Schnull v. Indianapolis Union Ry. Co.

• Decision Date: 20 May 1921
• Docket Number: No. 23473.,23473.
• Citation: 190 Ind. 572,131 N.E. 51
• Parties: SCHNULL et al. v. INDIANAPOLIS UNION RY. CO.
• Court: Indiana Supreme Court

190 Ind. 572

131 N.E. 51

SCHNULL et al.

v.INDIANAPOLIS UNION RY. CO.

No. 23473.

Supreme Court of Indiana.

May 20, 1921.

Appeal from Circuit Court, Marion County; Louis B. Ewbank, Judge.

Proceedings by the Indianapolis Union Railway Company against Gustav A. Schnull and others to condemn lands. From the award of compensation, landowners appeal. Reversed, with instructions.Smith, Remster, Hornbrook & Smith and John G. Rauch, all of Indianapolis, for appellants.

Baker & Daniels, of Indianapolis, for appellee.

MYERS, J.

Appellee, as an Indiana corporation and engaged in operating the Belt Railroad and railroad union passenger station in the city of Indianapolis, commenced proceedings in the court below to condemn certain property belonging to appellants and required by it conformably to specifications and plans adopted for the elevation of railroad tracks in the city of Indianapolis. Appraisers were appointed who awarded to appellants compensation and damages in the sum of $22,520.80. Appellee immediately paid to the clerk of the court below the damages thus assessed, and on August 10, 1915, took possession of the property thus condemned. Within 10 days after the appraisers filed their report, appellants filed written exceptions thereto. Upon a trial before the court of the issues thus joined, the exceptions were sustained, and appellants' compensation and damages assessed at $26,200, with 6 per cent. interest per annum from August 10, 1915, to date of judgment, March 22, 1918, on the increase over the award of the appraisers, in all aggregating $26,778.86, for which judgment was accordingly entered. Thereupon appellee paid to the clerk $4,258.06, being the full amount of the increase, $3,679.20, and interest thereon. A motion to amend and modify the judgment to include interest on the entire award of $26,200 was overruled, and this ruling furnishes the basis for the only error here assigned.

Appellants insist that they were entitled to judgment in the amount of damages as found by the court, plus interest on that sum from the date appellee took possession of the property to the date judgment was entered. The effect of appellants' argument is that, while the payment of the appraisers' award gave appellee the right to immediate possession of the property condemned, yet it was bound to know that such appraisement did not conclusively determine the question of compensation for the property thus taken, for under the statute which gave appellee its asserted right, provision is made whereby either party aggrieved may, within 10 days after the filing of such assessment, file written exceptions thereto, and upon a trial thereof have the question of just compensation determined by the court de novo.

Upon the face of the proceedings before us, the situation of the parties-appellants and appellee-will at once attract attention, because of the seeming appearance that both have rested on their legal rights and with no chargeable default. We are thus brought to a consideration of the claims of each of these parties, measured by the law of eminent domain enacted by the Legislature of this state in 1905 (Burns' Ann. St. 1914, §§ 929-940).

[1][2] The briefs in this case contain some discussion concerning the provisions of a law that would or would not meet the requirements of our Constitution. However this may be, it is sufficient to say, the only constitutional inhibition in this state on the General Assembly's authority to enact laws for the taking of private property for public use, as in this case, is, that such property shall not be taken by law without just compensation first assessed and tendered. Const. Ind. art. 1, § 21; Consumers' Gas Trust Co. v. Harless, 131 Ind. 446, 29 N. E. 1062, 15 L. R. A. 505. Conforming to this constitutional provision, the Legislature had the right, and has prescribed the manner in which such just compensation shall be ascertained. Lake Erie, etc., R. Co. v. Kinsey, 87 Ind. 514. That act meets the constitutional requirement, in that it provides the procedure to be followed, reserves title to the owner until payment therefor is fully made, and by section 6 meets “just compensation” at time of notice of intended appropriation by requiring “actual value” of all property actually taken, and “actual value” as the basis of damages to the landowners' property not actually taken, but injuriously affected by such appropriation. Section 934, Burns' 1914; Smith v. Cleveland, etc., R. Co., 170 Ind. 382, 400, 81 N. E. 501.

Counsel for appellee insist, as we understand them, that the payment of the appraisers' award to the clerk of the court, as provided by section 7 of that act, gave appellee the right “to take possession of and hold the interest in the lands so appropriated” on the theory that prima facie actual value had been ascertained, but subject to review on appeal as of the date of the original notice.

In the instant case, appellants timely filed exceptions to the appraisers' award on the ground of failure to award actual value. By this means an appeal was taken to the circuit court, where the question of actual value or just compensation was tried de novo. Indianapolis Traction, etc., Co. v. Ripley, 175 Ind. 103, 93 N. E. 546;Swinney v. Ft. Wayne, etc., R. R. Co., 59 Ind. 205, 217;Indianapolis Traction, etc., Co. v. Dunn, 37 Ind. App. 248, 76 N. E. 269.

[3][4] Hence, while the payment made by appellee entitled it to possession of the land, yet such possession during the pendency of the appeal and until compliance with the orders and judgment of the court, gave it no greater right than that of a licensee. Lake Erie, etc., R. Co. v. Kinsey, supra; Terre Haute, etc., R. Co. v. Crawford, 100 Ind. 550, 557;Ft. Wayne, etc., Trac. Co. v. Ft. Wayne & W. R. Co., 16 L. R. A. (N. S.) 538, note; Indianapolis Trac., etc., Co. v. Dunn, supra. On the other hand, it is equally well settled that the exceptors were precluded from accepting the payment so made to the clerk if they would maintain their standing in court to prosecute their exceptions. Western Construction Co. v. Board, 178 Ind. 684, 690, 98 N. E. 347; Indianapolis Trac., etc., Co. v. Ripley, supra; Baltimore, etc., Ry. Co. v. Johnson, 84 Ind. 420.

[5] Looking to the question for decision and keeping in mind the common-law rule regarding interest, as well as the statute involved which makes no provision for an interest charge as such, still under the rule, that is certain which may be made certain, the statute does fix the time when compensation and damages shall accrue to the landowner and the amount he shall receive. These statutory provisions, while obviously directed to the appraisers, are nevertheless for the guidance of the court in its determination of the same question submitted to the appraisers. St. Louis, etc., Ry. Co. v. Fowler, 113 Mo. 458, 20 S. W. 1069. However, the court is not thus limited, for the statute expressly provides-section 8 (section 936)-that “the court may make such further orders, and render such findings and judgments as may seem just.” If this provision means anything, as applied to this case, the court had power to go further and make such orders and findings and render such judgment as upon the evidence would satisfy the constitutional guaranty of just compensation. For unless the court has suck power, our law of eminent domain is faulty and must be condemned as partly or wholly unconstitutional. Toledo, etc., Int. R. Co. v. Wilson, 44 Ind. App. 213, 86 N. E. 508, 88 N. E. 864.

If the interpretation of the language last above quoted may be regarded as recognizing a discretion in the trial court to make such further orders, findings, and judgment as is shown to be equitable and right, then the question of the abuse of that discretion is clearly and unmistakably presented by the record before us. The trial court prepared its orders, findings and judgment affirmatively showing no allowance or compensation to appellants for any loss they may have sustained during the pendency of the appeal by reason of appellee's exclusive possession of the property appropriated, other than interest on the difference between the amount reported by the appraisers and the amount adjudged by the court to be just compensation for the property taken and damages to the property not taken but injuriously affected. The precise question here presented is before this court for the first time. The parties to this proceeding were left to their own construction of the statute and the course they would choose to follow. Appellants refused to abide by the appraisers' award, and filed exceptions to the report, as the statute plainly gave them the right to do. They thereby in effect refused appellee's tender on the ground that the assessment so made and tendered was not “just compensation” for the property taken and that injuriously affected. Thus they presented two propositions to appellee, namely: Pay the amount of the appraisers' award to the clerk of the court and take possession of the property so appropriated, or...