Sexauer v. Star Milling Co.

• Citation: 173 Ind. 342,90 N.E. 474
• Decision Date: 14 January 1910
• Docket Number: No. 21,563.,21,563.
• Parties: SEXAUER et al. v. STAR MILLING CO.
• Court: Supreme Court of Indiana

173 Ind. 342

90 N.E. 474

SEXAUER et al.

v.STAR MILLING CO.

No. 21,563.

Supreme Court of Indiana.

Jan. 14, 1910.

Appeal from Circuit Court, La Grange County; James S. Dodge, Judge.

Action by the Star Milling Company against Solomon Sexauer and others. From an interlocutory order appointing appraisers to assess damages to defendants' lands from the raising of a milldam, defendants appeal. Affirmed.Miller, Drake & Hubbell, O. L. Ballou, and Merritt & Duff, for appellants. T. R. Marshall, Hanan & Ganiard, and Hile & Baker, for appellee.

MONTGOMERY, J.

This is an appeal from an interlocutory order appointing appraisers to assess the damages resulting to appellants' lands from the raising of a milldam. The complaint alleged substantially the following facts: That appellee is a corporation organized and doing business under and by virtue of the laws of Indiana, and the owner of a 22-acre tract of land in La Grange county, particularly described, with the privilege of erecting a dam three feet high, and the right to use and overflow water on certain lands as a tailrace, all of which is known as the Star Mill property, and is situate on the banks of a permanent water course known as “Fawn River.” That appellee was organized as a corporation among other purposes named to grind and manufacture all kinds of flour, meal, and feed from grain, “upon and by what is commonly known as the ‘toll system”’ and is the owner of a flour and feed mill situate upon the premises described and on the bank of said stream. That this mill is equipped with water turbines and appliances for operating the same by water power to be derived from said water course, and is not equipped for operation by any other power. That the tailrace described has for a number of years been dug and dredged out, so that with a dam so erected as to furnish a head of water at its turbines seven feet and six inches in depth the mill could be continuously operated, and without such a head of water the mill cannot be continuously operated. That in order to operate said mill it is necessary to construct a dam at the place where the present dam now is on appellee's premises and across said river to furnish a head of water at the present turbines of said mill seven feet and six inches in depth. That to secure such depth of water at the turbines it is necessary to construct a dam across Fawn river of the height particularly described; whereby and in no other way appellee can continuously operate said mill. That appellee is one of the corporations, which under the laws of this state has the right to exercise the power of eminent domain, and has entered upon appellants' lands for the purpose of examining and surveying the property and rights sought to be appropriated, and has made an effort to purchase, for the use described, such lands, easements, and other interests, but has not agreed and has been unable to agree with appellants as to the damages that would result to their lands and to them from the construction of said dam. That the use which appellee intends to make of the property and rights to be appropriated is to overflow said lands by means of the dam, so as to furnish a depth of seven feet and six inches of water at the existing turbines of said mill, which are now set in concrete. That appellee seeks to take the following real estate, situate in La Grange county, Ind., owned by appellants particularly described. That appellee intends and proposes to use the lands described as sought to be taken, for the purpose of overflowage; and that appellee has been unable to agree with any of appellants for the purchase of such lands and the right to overflow the same. The several appellants filed numerous objections to the complaint, which were overruled and exceptions thereto properly saved.

The principal controversy is presented by the assignment that the court erred in overruling appellants' fourth objection, which alleges that the complaint did not state facts sufficient to constitute a cause of action for the appropriation of the lands described. Appellees have on file a motion to dismiss this appeal for the reason (1) that no appeal was taken from the order overruling appellants' objections, but only from the order appointing appraisers; and (2) that appellants have not complied with rule 3 of this court relating to an index to the transcript. The statute, after providing for the filing of objections by defendants in condemnation proceedings, prescribes that, “if such objections are overruled, the court or judge shall appoint appraiser as provided for in this act; and, from such interlocutory order overruling such objections and appointing appraisers, such defendants, or any of them, may appeal.” Section 933, Burns' Ann. St. 1908. The statute commands the court, upon the overruling of objections to appoint appraisers, as provided for in the act; that is, provided he is “satisfied of the regularity of the proceedings, and the right of the plaintiff to exercise the power of eminent domain for the use sought.” Section 932, Burns' Ann. St. 1908. No appeal is authorized from the mere overruling of objections to the complaint, since such ruling might become harmless, if, for any reason, the court should refuse the appointment of appraisers. The appointment of appraisers is the efficient act which adjudicates finally the regularity of the prior proceedings and the power and right of the plaintiff to make the proposed appropriation of property. It is not necessary that an appeal be formally prayed both from the overruling of objections and the appointment of appraisers, but an interlocutory appeal taken from the order appointing appraisers may include and present for decision all prior adverse rulings to which exceptions have been duly saved by the appellants.

Appellants have prepared a full index to the record which constitutes the first four pages of the transcript, and appellees insist that this is not in compliance with rule 3 of this court (55 N. E. iv), which requires the preparation of an index “to form the first page of the transcript.” The plain purpose of this rule is to require the preparation of an adequate index, and to fix its position with reference to the other parts of the record, to facilitate the work of the court. The objection to the index in this case is excessively critical and without merit. The designation of a place for the index is in its nature directory, and noncompliance therewith would vest no substantive right in the adverse party. Other objections to the record have been removed by the return to a writ of certiorari, and the motion to dismiss the appeal is overruled. The complaint contains all the formal averments required by the statute prescribing the practice in condemnation proceedings, and must be held sufficient in this respect. Acts 1905, p. 60, c. 48, § 2 (section 930, Burns' Ann. St. 1908); Vandalia Coal Co. v. Indianapolis, etc., R. Co., 168 Ind. 144, 79 N. E. 1082;Southern Indiana R. Co. v. Indianapolis, etc., R. Co., 168 Ind. 360, 81 N. E. 65, 13 L. R. A. (N. S.) 197.

Appellants' paramount contention is that appellee is not vested with the power of eminent domain, and cannot appropriate the rights described for the purpose declared, because the same is not a public use. The statutory authority for the proceeding upon which appellee relies reads as follows: “A writ of assessment of damages may be had by application to the circuit or other proper court of the county where the damages to be assessed may be occasioned under the regulations and in the cases following: First. By any person owning the land on one side of a water course upon which he desires to erect a mill or other machinery to be propelled by water. *** Third. To assess the probable amount of damages to the lands, creek or spring of another, or the improvements thereon, by the overflow of water or otherwise, which may be occasioned by any milldam already erected or proposed to be erected.” Section 927, Burns' Ann. St. 1908. This statute is found in the Revision of 1852 (2 Rev. St. 1852, p. 188, § 684), and has been held to apply to mills already constructed as well as to those to be erected, and to authorize the writ of assessment of damages in every case, without exception, where the mill has been erected prior to an assessment. Section 911, Burns' Ann. St. 1901; Wright v. Pugh et al., 16 Ind. 106. The allegations of the complaint bring appellee within the provisions of the statute conferring the power of eminent domain to acquire such easements as are sought to be taken by this proceeding. The remaining question, then, is whether the proposed use for which the rights described are to be taken is a public one.

The question whether a particular use is public or private is a judicial question, and must be determined by the courts. A presumption exists in favor of the public character of a use declared by the Legislature to be public, but it is not conclusive upon the courts. Town of Rensselaer v. Leopold, 106 Ind. 29, 32, 5 N. E. 761;Heick v. Voight, 110 Ind. 279, 285, 11 N. E. 306;Mull v. Indianapolis, etc., Co., 169 Ind. 214, 220, 81 N. E. 657; Mill, Em. Dom. § 10; 1 Lewis, Em. Dom. §§ 158, 163, 170, 172. It is not necessary to make a use public in the sense in which that term is used in this connection - that the whole community or any large portion thereof may actually participate in it-but only that a right to its enjoyments exists in the general public. If a use is public in title sense, the courts will not be justified in refusing to acknowledge and sanction such public use merely because of an incidental private advantage. Mull v. Indianapolis, etc., T. Co., 109 Ind. 214, 220, 81 N. E. 657;Richland School Tp. v. Overmyer, 164 Ind. 382, 387, 73 N. E. 811;Ross v. Davis, 97 Ind. 79, 83. An early territorial law prescribed the toll to be taken by water, wind, and horse power gristmills, made the owners of mills accountable for the...