Sexauer v. Star Milling Company
| Decision Date | 14 January 1910 |
| Docket Number | 21,563 |
| Citation | 90 N.E. 474,173 Ind. 342 |
| Parties | Sexauer et al. v. Star Milling Company |
| Court | Indiana Supreme Court |
From Lagrange Circuit Court; James S. Dodge, Judge.
Action by the Star Milling Company against Solomon Sexauer and others. From a judgment for plaintiff, defendants appeal.
Affirmed.
Otis L Ballou, William H. Duff, Francis D. Merritt and Miller, Drake & Hubbell, for appellants.
Thomas R. Marshall, Hanan & Ganiard and Hile & Baker, for appellee.
This is an appeal from an interlocutory order appointing appraisers to assess the damages resulting to appellants' lands from the raising of a mill-dam. 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 is the owner of a twenty-two-acre tract of land in Lagrange 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 tail-race, all of which is known as the Star mill property, and is situate on the banks of a permanent watercourse known as Fawn river; that appellee was organized as a corporation for the purpose, among others named, of grinding and manufacturing 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 watercourse, and is not equipped for operation by any other power; that the tail-race 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, 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, 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, as in no other way can appellee 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, six inches of water at the existing turbines of said mill, which are now set in concrete; that appellee seeks to take real estate, owned by appellants, and situate in Lagrange county, Indiana; that appellee intends to use the lands sought to be taken for the purpose of overflowage; 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 alleged 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 reasons (1) that no appeal was taken from the order overruling appellants' objections, but only from the order appointing appraisers, (2) that appellants have not complied with rule three 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 appraisers 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." § 933 Burns 1908, Acts 1905, p. 59, § 5. The statute commands the court, upon the overruling of objections to appoint appraisers, as provided for in the act provided it 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." § 932 Burns 1908, Acts 1905, p. 59, § 4. 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 appellant.
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 three of this court, 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, so as 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. § 930 Burns 1908, Acts 1905, p. 59, § 2; Vandalia Coal Co. v. Indianapolis, etc., R. Co. (1907), 168 Ind. 144, 79 N.E. 1082; Southern Ind. R. Co. v. Indianapolis, etc., R. Co. (1907), 168 Ind. 360, 13 L.R.A. (N.S.) 197, 81 N.E. 65.
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: § 927 Burns 1908, § 883 R. S. 1881. This statute is found in the revision of 1852 (2 R. S. 1852, p. 188), 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. § 911 Burns 1901, § 899 R. S. 1881; Wright v. Pugh (1861), 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. 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 (1886), 106 Ind. 29, 32, 5 N.E. 761; Heick v. Voight (1887), 110 Ind. 279, 285, 11 N.E. 306; Mull v. Indianapolis, etc., Traction Co. (1907), 169 Ind. 214, 81 N.E. 657; Mills, Eminent Domain (2d ed.), § 10; 1 Lewis, Eminent Domain (3d ed.), §§ 251, 256, 263, 265.
To make a use public in the sense in which that term is used in this connection, it is not necessary that the whole community or any large portion thereof may actually participate in it, but only that a right to its enjoyment exist in the general public. If a use is public in this 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., Traction Co., supra; Richland School Tp. v. Overmyer (1905), 164 Ind. 382, 73 N.E. 811; Ross v. Davis (1884), 97 Ind. 79, 83.
An early territorial law prescribed the toll to be taken by water- wind- and...
To continue reading
Request your trial