State v. Furry, 1067

• Decision Date: 11 September 1969
• Docket Number: No. 1067,1067
• Citation: 250 N.E.2d 590,252 Ind. 486
• Parties: STATE of Indiana, Appellant, v. Vinson H. FURRY, Nellie E. Furry, William E. Fry and Marian L. Fry, Appellees. S 100.
• Court: Indiana Supreme Court

Page 590

250 N.E.2d 590

252 Ind. 486

STATE of Indiana, Appellant, v. Vinson H. FURRY, Nellie E. Furry, William E. Fry and Marian L. Fry, Appellees.

No. 1067 S 100.

Supreme Court of Indiana.

Sept. 11, 1969.

John J. Dillon, Atty. Gen., Michael V. Gooch, Deputy Atty. Gen., Indianapolis, for appellant.

Richard T. Lineback, Ralph Hamill, John P. Price, Hamill & Price, Indianapolis, for appellees.

DeBRULER, Chief Justice.

A trial by jury of this condemnation case resulted in a verdict for the appellee-landowners in the sum of $50,000.00. In this case the appellant-State took 37.8 acres from the appellees' 224 acre farm located near Greenfield, Hancock County, Indiana for the construction of part of the I--70 highway project.

The State here challenges a procedure permitted by the trial court wherein the appellees, prior to trial, withdrew any claim for damages to the residue of their land and such other damages as might result to them from the construction of the project as proposed, thus preventing the State from introducing evidence of benefits resulting to the appellees' remaining land on the farm. The State also challenges a ruling of the trial court whereby an appraiser-witness of the appellees was permitted to testify to three sales of tracts of land in the immediate vicinity of the subject land deemed by him to be comparable and upon which he had based his opinion of value, which sales occurred after the determination date of appellees' damages, namely, January 15, 1965, the date of service of the summonses herein, and which sales involved tracts of land of a different size than the subject tract.

On the first point the State claims that the withdrawal of the issues of damage to the residue and 'such other damages' was accomplished by the filing of amended exceptions after the time for filing exceptions had expired. Appellees filed a motion to strike the amended exceptions and the trial court overruled that motion. We deem the trial court's ruling permitting the amendment well within the permissible limits of his discretion in civil actions in the matter of pre-trial amendment of pleadings. Darrow v. Chicago, etc. R. Co. (1907), 169 Ind. 99, 81 N.E. 1081. No prejudice resulted to the State as it contends since if the State's witnesses were prepared to testify on all five elements of damages contained in Burns' § 3--1706, infra, they would be equally prepared to testify on the remaining two issues existing after the amendment. In addition, the trial court should have discretion in the matter of the amendment of exceptions in these cases since the day time limitation on their filing is a severe limitation on the opportunity of the parties to prepare them.

The State further argues that a landowner should not be permitted to withdraw the residue and 'other damages' issues because it violates the statutory scheme of the Eminent Domain Act, citing Stephenson v. State (1963), 244 Ind. 452, 193 N.E.2d 369. Burns' § 3--1706 sets forth the measure of damages upon trial:

'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.' (Emphasis added.)

The third and fourth clauses exist in the above statute for the benefit of landowners in order that they might fully explore the damaging effect of the take upon the entire tract in a partial-taking case. When no claim is made for these classes of damages, the State has no right to introduce evidence of the value of any benefits under clause five of the above statute. We see no unfair effect upon the State by the resulting foreclosure of the State's right to offer benefit testimony to offset third and fourth clause damages. The ruling of the trial court on this issue, both on these procedural and substantive issues, was not in error.

The landowners offered testimony at the trial, by an expert appraiser, of sales of allegedly comparable tracts of land which sales occurred after January 15, 1965, the date as of which damages had to be determined. The State objected to the testimony on two grounds: first, that the tracts were not comparable, though admittedly in the immediate vicinity of the subject property, because they were much smaller than the subject property, and second, that 'after-sales' are per se inadmissible. The trial court overruled the State's objection, which ruling the State now challenges on appeal. The law in Indiana first recognizing the technique of using sales of comparable tracts to prove fair market value is Illinois Central Railroad Co. v. Howard (1925), 196 Ind. 323, 147 N.E. 142, 148 N.E. 413. Therein the rule still prevailing today was first laid down.

'* * * evidence of the price paid by way of a voluntary sale and purchase near the time the lands were appropriated, for other lands similarly situated in the immediate neighborhood, is competent on the question of the value of the lands taken. * * *

'This rule was impliedly adopted by the Supreme Court of Indiana, a dozen years ago, holding that evidence of forced sales by way of the compromise of condemnation suits was not admissible because 'they are affected by an element that does not enter into sales made in the ordinary course of business,' and citing many authorities which stated that principle as an exception to the general rule above recited as to when proof of voluntary sales is admissible.' 196 Ind. at 326, 147 N.E. at 143.

The trial technique of using sales of comparable tracts is widely used throughout our State courts and usually appears in the form of direct testimony describing the terms of a sale by one closely involved in the transaction either as a party or agent. It may also appear in the form of one of the...