State v. Ensley

• Citation: 240 Ind. 472,164 N.E.2d 342
• Decision Date: 08 February 1960
• Docket Number: No. 29760,29760
• Parties: STATE of Indiana, Appellant, v. Jack R. ENSLEY and Bennie (Beni) Ensley (H & W), Howard W. Fieber and College Life Insurance Co. of America (Mortgagee), Appellees.
• Court: Supreme Court of Indiana

Page 342

164 N.E.2d 342

240 Ind. 472

STATE of Indiana, Appellant, v. Jack R. ENSLEY and Bennie (Beni) Ensley (H & W), Howard W.

Fieber and College Life Insurance Co. of America

(Mortgagee), Appellees.

No. 29760.

Supreme Court of Indiana.

Feb. 8, 1960.

Edwin K. Steers, Atty. Gen., Richard M. Givan, Asst. Gen., for appellant.

Frederick J. Capp, Robert A. Claycombe, Claycombe & Claycombe, Indianapolis, for appellees.

BOBBITT, Judge

This action was instituted by the State of Indiana under the Eminent Domain Act of 1905, ¹ to condemn and appropriate a strip of land varying in width from 20 feet at the north end to 40 feet in the center, then reducing in width to 25 feet at the south end, which is the southeast corner of the property, being a total appropriation of approximately 7/10 of an acre.

The land taken is off the entire east side of certain property owned by appellees Ensleys, ² which property is bounded on the north by 62nd Street, on the east by Keystone Avenue, on the south by 61st Street, and on the west by Hillside Avenue, in the City of Indianapolis, indian.

This property was appropriated for the purpose of widening Keystone Avenue and constructing thereon an improved highway as a part of the Indiana State Highway System.

The court-appointed appraisers reported the total damages, as a result of the taking, to be $16,625. Both the State of Indiana and appellees filed exceptions to this report. The issue of damages was then tried by a jury, which returned a verdict for appelles and assessed total damages in the sum of $127,733. Judgment was rendered accordingly.

The overruling of appellant's motion for a new trial is the sole error assigned.

Because of the nature of the real question presented in this case we need consider only Specification No. 2 and Specification No. 12 of appellant's motion for a new trial.

Specification No. 2 asserts that 'The verdict of the jury is contrary to law.'

Specification No. 12 raises the question that the trial court erred in giving defendants-appellees' tendered Instruction No. 8 over the proper objection of the State. Such instruction is as follows:

'The owners of every parcel of real estate abutting upon a public highway are entitled to the right to use such highway for the purpose of egress and ingress to their premises for the full length of the abutment of said real estate upon such highway, this being also known as the right of access, and such owner further has the right that said highway be kept open and free from any obstruction which prevents or materially interferes with the ordinary means of ingress to and egress from said real estate.

'This is an individual right of the owner or owners of said real estate as distinguished from the interest of the general public.

'If you find by a preponderance of the evidence that there is a partial limitation and obstruction of such right of the defendants, then the taking of such right in the manner prayed for in the complaint herein is an element of damages to the owners of the real estate described in the complaint herein.' (Our italics.)

First: We are confronted at the outset with appellees' motion to dismiss on the ground that appellant's brief was not filed in time because it was left with the custodian of the State House at 6 o'clock p.m. on July 9, 1959, the last day for filing, and was not picked up until the next morning, July 10, 1959, by the Clerk who marked the brief as having been filed on July 9, 1959.

There is, in appellant's brief in opposition to the motion to dismiss, an affidavit from the clerk in which she states that she considers the custodian of the State House as her agent for the receipt and filing of briefs and transcripts and other papers which may be filed between the hour of closing of her office and 12 o'clock midnight of that day.

Elliott v. Gardner, 1943, 113 Ind.App. 47, 46 N.E.2d 702, sustains this custom. See also F.W. & H. Ind.Tr. & App.Pract., § 2666, p. 282.

This arrangement was made for the convenience of attorneys and we have been shown no reason why the clerk of this court cannot make the custodian of the State House her agent for this purpose. The time for filing appellant's brief herein did not expire until 12 o'clock midnight on July 9, 1959, and we believe that under the circumstances as shown by the record here, that it was filed 'in time.'

Second: Acts 1935, ch. 76, § 3, p. 228, being § 3-1706, Burns' 1946 Replacement, defines the elements of damages in a condemnation case as follows:

'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.'

The State contends that damages, if any, caused by the placing of a divider strip in the center of the new highway are not compensable; and that the divider strip was installed for the purpose of traffic regulation and control and was done under the police power of the State and not under the Eminent Domain Statute.

Appellees assert that they are not only entitled to damages occasioned by the taking of a portion of their land, but also to consequential damages under § 3-1706, Fourth, supra, for the alleged depreciation in the value of their remaining property caused by an alleged material interference with their right of ingress and egress resulting from the construction of a divider strip on Keystone Avenue between 61st and 62nd Streets.

If appellees' position is correct, then the judgment of the trial court should be affirmed. However, if the State's position is well taken, then the verdict of the jury is, under the evidence in the record, contrary to law and the judgment must be reversed.

The record shows that defendants-appellees introduced evidence to show that the divider strip affected the access to their property. Some of their witnesses testified that the strip of land actually taken was worth $75,500; and that the damages to appellees' land caused by the manner in which the highway was constructed was $157,650.

If the consequential damage allegedly caused to the remaining property by the manner in which the highway is constructed (with the divider strip) is compensable, then the evidence in the record is sufficient to sustain the verdict of the jury and it is not contrary to law.

We do not concur with appellees' contention that the appellant--State of Indiana--is here attempting to assert that the damages assessed by the jury are excessive. The question which we understand the State to have presented is that damages, if any, caused by the alleged material interference with the right of ingress and egress, are not the direct result of the taking of appellees' land but result from the manner in which the highway is constructed, and hence, are not compensable under the factual situation in this case, and because the verdict of the jury included such damages it is, therefore, contrary to law.

It is conceded by both parties hereto that there is independent evidence in the record from which the jury could have found that the value of the property actually taken was $75,500.

We must first determine whether or not appellees are entitled to consequential damages for the alleged material interference with their right of ingress and egress to their property onto and from Keystone Avenue under paragraph Fourth of § 3-1706, supra, because of the manner in which the highway is constructed.

Appellees own and operate a recreation center known as Little America on the land from which the strip was taken by appellant. The entire tract of land constituting Little America consists of approximately 16 1/2 acres and is zoned for business.

Prior to the widening of Keystone Avenue there was an entrance some 65 to 68 feet wide on the north portion of the east side of the tract of land, so that both north and southbound traffic could enter appellees' premises from Keystone Avenue. There was then, and still is, an entrance about 50 feet wide on 62nd Street on the north side of the property, about one-half block west of the intersection of Keystone Avenue and 62nd Street. These two entrances constituted appellees means of ingress and egress for vehicular traffic entering and leaving Little America.

The Highway Commission in reconstructing Keystone Avenue left an entrance of 40 feet in which on the north portion of the previous existing driveway onto Keystone Avenue. However, since the construction of the divider strip, only southbound traffic on Keystone Avenue has access to Little America because the divider strip provides no facilities for northbound traffic to turn left into appellees' property directly from Keystone Avenue. Northbound traffic, instead of turning directly into the present Keystone Avenue entrance, must now continue to the intersection of 62nd Street and Keystone Avenue where it then can make a left turn and drive west approximately one-half block and enter Little America from the 62nd Street entrance.

There is a filling station on the southwest corner of 62nd Street and Keystone Avenue, which is the northeast corner of appellees' property here involved.

In support of its contention that the use of the divider strip to control and regulate traffic is an exercise of the police power, the State introduced evidence to show that the divider strip runs from 61st Street to 62nd Street; that the reason for not providing for a left turn from Keystone Avenue into the Ensley Drive is because of an accepted practice that a cut in a divider strip on a heavily traveled section of a highway...