State v. City of Terre Haute

Citation250 Ind. 613,238 N.E.2d 459
Decision Date01 July 1968
Docket NumberNo. 31003,31003
PartiesSTATE of Indiana, Appellant, v. CITY OF TERRE HAUTE, a municipal corporation, Appellee.
CourtSupreme Court of Indiana

John J. Dillon, Atty. Gen., Ronald S. Timmons, Charles J. Deiter, Deputy Attys. Gen., Indianapolis, for appellant.

Frank P. Crawford, City Atty., City of Terre Haute, Terre Haute, for appellee.

LEWIS, Chief Justice.

This is an appeal from the judgment of the Vigo Superior Court in a proceeding brought by the State of Indiana to appropriate two (2) parcels of real estate in which the City of Terre Haute had an interest for the purpose of constructing Interstate Highway I--70.

In 1946 the City of Terre Haute received a mandate from the State of Indiana to cease and desist from polluting the Wabash River. This required the City of Terre Haute to construct a sewage disposal system for the City's use. A Boston, Massachusetts, consulting engineering firm was retained and it commenced to study the situation with the original plans being developed by it in the period of 1951 to 1953.

On September 11, 1961, the State of Indiana filed this condemnation against the City of Terre Haute for a right-of-way over parts of two (2) tracts of land. One tract comprising 31.98 acres was owned outright by the City, and on the other tract of 7 1/2 acres, the City had a claimed option to purchase. These tracts were adjacent to one another and it was on these tracts that the City had planned to build its sewage disposal plant.

After several meetings between the Mayor of Terre Haute and the State Highway Commission in an attempt to select and agree on an alternate route, it was decided that the Highway, I--70, would be built as previously planned and that the site of the proposed sewage disposal plant must be moved to another near-by property.

Although no actual construction had begun on the project and the land remained unchanged, the condemnation was responsible for generating additional costs to the City of Terre Haute. In its plea for damages the City specifically alleged the following items:

A. As a result of the structure being moved to a different site the plans had to be revised which required the City of Terre Haute to pay out additional engineering fees.

B. A water main had to be extended approximately 2300 feet and at an increased diameter.

C. The new route of the water main was blocked by a bridge foundation for an I--70 overpass which necessitated two (2) forty-five degree bends in the main to go around the preliminary bridge foundation at additional cost.

D. In laying the water main along the new route, the City of Terre Haute had to obtain permits from the State Highway Department and had to pay the required fees.

E. The total value of the land actually taken.

Evidence relevant to these items of damages was admitted by the Trial Court over valid objections by opposing counsel. The jury returned a verdict for the City of Terre Haute in the sum of $94,330. From this verdict the State of Indiana appeals to this Court raising the following errors:

1. That the Trial Court erroneously redocketed the case in the Vigo Circuit Court after having granted the State of Indiana a change of venue.

2. The Trial Court allowed evidence to be considered by the jury that was inadmissible under the law of eminent domain and outside the scope of the issues of the lawsuit; in other words, evidence as to damages which are not compensable under the Eminent Domain Statute.

Concerning appellant's second assigned error, the pertinent Indiana Statute, Burns' Indiana Stat., Anno., (1968 Repl.), § 3--1706, reads as follows:

'Such appraisers shall take an oath that they have no interest in the matter and that they will honestly and impartially make such assessment. After being so sworn, the judge shall instruct said appraisers as to their duties as such and the measure of the damages and benefits if any they allow.

They shall determine and report:

First. The fair market value of each parcel of property sought to be appropriated, and the value of each separate estate or interest therein;

Second. The fair market value of all improvements pertaining to the realty, if any, on the portion of the real estate to be condemned;

Third. The damages, if any, to the residue of the land of such owner or owners to be caused by taking out the part sought to be appropriated;

Fourth. Such other damages, if any, as will result to any persons or corporation from the construction of the improvements in the manner proposed by the plaintiff.

Fifth. In case the land is sought to be taken by the state or by a county, for a public highway or by a municipal corporation for a public use that confers benefits on any lands of the owner, the report shall also state the benefits which will accrue to each parcel of property, set opposite each description of the same, whether described in the complaint or not. In estimating the damages specified in the foregoing first, second, third and fourth clauses, no deduction shall be made for any benefits that may result from such improvement, excepting in case of a condemnation by the state or by a county, for a public highway or by a municipal corporation for public use, the benefits, if any assessed, shall be deducted from the amount of damage allowed, if any, under the foregoing third and fourth clauses; and the difference, if any, plus the damages allowed under the foregoing first and second clauses shall be the amount of the award, but in no case shall the damage awarded be less than the damages allowed under the foregoing first and second clauses. Upon the trial of exceptions to such award by either party a like measure of damages shall be followed. For the purpose of assessing compensation and damages, the right thereto shall be deemed to have accrued at the date of the service of the notice provided in section three (§ 3--1703), and its actual value, at that date, shall be the measure of compensation for all property to be actually taken and the basis of damages to property not actually taken but injuriously affected, except as to the damages stated in the fourth clause hereof.'

The problem now manifests itself: Which items of the alleged damages are compensable under the Indiana condemnation procedure? It is well settled in Indiana law that when land is taken which has a fair market value at the time of its appropriation, the measure of damages is the fair market value for which the land could be sold if the owner was willing to sell. If the land has a higher market value by reason of use or uses to which it may be adapted, but to which it has not been put, the owner is entitled to the greater value. State v. Tibbles (1954), 234 Ind. 47, 123 N.E.2d 170. On this the law is agreed; however, State v. Tibbles, supra, goes on to say that the fair market value of the land taken is all that may be recovered by the condemnee. Whether this is applicable in the case at bar is what we must now decide.

In State v. Ensley (1960), 240 Ind. 472, 164 N.E.2d 342, the condemnee had business property which abutted a thoroughfare; he sought damages for the land actually taken which was granted, but he also sought to receive compensation because a divider strip was constructed between lanes thereby affecting ingress and egress into his business establishment. This Court stated:

'Paragraph Fourth of § 3--1706, supra, of the Eminent Domain Act has broadened the common law conception of 'just compensation' and by implication has included other elements of condemnation besides the actual 'taking' of the physical property itself. However, the cases which have considered the application of paragraph Fourth of § 3--1706, supra, have inherent limitations which may be implied from the respective facts involved in each of them.'

Recovery was denied with this Court stating:

'In order to recover for the alleged impairment of their right of access appellees must suffer a particular private injury, and not merely an inconvenience or annoyance, even though it may be greater in degree than such as is suffered by the public generally. * * *'

From this case we may draw the conclusion that this Court will allow damages in addition to the fair market value of the land actually taken, but only where the facts in a particular case justify it.

In State v. Jordan (1966), Ind., 215 N.E.2d 32, a limited-access expressway was constructed which greatly hampered ingress and egress to the appellant's business parking lot. The parking lot was 'leased' from another party; however, this Court found that the agreement between the lessor and lessee was too vague to constitute a leasehold interest in the land. The Court made the following statement:

'It therefore follows that either some physical part of the real estate must be taken from the owner or lessor, or some substantial right attached to the use of the real estate taken before any basis for compensable damage may be obtained by an owner of real estate in an eminent domain proceeding. It must be special and peculiar to the real estate and not some general inconvenience suffered alike by the public.'

With the above statement in mind, the case of State v. Geiger & Peters, Inc. (1964), 245 Ind. 143, 196 N.E.2d 740, will be examined. The appellant owned a business which fronted on a limited-access expressway. The construction of the expressway greatly hampered the ingress and egress of his customers. This Court granted compensation saying:

'* * * Appellant has, by the erection of a fence and barricade and the construction of an embankment, cut appellees off from the highway known as Madison Avenue. Appellant cannot equate appellees' previous right of access to old Madison Avenue which led to the north and south through the entire city of Indianapolis, with access solely to the narrow dead-end service road which leads nowhere to the north and nowhere to the south except to Caven Street. Whether appellant calls the dead-end service...

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