State v. Church of Nazarene of Logansport, 678S112

• Docket Nº: No. 678S112
• Citation: 377 N.E.2d 607, 268 Ind. 523
• Case Date: June 16, 1978
• Court: Supreme Court of Indiana

Page 607

377 N.E.2d 607 268 Ind. 523 STATE of Indiana, Appellant (Plaintiff below),
v.
The CHURCH OF the NAZARENE OF LOGANSPORT, Logansport Savings
& Loan Assoc. of Logansport, Auditor of Cass
County and Treasurer of Cass County,
Appellee(Defendant below). No. 678S112. Supreme Court of Indiana. June 16, 1978.

[268 Ind. 524] Theodore L. Sendak, Atty. Gen. of Indiana, Anthony J. Metz, III, Deputy Atty. Gen., Indianapolis, for appellant.

Roger K. Claudon, Conover, Claudon & Billings, Valparaiso, Frederick Sabatini, Hanna, Small, Sabatini & Becker, Logansport,

Page 608

for appellee the Church of the Nazarene of Logansport. ON PETITION TO TRANSFER

PRENTICE, Justice.

This matter is before us upon the petition of the appellant (State of Indiana) for transfer, following the decision and opinion of the Court of Appeals, First District,[268 Ind. 525] which appears at 354 N.E.2d 320. The Court of Appeals reversed the trial court and remanded the cause with an order for remittitur by the defendant and a new trial in the event the defendant should elect not to make such remittitur.

We hold that the Court of Appeals was correct in its determination of error but that its order of remittitur, under the circumstances of this case, contravenes our ruling in Parkison, Treasurer v. Thompson (1905), 164 Ind. 609, 73 N.E. 109, and is in conflict with Wood v. Pague (1937), 103 Ind.App. 577, 5 N.E.2d 1011. Accordingly, transfer is granted, and the decision and opinion of the Court of Appeals, First District, is now ordered vacated.

Upon the issue controlling our decision, we adopt the opinion of the Court of Appeals and the statement of facts, as authored by Judge Lybrook:

"The State of Indiana, appellant-plaintiff, brings this appeal following a jury verdict in the sum of $45,000 in favor of the Church of the Nazarene of Logansport, defendant-appellee. This action arose from a partial taking, through condemnation proceedings, of land owned and occupied by the Church.

"The facts most favorable to the appellee reveal that the Church was located on the corner of Lynas and Clinton Streets in the City of Logansport and consisted of a stone and masonry structure erected in 1963. Prior to the take the building sat on 1.652 acres of ground. In order to construct U.S. 35 by-pass around the City of Logansport, the State appropriated .3847 acres of land by condemnation proceedings. The majority of the take was along the southern border of the Church's property, but a narrow strip was along the western border of the property which abutted Lynas Street. The church building itself was not touched.

"Extensive testimony concerning the Church's beliefs in connection with its future building plans was admitted into evidence over State's objections. The State's Motion in Limine, which sought to exclude evidence of specific contemplated future use and damages based on those uses, was denied prior to trial. Much of the evidence presented as to the value of the property taken was given by R. H. Hunnings and Delores Wade, both real estate experts who testified on behalf of the Church.

[268 Ind. 526] "The State presents the following issues for our review:

"(1) Was the proper measure of damages utilized in determining the amount of the verdict.

"(2) Was reversible error committed by overruling the State's Motion in Limine.

"(3) Was the verdict excessive and contrary to the evidence in light of the evidence presented at trial.

"I.

"(1) It is well established in Indiana that the basic measure of damages in eminent domain cases is the fair market value of the property at the time of the take. IC 1971, 32-11-1-6 (Burns Code Ed.); State v. Ahaus (1945), 223 Ind. 629, 63 N.E.2d 199; Alberson Cemetery Association v. Fuhrer (1923), 192 Ind. 606, 137 N.E. 545. It is mandated that the owner of property taken by the State must be justly compensated. Indiana State Constitution, Art. I, § 21.

"(2) The case at hand cannot be disposed of by the traditional fair market value measure of damages alone. The land taken was a portion of a larger tract on which the church building was located. A small strip was removed from both the south and west sides of the tract, thus reducing the size of the remainder on which the building now rests. In order for the Church to be justly compensated,

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the State must respond in damages for not only the market value of the strip of land which was appropriated, but also for damage resulting to the residue of the property owned by the Church.

"(3) In order for severance damages to be assessed, in a case such as the one before us, three basic conditions were specified in the case of State of Indiana v. Heslar, Extrix. (1971), 257 Ind. 307, 274 N.E.2d 261, where the court held there must be simultaneous unity of title (Ownership), unity of use and contiguity. The Church in the case at bar clearly meets all three prerequisites for an award of severance damages.

"(4) The correct rationale for severance damages has been pronounced by Judge Kiley, in the case of United States v. 105.40 Acres of Land, etc., Porter Cty., Ind. (7th Cir. 1972), 471 F.2d 207, where he aptly stated:

" 'The essence of severance damages is the loss in value to the "remainder tract" by reason of a partial taking of land. Sharp v. United States, 191 U.S. 341, 24 S.Ct. 114, [268 Ind. 527] 48 L.Ed. 211 (1903); Jahr, Eminent Domain § 96 (1953). This is predicated on the enhanced value of the "remainder tract" because of its relationship to the whole prior to the taking.'

It is clear from the evidence produced at trial that the market value of the residue property was reduced by the taking.

"The evidence most vehemently objected to by the State was given by R. H. Hunnings, an expert witness who testified on behalf of the Church. Hunnings explained in detail his opinion as to the lessening of market value, caused not only from the take itself, but also from the damages resulting to the church building, from altering the terrain and elevation of surrounding property, and affecting the Church's ingress and egress to its premises. Hunnings also testified concerning the specific tenets of the Nazarene Church and how the condemnation adversely affected the carrying out of those beliefs.

"(5) The State appropriately argues that this evidence should not have been admitted as it related to an intended specific future use of the property by the Church (expansion of facilities and construction of a parsonage). The State correctly expounds the rule of law that intended future uses are not compensable in eminent domain proceedings. State of Indiana v. City of Terre Haute, a Municipal Corp. (1968), 250 Ind. 613, 238 N.E.2d 459. The State has overlooked that a portion of this information is necessary to determine the diminution of market value to the residue as a result of the take and the construction of the highway.

"(6) The proper method of assessing severance damages in Indiana has been expressed as being the difference between the market value of the entire tract and the market value of the residue following the partial taking. Glendenning v. Stahley (1910), 173 Ind. 674, 91 N.E. 234; Stephenson v. State (1963) 244 Ind. 452, 193 N.E.2d 369. In order to arrive at this figure, it was necessary for Hunnings to...