State v. Ahaus
| Decision Date | 02 November 1945 |
| Docket Number | 28110. |
| Citation | 63 N.E.2d 199,223 Ind. 629 |
| Parties | STATE v. AHAUS et al. |
| Court | Indiana Supreme Court |
Appeal from Dearborn Circuit Court; G. Edward Johnston, Special judge.
James A. Emmert, Atty. Gen., and Connor D. Ross, Deputy Atty. Gen for appellant.
Charles A. Lowe and William M. Turner, both of Lawrenceburg, for appellee.
Appellant on October 9, 1940, filed its complaint for condemnation of certain real estate of appellees. This land was sought for the purpose of widening, and in certain places, the changing of the right of way of State Highway No. 56 which was being improved by the State Highway Commission and which highway ran through the farm of the appellees. To the award of the appraisers, appellees excepted and upon trial by jury a verdict was returned in favor of the appellees in the sum of $2,750 with interest at 6% from October 9 1940, upon which judgment was rendered in the sum of $3,410 from which this appeal is taken.
Appellant assigns as error that the court erred in overruling its motion for a new trial. Grounds for said motion are; first that the court erred in giving at the request of the appellees one instruction; second, and third, the giving on its own motion of two instructions; fourth, the refusal of the court to give fourteen instructions tendered by the appellants; fifth, error in the assessment of the amount of recovery in that the amount is too large: and finally, sixth, that the verdict is not sustained by sufficient evidence.
The facts in this case show that the appropriation involved the widening, and in places, the changing of the right of way of an existing road, which said road ran in a generally northerly and southerly direction bearing to the west from the southeast; and that it divided appellees' farm approximately in halves; that a great portion of the east half of said farm was a hillside sloping westward towards said road; that the natural flow of surface water from said hillside flowed westward, and that at one point on said road said surface water had cut a gully in the side of a hill causing portions of said surface water to pour in a body onto said right of way. There is no contention that this gully was a natural water course. The evidence also shows that said highway which was widened and changed was improved; that the grade was changed by such improvement, and that the surface water from said improvement and from the land to the east side of said highway was diverted due to said improvement, but that no surface water was collected by the appellant either from said highway or from appellees' farm other than as above indicated.
The record shows that the appellees tendered one instruction which was given by the court as follows:
The plaintiff's written objections to this instruction which were timely made are as follows: 'The plaintiff, State of Indiana, at the close of the evidence and before the beginning of the argument, objects and excepts to the giving, by the Court, as part of its instructions, defendants' tendered instruction No. 1, for the reason that the evidence shows that all the water collected in the ditch mentioned in the instruction flows from the lands of the defendants in this case and the evidence further shows that water flows down from a hillside on the east side of the road in question and that the water at times flowed over the highway, that such condition of such water flowing over the adjoining lands of the defendants, and the discharge thereof on the highway in question was an illegal act on the part of the defendants, landowners, and that the authorities in charge of the highway in question had the right to take said water, by means of a drainage structure, beneath the highway to permit its flow into the natural course on the defendants' adjoining lands on the west side of the road in question; that the instruction also cites authorities at the close and is therefore improper.'
In considering this instruction it must be remembered that this is an action to condemn real estate for the widening of the right of way of an existing highway in places, and for the entire right of way in other places, and what is done is not merely the change of grade of an existing highway. Furthermore this is not an action sounding in tort. Appellant in making its objections to this instruction has not had these facts in mind.
'The general rules as to the measure of damages, where all or a part of a tract of land is taken for widening a highway, are the same as in other cases where property is taken or damaged for a public use.' 18 Am.Jur. 920, Eminent Domain, § 281. The measure of damages in this case is fully set out and provided for by § 3-1706, Burns' 1933, Supp., Sec. 14066, Baldwin's 1935 Supp.
In arriving at the amount of damages in this case every element of damage which will naturally and ordinarily result from such taking may be considered. 'The measure of damages must not be confounded with the elements of damage. In the case of Pittsburgh, etc., R. Co. v. McCloskey, 1885, 110 Pa. 436, 1 A. 555, involving an appropriation for a railroad, the court very concisely covered the subject in the following paragraph: 'The inconvenience, arising from a division of the property, or from increased difficulty of access, the burden of increased fencing, the ordinary danger from accidental fires to the fences, fields, or farm buildings, not resulting from negligence, and generally all such matters as, owing to the particular location of the road, may affect the convenient use and future enjoyment of the property, are proper matters for consideration.'' Glendenning v. Stahley, 1910, 173 Ind. 674, 682, 91 N.E. 234, 237.
This being a condemnation action, clearly this was the proper and only time to show as a particular element of damage, that the improvement did cause surface water to be precipitated onto the remaining land. 'The rule in condemnation proceedings is that all damages, present or prospective, that are the natural or reasonable incident of the improvement to be made or work to be constructed, not including such as may arise from the negligence, or unskillfulness, or from the wrongful act of those engaged in the work, must be assessed.' Chicago & Indiana Coal Railway Co. v. Hunter et al., 1890, 128 Ind. 213, 220, 27 N.E. 477, 479.
Although this instruction seems to have been drawn on the theory of the accumulation of surface water and of the unlawful diversion of it onto land of another, yet the same has not harmed the plaintiff in this case, as the changing of the flow of surface water could be considered as an element...
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State v. Franciscan All.
...Supreme Court decision, State v. Ahaus, 63 N.E.2d 199, 201 (Ind. 1945). But our Supreme Court had already rejected the applicability of Ahaus to a case involving an impaired right to access land. Ensley, 164 N.E.2d at 349 (emphasizing that Ahaus involved "interference in the use of appellee......