State v. Lincoln Memory Gardens, Inc.

• Decision Date: 26 October 1961
• Docket Number: No. 29981,29981
• Citation: 242 Ind. 206,177 N.E.2d 655
• Parties: STATE of Indiana, Appellant, v. LINCOLN MEMORY GARDENS, INC., Appellee.
• Court: Indiana Supreme Court

Page 655

177 N.E.2d 655

242 Ind. 206

STATE of Indiana, Appellant, v. LINCOLN MEMORY GARDENS, INC., Appellee.

No. 29981.

Supreme Court of Indiana.

Oct. 26, 1961.

Edwin K. Steers, Atty. Gen., Robert E. Robinson, Deputy Atty. Gen., for appellant.

Paul J. DeVault, Arthur W. Banta, Indianapolis, Russell I. Richardson, Lebanon, for appellee. Krieg, DeVault, Alexander & Capehart, Indianapolis, Stewart & Richardson, Lebanon, of counsel.

BOBBITT, Judge.

In 1953 appellee purchased 38.03 acres of land in a farming community in Boone County, Indiana, for the purpose of establishing and developing a garden-type cemetery. The land adjoins State Road 52 a few miles northwest of Indianapolis.

A plat of the entire tract of land was filed in the Recorder's office in Boone County, on January 13, 1954, as Lincoln Memory Gardens, and a further plat was so filed on February 20, 1955.

The individual grave markings are set flush with the lawn, and the cemetery is composed of special gardens or burial areas designed around some religious art feature which identifies that particular garden.

Detailed plats of the special gardens were also recorded and on November 7, 1956, a plat of the 'Garden of the Last Supper' which is located in the northeast part of the cemetery and includes the land here in question, was placed of record.

Appellee established a perpetual care fund for the cemetery as provided by law, and has paid into such fund a sum in excess of $64,000, and has spent on the development and improvement of the cemetery a sum in excess of $175,000.

At the time of the trial 15,200 burial spaces had been sold in the entire cemetery area. In the 'Garden of the Last Supper' 876 burial lots where wholly appropriated by the State, and 2,845 burial lots were affected by the location of the highway.

Although this Garden has not been developed beyond the point of platting and recording of the plat, 1,162 burial lots in the 'Garden of the Last Supper' had been sold at the time of the trial, 63 of which were among those appropriated by the State.

On September 22, 1958, the appellant, State of Indiana, filed an action to condemn a strip of land containing approximately 0.599 acres and running diagonally across the northeast corner of the cemetery through the 'Garden of the Last Supper', for the purpose of constructing a limited access highway.

Exceptions to the award of the court-appointed appraisers were filed by both the appellant and appellee herein. Trial was had by jury which found for the defendant-appellee and assessed damages in the sum of $23,600, with interest at 6% from May 2, 1959. Judgment was entered accordingly.

First: By Specification No. 14 of its motion for a new trial the State asserts that the trial court erred in refusing to permit a witness to testify that she was willing to sell three-fourths of an acre of land adjoining the cemetery and suitable for burial purposes for the sum of $1,500, and in refusing to give the State's tendered Instruction No. 12, which is as follows:

'The Court instructs you that in determining the damages sustained by defendant you may take into consideration the availability of land adjoining the remaining Lincoln Memory Garden property, the willingness or unwillingness of the adjacent owner or owners to sell and whether or not said land or lands are suitable as a replacement or substitute for the property taken.'

By this specification the State raises the question of the proper basis of the measure of damages involved in the appropriation of the strip of land across one corner of the cemetery here in question, and urges upon us the application of the principle of substitution.

The principle of substitution has not been recognized in this jurisdiction as an element of value in determining the amount of damages to be assessed in eminent domain proceedings. The question here presented is one of first impression in Indiana. However, appellant has furnished us with no authority from other jurisdictions in support of its position here, but relies wholly upon statements from the appraisers' book, 'The Appraisal of Real Estate' (1951), ¹ published under the direction of the Education Committee, American Institute of Real Estate Appraisers, Chicago, Illinois.

The rule by which we must be governed in this case has been firmly established in Indiana by statute ² and the decisions of this court. ³

In fixing damages for the condemnation and appropriation of a part of a tract of land such as is here involved, consideration shall be given to the fair market value of the parcel appropriated; the fair market value of the improvements thereon, if any; the damage, if any, to the residue of the land caused by the taking of the parcel; and such other damages, if any, as will result from the construction of the proposed improvement. Acts 1935, ch. 76, § 3, p. 228, being § 3-1706, Burns' 1946 Replacement; State v. Stabb, 1948, 226 Ind. 319, 79 N.E.2d 392; Southern Indiana Gas & Electric Co. v. Gerhardt, Ind.1961, 172 N.E.2d 204, 205; 11 I.L.E. Eminent Domain § 53, p. 610. See also: Alberson Cemetery Ass'n v. Fuhrer, 1923, 192 Ind. 606, 613, 137 N.E. 545; State v. Tibbles et al., 1954, 234 Ind. 47, 51, 123 N.E.2d 170; Northern Indiana Public Service Co. v. McCoy et ux., 1959, 239 Ind. 301, 157 N.E.2d 181, 186.

Although the principle of substitution (tending to set the value of property that is replaceable by the cost of acquisition of an equally desirable substitute property) has not been considered by this court, we have recently held ⁴ that one may not be excluded from a certain building zone under a zoning ordinance on the ground that he could find a comparable site outside the zone in which his property was situated.

While there is a distinction between the zoning of property and the exercise of the right of eminent domain, the denial of a zoning variance because an equally suitable substitute property might be available in another zone, has the same effect as denying a condemnee the right to proper damages for land taken in a condemnation proceeding, because an equally suitable substitute property might be available to him as a replacement for the property taken.

One who has his land taken in an eminent domain proceeding by being compelled to accept in lieu thereof an equally desirable property or tract of land, is deprived of his property as effectively and completely as is one who is denied a zoning variance on the ground that an equally suitable and valuable property is available to him in a zone other than the one in which his property is situated. In our judgment the rule of substitution in zoning proceedings as announced in Board of Zoning Appeals of Meridian Hills v. Schulte, Ind.1961, 172 N.E.2d 39, 40, applies with equal force to the substitution of equally suitable land, or its value, for that appropriated in eminent domain proceedings.

'The principle of substitution, i. e., replacement cost, is not germane. Where the taking splits apart property which is held in one parcel and used for a single purpose by the building of a heavily traveled highway through the property leaving a truncated section, restoration of the use of the property as a unified and combined whole is manifestly impossible. The land taken is irreplaceable by the substitution of other land in a different location. Replacement cost has not been admitted as evidence in measuring the value of vacant land. The same rule applies to condemnor as condemnee.' (Citing authorities.) St. Agnes Cemetery v. State, 1957, 3 N.Y.2d 37, 163 N.Y.S.2d 655, 663, 143 N.E.2d 377, 383, 62 A.L.R.2d 1161, 1170.

A mere offer to buy or sell property is not a measure of the market value of a similar property. It is incompetent to prove the market value of property because the asking price is only the opinion of one who is not bound by his statement, and is too unreliable to be accepted as a correct test of value.

A witness in an eminent domain proceeding may state the cost of a particular property at a given place in order to establish the value of a similar property. But evidence of the price for which someone might be willing to sell such similar property or how much he may have refused to take for it would not tend to prove the market value of the property taken. Mackey v. State, 1943, 220 Ind. 607, 609, 45 N.E.2d 205; Indianapolis, etc., Traction Co. v. Wiles, 1910, 174 Ind. 236, 241, 91 N.E. 161; Lehmicke, Administrator v. The St. Paul, Stillwater & Taylor's Falls Railroad Co., 1873, 19 Minn. 464, 483, Gil 406; Williams et al. v. Hewitt, 1910, 57 Wash. 62, 66, 106 P. 496; New Jersey Turnpike Authority v. Bowley, 1958, 27 N.J. 549, 556, 143 A.2d 558; State By and Through State Highway Commission v. Morehouse Holding Company, 1960, Ore., 357 P.2d 266, 267; State Through Dept. of Highways v. McDuffie, 1960, 240 La. 378, 391, 123 So.2d 93; Atlantic Coast Line R. Co. v. United States, 1943, 5 Cir., 132 F.2d 959, 963; United States v. Regents of New Mexico School of Mines, 10 Cir., 1950, 185 F.2d 389, 391. See also: 7 A.L.R.2d 781, Annotation.

The testimony of the witness herein that she was willing to sell three-fourths of an acre of land to appellee for the sum of $1,500 as a replacement for the land taken by the State, should not have been admitted over proper objection, because her asking price was not a true test of the market value of appellee's land taken by the State.

For the foregoing reasons we decline to adopt the principle of substitution as an element to be considered in the assessment of damages in eminent domain proceedings. The trial court did not err in excluding such testimony or in refusing to give State's tendered Instruction No. 12.

Having decided that the principle of substitution does not apply here, we now proceed to a consideration of the other questions presented under the rules of law as they presently maintain in this jurisdiction.

Second: Appellant further asserts that the trial court erred in...