State v. Hamer

• Decision Date: 05 February 1936
• Docket Number: 26495
• Citation: 199 N.E. 589,211 Ind. 570
• Parties: STATE v. HAMER et al
• Court: Indiana Supreme Court

199 N.E. 589

211 Ind. 570

STATE v. HAMER et al

No. 26495

Supreme Court of Indiana

February 5, 1936

Appeal from Marion Circuit Court; Earl R. Cox, Judge.

Philip Lutz, Jr., Atty. Gen., and William E. Bussell, Deputy Atty Gen., for the State.

Noel Hickam, Boyd & Armstrong, of Indianapolis, for appellees.

OPINION

HUGHES, Judge.

This is an action to condemn 1.4 acres of land for state highway purposes. The land taken was from an 8-acre tract. In the regular proceedings, appraisers were appointed who filed their report assessing damages in the sum of $ 2,200. Exceptions were filed, a trial had by a jury, and a verdict for $ 7,500 was returned, and judgment was rendered for $ 8,367.50, including interest.

Appellant relies upon two errors for reversal: First, in overruling appellant's motion for a new trial; and, second, in overruling appellant's motion to modify the judgment.

We will consider the errors complained of by appellant as set out in appellant's brief under propositions, points, and authorities.

The appellant first contends that the court erred in refusing to give instructions numbered 6 and 7, tendered and requested by the appellant. Instruction No. 6 is as follows:

'I instruct you that if you find from the evidence that any witness who has given an opinion as to the market value of the property at the time of the appropriation and the reasonable market value of the residue after the strip of real estate has been taken under the appropriation proceedings, has based such opinion in part on the value of such property to the defendant for an intended specific use to which the property has not been used generally in the past, that such opinion should be disregarded so far as it is based upon the value thereof for an intended specific future use.'

Appellant insists that said instruction is the same as one given and approved in the case of Halstead v. Vandalia R. Co. (1911) 48 Ind.App. 96, 95 N.E. 439, 441. The instructions are similar but not alike, nor in the exact words, as appellant claims. In the Halstead Case, the instruction was as follows:

'And, if the jury find from any evidence that any witness who has given his opinion as to the market value of the property taken has based such opinion in part upon the value of such property to the defendant for an intended specific future use, such opinion should be disregarded so far as it is so based upon the value for an intended specific future use.'

In that case it was held that under the evidence the instruction was proper for the reason that evidence had been given of the value of the property for an ice plant for which purpose Halstead said he intended to use it. It appears, however, in another instruction in said case, that the availability of the property for other uses than those to which the land was actually applied, so far as it may be shown in evidence, and the uses for which the property is suitable, to which it is adapted, may be taken into consideration, but inquiry as to damages cannot go into an intended specific use, such a field of damages being held to be speculative. In the instant case, all the evidence as to the use of the land related to it as suitable for residential purposes. It was vacant land, and no residence or residences had heretofore been built upon it. Under instruction No. 6, the jury would have been prevented from considering the value of the land as residential property for the reason that no residence had been built upon it. The instruction limited the value of the property to its past use. While it is held that an inquiry as to damages cannot go into an intended specific future use, and that proof must be limited to the present condition of the property, it is also the law that it may be shown the uses to which the property is naturally adapted. Because there was no residence upon the land would be no reason why it should not be shown that the land was suitable for residential purposes, and this was the purport of all the evidence. The preexisting use of land is not the criterion alone by which the value of the land is measured. Ohio Valley Railway & Terminal Co. v. Kerth (1892) 130 Ind. 314, 30 N.E. 298; Muncie & Portland Traction Co. v. Hall et al. (1910) 173 Ind. 292, 90 N.E. 312. There was no error in refusing to give instruction No. 6.

Complaint is made in refusing to give instruction No. 7, tendered by the appellant. We think this instruction is a proper statement of the law, but there was no error in refusing to give the same for the reason that the court of its own motion gave instructions substantially covering said instruction.

The next error complained of by appellant is the giving of instructions Nos. 1, 2, 3, 4, 5, 6, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21 on its own motion. Instruction No. 1 contained the plaintiff's complaint, defendants' exceptions to appraisers' report, defendants' objections to plaintiff's condemnation proceedings, and defendants' amendments to exceptions to appraisers' report. The part of the instruction complained of is the defendants' objections to plaintiff's condemnation proceedings. While we do not commend the instruction, we cannot see that there was any harmful error in giving it. The issue made by plaintiff's complaint and by defendants' objections to plaintiff's condemnation proceedings had been fully disposed of by the findings and judgment of the trial court before any issue was made by the filing of exceptions to the report of the appraisers. It was not necessary to set out the defendants' objections to the condemnation proceedings, but we cannot see how the same could have misled the jury in any way in view of other instructions given in the case. Instruction No. 20 specifically told the jury that the state of Indiana had properly proceeded in the condemning of and taking of the land of Hamer and Hamer, and that the only question for the jury to decide was the amount of damage. In the case of Chicago & Erie Railroad Co. v. Biddinger, Administrator (1915) 61 Ind.App. 419, 109 N.E. 953, 957, the court said:

'The practice of reading the complaint to the jury by the court, instead of stating the issues and the theory of the complaint, or each paragraph as the case might be, is a practice, no doubt, subject to criticism; but is not reversible error.'

Complaint is made of instructions 14, 15, and 16 for the reason, as appellant claims, that they assume that the residue of defendants' real estate after the appropriation was damaged by such appropriation of the part taken. We do not think these instructions are subject to such criticism. In instructions Nos. 14 and 15, the amount of damages is limited by the words 'if any,' and 'as shown to your satisfaction,' and other language which clearly shows that there was no assumption that the residue of the land had been damaged. Neither can it be said the language, in instruction No. 16, 'The law requires that any damages to the remaining tracts * * *,' when considered in view of other instructions given, assumes that there was damage to the residue of the land.

Objection is also made to instructions 14 and 15 on the theory that they permitted the jury to consider damages to other separate lands of the appellees which were not in the specific body of real estate in question. We do not agree to this contention. The complaint and all the evidence centered around one specific body of land, and there is nothing in either instruction to indicate that any other tract of land was to be considered.

We do not think any error was committed in giving instructions Nos. 14, 15, and 16.

It is contended that instructions Nos. 17 and 20 are objectionable for the reason they overemphasize the same general legal proposition set out in No. 16, namely, that the jury should not take into consideration, in determining their verdict, any benefits which might accrue to the defendants by reason of the construction of a public highway through their land. It is true, as appellant contends, that all three of said instructions state the proposition of law as above set out, but we do not think in such manner as amount to reversible error. Instruction No. 17 is the only one that considers the law on benefits alone. The other two take into consideration other elements, although they contain the same statement of the law as to benefits.

The last instruction complained of is No. 19. The instruction is as follows:

'I further instruct you if you find from a fair preponderance of all of the evidence that a market value has been established, as of May 23, 1932, for the strip of ground taken, then I instruct you that one of the elements in measuring damages for the particular strip of ground taken for the construction of State Road 31 is the fair market value for which the particular strip of land could be sold if the owners were willing to sell. But, I instruct you further, that if this particular strip of land taken by the public improvement of State Road 31 had upon May 23, 1932, a higher market value by reason of a use or uses for which it might have been put to or adapted to, but to which it had not upon said date been put to, the owners Hamer and Hamer, are entitled to such market value when and if so enhanced, if you find from a fair preponderance of all of the evidence that such uses were contemplated and the particular strip taken was adaptable to such uses.'

One of the last expressions of this court upon the measure of damages in condemnation proceedings is found in the case of Alberson Cemetery Association v. Fuhrer (1923) 192 Ind. 606, 613, 137 N.E. 545, 547:

'The true measure of damages for land having a market value when appropriated for a public use is the fair market value for which the land could be sold if the owner...