State v. Lovett, 268

• Decision Date: 17 April 1970
• Docket Number: No. 268,268
• Citation: 254 Ind. 27,257 N.E.2d 298
• Parties: STATE of Indiana, Appellant, v. M. Z. LOVETT, Nina Lovett, Robert A. Fields and Esther Fields, Appellees. S 28.
• Court: Indiana Supreme Court

Page 298

257 N.E.2d 298

254 Ind. 27

STATE of Indiana, Appellant, v. M. Z. LOVETT, Nina Lovett, Robert A. Fields and Esther

Fields, Appellees.

No. 268 S 28.

Supreme Court of Indiana.

April 17, 1970.

John J. Dillon, former Atty. Gen., Rex P. Killian and William L. Fortin, former Deputy Attys. Gen., Theodore Sendak, Atty. Gen., for appellant.

Judith H. Dwyer, Washington, for appellees.

JACKSON, Judge.

This is an action brought by appellees against appellant to recover damages for an alleged 'taking' under the inverse condemnation statute, i.e. Burns Ind.Stat.Ann. § 3--1711 (the same being Acts 1905, ch. 48, § 11) of the eminent domain law.

The issues were formed when appellant filed objections to plaintiffs' complaint on inverse condemnation and appointment of appraisers (and thereafter appellees presented their evidence at the trial). The main issue was whether there was a 'taking' under the eminent domain law in excess of that which was compensated for by a duly executed right of way agreement.

Appellees' complaint herein was filed March 31, 1964, and was in two paragraphs, paragraph one was a complaint for inverse condemnation; paragraph two was for damages, alleging fraud. June 15, 1964, defendant-appellant filed objections to paragraph one of such complaint and motion to dismiss demurrers to plaintiffs' complaint and plaintiffs were fuled to plead over.

November 2, 1965, plaintiffs filed their amended complaint for inverse condemnation herein. Such complaint, omitting heading, formal parts, signatures and exhibits, reads as follows:

'Plaintiffs, M. Z. Lovett, Nina Lovett, Robert A. Fields and Esther A. Fields, complain of the defendant, State of Indiana, and allege and say:

1. Plaintiffs, M. Z. Lovett and Nina Lovett, are the owners of the following described real estate situate in the town of Plainville, county of Daviess and state of Indiana, to-wit:

Beginning 74 feet east and 100 feet south of the Southeast corner of Hanley Street and State Highway No. 57 in the town of Plainville (as defined in the deed dated August 15, 1956 from Edgar Clay Hedden and Eva L. Hedden, husband and wife, to M. Z. Lovett and recorded in Deed Record 68 page 524) and running thence South 110 feet to the center of a creek known as Hannah's Branch; thence southwest with the center of said creek 157 feet; thence northeast with the east right of way line 194 feet to a point 94 feet west of the place of beginning; thence east 94 feet to the place of beginning.

2. That said plaintiffs, M. Z. Lovett and Nina Lovett, did on the 13th day of April, 1962, sell under contract said real estate to the plaintiffs, Robert A. Fields and Esther A. Fields, a copy of which contract is attached hereto, marked Exhibit 'A', and made a part hereof.

3. That the defendant, State of Indiana, is the owner and holder or a right of way grant and/or easement along and over the west side of plaintiff's aforedescribed real estate, the east part thereof being acquired from plaintiffs under date of October 27, 1961, a copy of which is attached hereto, marked Exhibit 'B' and made a part hereof.

4. That the defendant, through its agents and employees on or about the 1st day of May, 1962, and at divers times thereafter, improved, reconstructed and raised the public highway located on the aforesaid right of way easement. That the change of grade was not considered or contemplated at the time the right of way easement or grant referred to in above rhetorical paragraph was executed, and as the result thereof, substantially and materially impaired and interfered with plaintiffs' right of access to their property.

5. That defendant, through its agents and employees, did not keep within the grant set out in rhetorical paragraph three (3) herein, and took property beyond the limits of said grant without payment for damages resulting to the residue of the land and damages to plaintiffs from said improving, reconstructing and raising said roadway, as provided by the third and fourth measure of damages as set out in Acts of 1905, ch. 48, section 6, p. 59, 1935, ch. 76, par. 3, p. 228, although compensation has been duly demanded.

6. That the said real estate is occupied and used for a drive-in restaurant and confectionary business and as the result of defendant's construction, the west edge of the defendant's roadway has extended east and raised approximately three to four feet making plaintiff's drive inaccessible to many trucking units and difficult to reach for all automotive equipment. Defendant's construction has further caused, with each rain, large quantities of water to flow over the drives and into and against the business structure located on said real estate. That plaintiff's business structure now sets below the east bern of the highway and view of the premises is obstructed.

WHEREFORE, Plaintiffs ask the court that a writ of assessment of damages may issue herein and that they may have their said damages assessed and awarded, and for all other proper relief.'

Exhibit A is a copy of the contract for sale of real estate and personal property executed by the parties plaintiff whereby sellers, Lovett, contract to sell such property to purchasers, Fields.

Exhibit B is the right of way grant executed by the Lovetts to the State of Indiana, in usual form, calling for so many feet each side of a center line described as running from certain named stations to other certain named stations. The consideration therefor being expressed as a total sum of $9,771.00.

The appellant, on November 10, 1965, filed objections to the appellees' complaint and to the appointment of appraisers. Such objections, omitting heading, formal parts and signature, read in pertinent part as follows:

'1. That the plaintiffs are not the owner of real property, an interest in real property, or a property right taken by defendant without compensation.

2. That the plaintiffs have not described in their complaint, the taking, by defendant, of real property, an interest in real property, or a property right which can result in compensable damages under the provisions of the Acts of 1905, Ch. 48, Sec. 11, as found in Burns' (1946 Repl.), Section 3--1711.

3. That the plaintiffs' alleged loss and impairment of access in, over and upon Project F--262(12), Parcel 5, as shown in plaintiffs' Exhibit 'B', in Daviess County, State of Indiana, is not such that legally entitles plaintiffs to any compensation therefor.

4. That the plaintiffs' alleged loss and impairment of access in, over and upon said Project F--262(12), Parcel 5, County of Daviess, State of Indiana, is not suffered by the plaintiffs alone and as individuals; that plaintiffs' alleged loss and impairment of access is suffered by the public generally and is, therefor, not legally compensable.

5. That plaintiffs have not suffered any special damages not suffered by the general public due to the creation of a limited access facility.

6. That defendant, State of Indiana, admits the allegations contained in paragraph one and two of plaintiffs' complaint.

7. That defendant, State of Indiana, denies the allegation contained in paragraphs three, four and five of plaintiffs' complaint.

8. That the defendant, State of Indiana, further objects to this proceeding and alleges and says, that plaintiffs, for a valid consideration, did execute to the Indiana State Highway Commission of the State of Indiana a right of way grant covering the real estate described in plaintiffs' complaint, and the Indiana State Highway Commission, in consideration thereof, agreed to and did pay plaintiffs as total damages herein the sum of Nine Thousand Seven Hundred and Seventy One Dollars ($9,771.00), all as shown by plaintiffs' Exhibit 'B' which is attached to plaintiffs' complaint.

WHEREFORE, defendant requests the Court to deny the prayer of the plaintiffs' complaint; that the Court appoint no appraisers herein; that the Court set a date for the hearing of the objections and for all other just and proper relief in the premises.'

The cause, being at issue, was submitted to the Daviess Circuit Court (prior to being venued to the Martin Circuit Court) and the court overruled appellant's objection and made a ruling that there had been a 'taking' without compensation and appointed three appraisers to assess the damages. The appraisers' report indicated that the appellees had been damaged in the sum of Two Thousand Seven Hundred Dollars ($2,700.00) because of impairment and reduction of means of ingress and egress and had further been damaged in the amount of Three Hundred Dollars ($300.00) as a result of impairment of drainage to their property. Both appellees and appellant filed exceptions to the appraisers' award and appellant demanded a jury trial.

The cause was then venued to the Martin Circuit Court where it was tried before a jury which returned a verdict for appellees in the sum of Four Thousand Dollars ($4,000.00) together with interest at the rate of six per cent (6%) or a total of One Thousand Thirteen Dollars ($1,013.00). Judgment was rendered on the verdict as follows:

'It is therefore considered and adjudged by the court that the plffs recover of and from the deft the sum of $4000.00 together with interest at the rate of 4$ (sic) per annum from Sept. 1, 1962 to this date to-wit: $733.33 together with costs in this cause laid out and expended.

On motion of the plff, the judgment heretofore entered is amended to show the correct computation of interest to-wit: 6% from Sept. 1/62 to Sept. 1/65, and 4% thereafter, for a total of $1013.00.'

The appellant's motion for a new trial was filed on July 20, 1967, and alleged, essentially, that: (1) the Daviess Circuit Court erred in ruling that there had been a taking of the appellees' real estate; (2) the verdict of the jury was not sustained by sufficient evidence, was contrary to law, and was contradicted by the jury's answers to the interrogatories presented to it by the appellant; (3) the trial court...