State v. Jordan
| Decision Date | 22 March 1966 |
| Docket Number | No. 30698,30698 |
| Parties | STATE of Indiana, Appellant, v. Joseph E. JORDAN and Martha Jane Jordan, d/b/a Jordan's Pharmacy, Appellees. |
| Court | Indiana Supreme Court |
John J. Dillon, Atty. Gen., James Manahan, Deputy Atty. Gen., for appellant.
Donald L. Adams, Donald R. Willsey, John P. Price, Indianapolis, Hollowell, Hamill & Price, Indianapolis, of counsel, for appellees.
This is an action in inverse condemnation by the appellees to recover damages arising from the taking of land by the State of Indiana for highway purposes. Judgment was rendered in favor of the appellees in the amount of approximately $13,000.00. The State appealed.
The State, by its objections, raised the issue as to whether a 'taking' of real estate actually existed. This issue was decided adversely to the State when the court overruled the objections to the proceedings on that ground. The appellees now argue that no interlocutory appeal having been taken from this ruling, any error therein is waived and cannot be raised on appeal from the final determination of this case. However, we have ruled just recently to the contrary, the distinguishing feature being that in a proceeding for inverse condemnation such as this, an interlocutory appeal is not proper, but the question may be saved for determination upon a final appeal. Evansville-Vanderburgh L.A.D. v. Towne Motel, Inc. (1966), Ind., 213 N.E.2d 705.
The facts in this case are that the State of Indiana purchased a 15-foot strip of land on the southeast corner of Keystone and 71st Streets in Indianapolis on May 10, 1960 from the owner of the land. This was taken from a tract used as a parking lot by the appellees. The appellee-Jordan operated a drug store on a 40 70 foot building at the same corner. Jordan had been using this building since March 6, 1956 to operate a drug store under a five year lease which was to expire January 31, 1961. On May 10, 1960 the State made the purchase from the then owner of the premises. At that time the appellees-lessors held 'an extension' of the old lease which was executed on December 20, 1960 and which was to expire on March 1, 1962. The State took possession of the premises on February 1, 1961.
On November 18, 1961, after the taking of possession, the owner of the land and Jordan executed another lease between them covering the same property, which ran for 13 months from February 1, 1962 to February 28, 1963.
The question arising here is whether or not the lessor or tenant of the property operating the drug store on the 40 70 foot tract of land described in the lease, had any real estate or rights in real estate taken by reason o the action of the State of Indiana. It is contended that the leases involved covered the parking lot from which the 15-foot strip was taken, and that five parking spaces were thereby taken from the appellee-tenant. An examination of the lease shows that the real estate description is as follows:
'The 70 Ft. by 40 Ft. building now being completed, located on the North West corner of Block 'A' in Creekwood Homes, * * *
'Commonly known as 7069 N. Keystone Avenue, together with the rights, privileges and appurtenances to the same belonging to have and to hold the same for and during the term. * * *'
There is a reference in the lease also to a prohibition against permitting liquor to be drunk on the leased premises or 'on the parking lots adjoining the same.'
It would seem that there might be some basis for the assumption that the parking lot from which the State took a 15-foot strip was included in the original lease. However, it appears from the facts that if it were so included, then the extension or renewal of the lease, which was made on the 20th day of December, 1960, could not have included such strip, since the owner at the time did not hold title to that strip, it having been previously deeded by the owner to the State on May 10, 1960. If the tenant's right to a renewal or extension had been violated, his remedy, it appears, would be against the landlord or owner of the land for making a lease covering grounds which he had previously conveyed away.
The appellant urges still another ground in support of the contention that the appellees had no interest in the real estate taken by the State, namely, that the option to renew was not enforcible or binding legally, since there was no fixed sum therein for rent. The option or renewal clause in the lease reads as follows:
Appellant cites the cases of: Habich v. University Park Bldg. Co. (1912), 177 Ind. 193, 97 N.E. 539, and Puetz et al. v. Cozmas et al. (1958), 237 Ind. 500, 147 N.E.2d 227.
An examination of these cases reveals that a lease, as in the case of all contracts, must be definite and certain as to the provisions, and that principle applies to the rental to be paid. The court cannot fix what is a 'reasonable rental', since what is 'reasonable' might appear to the lessor to be entirely different from that which appears to be reasonable from the lessee's position. Certain factors, such as taxes, repairs, etc., may be applicable to one or the other of the parties, along with other uncertain and indefinite circumstances that should or should not be taken into consideration, depending upon the ideas in the minds of the parties. Such intangible and indefinite matters the court cannot fathom and make certain. This is a thicket into which the courts have hesitated to venture when the parties themselves have failed to make the contract more certain. For the reasons stated we find that the alleged option or renewal was not an enforcible instrument, and therefore the appellees had no legal interest in the property in question based upon any alleged renewal agreement. 32 Am.Jur., Landlord and Tenant, § 965, p. 810; 18 I.L.E., Landlord and Tenant, § 102, p. 238.
The next question is, assuming that no real estate or right in real estate has been taken from the tenant or owner of the land, is such a person, nevertheless, entitled to damages resulting to his business operated upon such land by reason of the construction of widening of the highway?
In this case the court permitted, over objection of the State, a large amount of testimony with...
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