Schuh v. State

• Decision Date: 08 November 1968
• Docket Number: No. 1167,1167
• Parties: Harry SCHUH, Appellant, v. STATE of Indiana, Appellee. S 133.
• Court: Indiana Supreme Court

Page 362

241 N.E.2d 362

251 Ind. 403

Harry SCHUH, Appellant, v. STATE of Indiana, Appellee.

No. 1167 S 133.

Supreme Court of Indiana.

Nov. 8, 1968.

Andrew Jacobs, Sr., Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Robert F. Hassett, Deputy Atty. Gen., for appellee.

HUNTER, Judge.

Appellant brought this inverse condemnation action to recover damages from the State of Indiana for an alleged taking of his property for highway purposes without compensation. Ind.Ann.Stat. § 3--1711 (1968 Repl.) authorizes any person having an interest in land which has been taken for any public use without having first been appropriated according to the eminent domain statutes to bring an action to have damages assessed as provided by those statutes.

Appellant's complaint alleges the following occurrences: The State of Indiana, in order to widen a highway, needed to appropriate a strip of land five feet in depth on the southernmost edge of appellant's property. The widening of the highway, as proposed by the state, would cause one of appellant's buildings to be situated closer to the highway than ordinarily permitted by local zoning ordinances. Appraisers for the state assured appellant that the building would not have to be razed, and in reliance on these assurances, appellant conveyed the right-of-way to the state for $16,598. Subsequently, the authorities responsible for the enforcement of the Marion County Zoning Ordinances required appellant to tear down this building which he did at his own expense. Appellant contends that the grant of the right-of-way, due to a mutual mistake between the parties, did not include the damages resulting from the razing of the building, and he prays that the court cause damages to be assessed according to the laws of Indiana.

Appellee filed objections to the appointment of appraisers denying that the potential zoning violation had been discussed or that a mutual mistake had been made in arriving at the consideration for the original conveyance and further denying that appellant had been required to raze the building in question. In the objections appellee also contended that the effect of the zoning ordinances and the consequential razing of the building did not constitute a taking of a property right for which compensable damages can be awarded.

After a hearing on the issues thus presented, the court found for appellee on its objections and against appellant on his complaint and entered judgment and costs against appellant. Appellant filed a motion for a new trial on two grounds:

'(1) That the decision of the court is not sustained by sufficient evidence.

(2) That the decision of the court is contrary to law.'

For a reason not presented by the record, the court made no response to this motion for over two and one-half years. Finally, the motion for a new trial was overruled; this is the only error assigned by appellant.

At the hearing to support the allegations in his complaint, appellant and his nephew, sister-in-law, daughter, and son-in-law (all adjacent neighbors) testified that the negotiations leading to the original conveyance of the right-of-way did include discussions as to whether the zoning laws would require the building to be razed. Appellant testified that two appraisers, who were stipulated to be employees of the state, advised him that the building would not have to be razed. Appellant introduced the Marion County Zoning Ordinances into evidence; these ordinances would make the building's proximity to the road a violation absent a zoning variance. Appellant testified that he applied for a building permit to construct a new residence and that the permit was denied by the building commissioner until appellant agreed to tear down or move the building here in question. Appellant introduced into evidence the application for a building permit, the written agreement to tear down or move the building, and the resulting permit issued by the building commissioner. Appellant further testified that, in accordance with the agreement he was required to execute, he did raze the building at his own expense. The state presented no evidence at this hearing.

Appellee asserts that appellant cannot question a negative verdict on the ground of insufficient evidence since it was the appellant in the trial court that had the burden to establish each material allegation by sufficient evidence. Cf. Kilmer v. Galbreth (1966), Ind.App., 218 N.E.2d 361. We agree that it would be inappropriate to allow a plaintiff to question the sufficiency of the evidence in support of a defendant's verdict, but it is proper to question whether such a verdict is contrary to law. Where, as in the case at bar, the appellant has included in his grounds for a new trial that the verdict is contrary to law, the court 'must consider whether or not the evidence including all reasonable inferences to be deducted therefrom would lead to a conclusion contrary to that of the trial court.' Calvert v. London (1965), Ind.App., 210 N.E.2d 376, 377. See also, Mackey v. Andrews (1961), 131 Ind.App. 576, 171 N.E.2d 707, 709.

Accordingly, we find that, by a clear preponderance of the evidence, appellan...