State v. Curtis
| Decision Date | 29 March 1961 |
| Docket Number | No. 29955,29955 |
| Citation | 173 N.E.2d 652,241 Ind. 507 |
| Parties | STATE of Indiana, Appellant, v. Etta W. CURTIS, Appellee. |
| Court | Indiana Supreme Court |
Edwin K. Steers, Atty. Gen., Richard M. Givan, Asst. Atty. Gen., Joe T. Adkins, Deputy Atty. Gen., for appellant.
John A. Kendall, Danville, Rochford & Blackwell, Indianapolis, for appellee.
This is an appeal from the granting of an injunction against the State (Highway Department), prohibiting the removal or destruction of certain buildings and improvements on land sought to be taken for highway purposes in a condemnation action against the appellee-owner, Etta W. Curtis.
We gather from the facts presented that the State brought a condemnation action against the appellee-owner of certain farm land for the purpose of constructing a state highway. The complaint for that purpose described a portion thereof as 'permanent right-of-way' and another portion as 'temporary right-of-way'. In addition it appears that the exact metes and bounds or description of part of the property taken was not tied down sufficiently so that it could be determined whether or not the line between the 'temporary' right-of-way and the permanent right-of-way ran through certain buildings and improvements on the appellee-owner's property.
There is no dispute, however, that there is a house, barn or shed, a crib, a garage, a well and some waterworks apparatus that are located on what is designated as a 'temporary right-of-way'. The evidence shows that the State had advertised for sale the garage, the barn and the house located on the 'temporary right-of-way'. Appellee, seeking to prevent the State from selling or disposing of the buildings in question, filed her petition for an injunction on the date set for the sale of the buildings.
Under Burns' § 3-1707, which states: '* * * the court may make such further orders, and render such finding and judgment as may seem just' in a condemnation proceeding, the court had authority under the petition for an injunction filed in the same proceeding to resolve this difficulty. 1 State v. Marion Circuit Court, 1959, 239 Ind. 327, 157 N.E.2d 481.
The court's permanent injunction which is before us on this appeal enjoins the State 'from selling or disposing of any buildings located on the real estate of the defendant' except 'that portion of said real estate which has heretofore been condemned by plaintiff as a permanent right-of-way for highway purposes.' (Our italics.) In other words, the State is enjoined from selling or disturbing the buildings upon the so-called 'temporary right-of-way'.
The appellee-Curtis had the burden of proving ownership of the land and the right to the possession of the improvements and property over which there is now a controversy. After appellee's proof of ownership in fee-simple, it was incumbent upon the State to show what right it had to sell or dispose of the improvements upon the land of the appellee-owner. The only right the State had was by virtue of the condemnation judgment and order entered. The description of the land and interest taken is the same in this judgment as that described in the complaint. That portion with which we are concerned is merely designated as a 'temporary right-of-way'. There is no description as to how 'temporary' either as to time or purpose, the use is to be. The State, in argument, contends that the temporary right-of-way was to be used only during construction and for the purpose of removing the buildings thereon, yet there is no such authority or limitation included in the judgment relied upon by the State in that or any particular. A matter involving rights in real estate cannot be left in such uncertainty. Under the facts presented, the State has failed to prove any right under the mere description 'temporary right-of-way' to sell, take and destroy any of the improvements on the appellee's property in the area designated merely as 'temporary right-of-way'. We do not know what is meant by such an indefinite term, and we do not think it should be left to the judgment of whomever might be in charge of the Highway Department. A 'temporary right-of-way' cannot be construed as a 'permanent right-of-way' for the reason that the terms are contradictory in meaning.
'Temporary * * * opposite of permanent.' Black's Law Dictonary (Fourth Ed.)
So far as real property law is concerned, a tenant holding under a 'temporary' right even to the extent of a life tenant, may not remove or destroy permanent improvements.
It is argued that the court-appointed appraisers took into consideration the damage to the buildings located on the line of the permanent right-of-way and that the remedy of the land owner is through exceptions filed to the damages awarded and not by way of injunction. We point out that what the appraisers 'thought' were the legal rights between the State and the land owner with reference to the removal of improvements on the 'temporary right-of-way' has no binding force or effect. If the land owners were left to follow such procedure, it would be possible that the appraisers would assume that the buildings were not to be touched or removed, while at the same time the State would proceed, nevertheless, to sell the buildings and authorize third parties to remove them, as in this case. In such a situation there would be no adequate remedy other than by injunction. The description as to what the rights of the State are in the 'temporary right-of-way' is indefinite and uncertain and fixes no standard or measure upon which appraisers may determine with any certainty the amount of damage.
In Southern Indiana Gas & Electric Co. v. Gerhardt, Ind.1961, 172 N.E.2d 204, we recently held that a witness appraising the damages in a condemnation action may be cross-examined as to his knowledge of the rights between the land owner and the condemnor in order to determine the basis upon which he fixed his estimate of damages. If his understanding is erroneous, it has been held his testimony may be stricken out. How can it be said in this case that such a witness or appraiser can estimate the damages to property under such an indefinite term as 'temporary right-of-way', with no further description as to its limitations or what is to be done thereon?
The Eminent Domain Statute (Burns' § 3-1702) provides that the complaint must contain 'a specific description' of the land sought to be taken and 'the use the plaintiff intends to make of the property or right'. Under that requirement we feel the State has failed in its complaint and as a result, in the judgment of condemnation entered, to state the specific interest and use to be made of the so-called 'temporary right-of-way'. It is conceded that the highway, as constructed, will only utilize the 'permanent right-of-way' as described. The use of the so-called 'temporary right-of-way' is left vague and uncertain. The trial court had the right to conclude that the State had no right to sell or disturb the improvements on the so-called 'temporary right-of-way', under the order and judgment of condemnation in the absence of any expressed provision therein. Hire v. Kniseley et al., 1891, 130 Ind. 295, 29 N.E. 1132; 11 I.L.E. Eminent Domain § 136, p. 718.
We find no error in the judgment of the trial court in issuing the injunction enjoining the appellant from selling or disposing in any manner of the buildings and improvements located upon appellee's land except that portion which has been condemned as a permanent right-of-way for highway purposes.
The judgment is affirmed.
I dissent from the majority opinion herein and because it appears to me to be so manifestly in error, I feel impelled to state my reasons for disagreeing.
First: The action herein was originally commenced by appellant to condemn a part of appellee's land for highway purposes. Appellee, pursuant to Acts 1905, ch. 48, § 5, p. 59, being § 3-1705, Burns' 1946 Replacement, filed objections to the proceedings. These objections were overruled on October 9, 1959, and the same day the court, pursuant to Acts 1905, ch. 48, § 4, p. 59, being § 3-1704, Burns' 1946 Replacement, appointed appraisers to assess damages and benefits, if any, which appellee might sustain by reason of the location of the proposed highway.
On November 4, 1959, the appraisers filed their report which showed damages assessed as follows:
1. The value of land appropriated $ 12,750
2. The value of improvements on
land taken 18,500
3. Damages to residue because of
land and building appropriated 18,750
---------
Total damages ---------- $ 50,000
On November 10, 1959, appellant filed exceptions to the appraisers' report, and on November 13, 1959, appellee filed her exceptions to the appraisers' report. Subsequently, on December 28, 1959, while the exceptions were still pending, appellee filed her petition for an injunction seeking to prevent the State from selling or otherwise making disposition of the buildings located on part of the land sought to be appropriated and for which damages had been allowed in the appraisers' report.
From an order granting such injunction this appeal is prosecuted.
A part of appellee's house and a shed are located on land which the State seeks to appropriate for permanent right-of-way. However, in order that these buildings could be removed from the permanent right-of-way, an area of land completely surrounding both the house and shed was included in the total land to be appropriated, and such area was referred to in the complaint as 'temporary' right-of-way.
At the hearing on the petition for injunction one of the appraisers testified that in arriving at the award made in the appraisers' report, damages were allowed for the 'shed and house'...
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