land or right, the state highway commission may proceed, in the name of the State of Indiana, in the exercise of the right of eminent domain.' The Eminent Domain Act (section 7680, Burns' 1926, Acts 1905, c. 48, p. 59, § 1) provides that, 'before proceeding to condemn, such person, corporation or other body * * * shall make an effort to purchase for the use intended such lands.' An allegation of inability to agree is required by section 7681, Burns' 1926. Appellants' contention is as follows: 'As a condition precedent to institute this proceedings, appellee was required to allege and prove by competent evidence that the Highway Commission was unable to agree with the owners of the land touching the damages sustained or touching the purchase price of the land. Appellee alleged such facts in its complaint, but there was no evidence to prove such facts, and the Court was not warranted in entering judgment condemning and appropriating appellants' property.' (Appellants' Brief, p. 28.)

Appellant the Commercial Bank filed a separate answer which cannot be considered an objection. It amounts to a petition setting up the interest of the Commercial Bank as trustee-mortgagee, and prays that its interest be protected by the final order of the court. This answer recites 'that the plaintiff herein never made any offer or attempt to settle with the defendant The Commercial Bank, as Trustee,' but there is no objection to the proceedings on that ground. Appellants Clayton D. Root, Grace Hill Root, and William H. Morches 'each separately and severally and all jointly' objected to the proceedings, but no objection...