State v. Patten

• Decision Date: 05 February 1936
• Docket Number: 26319
• Citation: 199 N.E. 577,209 Ind. 482
• Parties: STATE v. PATTEN et al
• Court: Indiana Supreme Court

199 N.E. 577

209 Ind. 482

STATE v. PATTEN et al

No. 26319

Supreme Court of Indiana

February 5, 1936

1. PLEADING---Supplemental Pleadings---Nature and Subject-Matter---New Facts.---A supplemental pleading is one consisting of facts arising after the filing of the original p. 486.

2. PLEADING---Supplemental Pleadings---Nature and Subject-Matter---Old Facts.---Facts existing at the time of filing the original pleading cannot be brought into the case by a supplemental pleading. p. 487.

3. PLEADING---Nature of Pleading---Effect of Title.---The material facts incorporated in a pleading determine its force and effect rather than the name given it by the pleader. p 487.

4. PLEADING---Demurrer---Addressed to Pleading by Title---Where Title Erroneous.---Demurrer addressed to "supplemental" cross-complaints would be considered although the pleadings were in fact additional cross-complaints, where causes for demurrer were proper. p 487.

5. EMINENT DOMAIN---Proceedings for Condemnation---Dismissal---Right of Condemnor.---State held entitled to dismiss condemnation proceedings for highway purposes after damages had been assessed. p. 488.

6. HIGHWAYS---Alteration---Change of Grade---Effect on Private Improvements.---Adjoining landowners who have built private bridges to reach a highway have no vested rights therein that would preclude a change of grade when public necessity requires it. p. 488.

7. EMINENT DOMAIN---Proceedings for Condemnation---Dismissal---Liability for Damages on Discontinuance of Proceedings.---State's right to dismiss condemnation proceedings for the purpose of widening a highway were unaffected by the fact that private bridges to the original highway were rendered useless by a change of grade, since the changes were confined to the original right of way and had no connection with the condemnation proceeding. p. 488.

8. HIGHWAYS---Alteration---Change of Grade---Effect on Private Improvements.---Raising the grade of an established highway within the bounds of the original right of way held not an additional taking of private land on the grounds that the change of grade would require the building of private bridges to the new grade, that existing ditches and levees would be useless and destroyed, or that the new highway would hold water on the adjoining land longer. p. 490.

9. HIGHWAYS---Alteration---Change of Grade---Right to Damages---Right of Way Granted Without Limitation.---Where the right of way for a highway was granted by deed without limitation,

the grantors waived any action for damages on account of a change of grade except such as might result from an improper or negligent construction of the improvement. p 495.

10. PLEADING---"Counterclaim" and "Cross-Complaint" Distinguished.---If a cross-proceeding be against the plaintiff, and grows out of the subject-matter of the cause of action set up in the complaint, it is a "counterclaim," while a pleading filed by one defendant against one or more co-defendants for relief against them is a "cross-complaint." p. 495.

11. PLEADING---Counterclaim---Nature of Relief.---The statute contemplates two classes of counterclaims: (1) such as embrace matters that go merely in mitigation of damages, and (2) such as are based upon matters that may be the subject of an action in favor of the defendant against the plaintiff. p. 496.

12. EMINENT DOMAIN---Proceedings for Condemnation---Pleading---Counterclaim.---In the state's condemnation proceedings for the purpose of widening a highway, defendants were not entitled to file a counterclaim for damages resulting from a mere change of grade of the original highway, the claims being in the nature of damages for a tort and not maintainable against the state. p. 496.

Appeal from Greene Circuit Court; George G. Humphreys, Judge.

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

Henderson & Henderson, of Indianapolis, John W. Lindley, of Sullivan, and Allen G. Pate, of Bloomfield, for appellees.

OPINION

HUGHES, Judge.

The appellant filed a complaint in the Sullivan circuit court to condemn certain real estate belonging to appellees for the purpose of appropriating about five acres of land to widen an already established highway. The complaint was filed in the early part of the year 1930. Appraisers were appointed, and on May 16, 1930, they filed their report allowing damages in the sum of $ 49,000. On May 19, 1930, the state filed exceptions to the report. On September 1, 1930, each of appellees filed a pleading denominated a counterclaim or cross-complaint. On October 10, 1930, a change of venue was taken to the Greene circuit court. On January 30, 1931, the state filed a motion to dismiss its condemnation proceedings alleging in said motion that the state highway commission changed its plans and specifications as to said improvement so that the land sought to be condemned would not be needed. The main reason appears to be that the state did not feel that it was justified in making the improvement on account of the great cost. On March 30, 1931, the court sustained the motion of the state to dismiss the proceedings, and the same was dismissed. The appellees filed written objections to the motion to dismiss. On September 23, 1931, the appellees filed pleadings denominated supplemental counterclaims or cross-complaints. On March 7, 1932, the state filed motions to strike out the counterclaims or cross-complaints of appellees, which were overruled. Demurrers were filed by the state to the counterclaims or cross-complaints and overruled. A general denial was filed, a trial by jury had, and verdict returned for appellee Patten, in the sum of $ 600, and $ 15,000 for appellee McKinney, as administrator. A motion in arrest of judgment was filed and overruled, and a motion for a new trial was filed and overruled, and this appeal followed.

Errors relied upon by appellant are as follows:

(1) The court erred in overruling appellant's motion to strike from the files the counterclaims and/or cross-complaints of E. Kirk McKinney, as special administrator of the estate of James C. Patten, deceased, and of William T. Patten, trustee.

(2) The court erred in overruling appellant's demurrer to the supplemental counterclaim and/or cross-complaint of the appellee E. Kirk McKinney, as special administrator of the estate of James C. Patten, deceased.

(3) The court erred in overruling appellant's demurrer to the supplemental counterclaim and/or cross-complaint of the appellee William T. Patten, trustee.

(4) The court erred in overruling appellant's motion for a directed verdict for the state of Indiana.

(5) The court erred in overruling appellant's motion in arrest of judgment.

(6) The court erred in overruling appellant's motion for a new trial.

(7) The trial court did not have jurisdiction of the subject-matter of the action.

The counterclaims or cross-complaints of the appellees are in substance the same. It is alleged that appellees are the owners of certain real estate, and that the highway in question runs through the same; that about five years ago the state highway commission obtained a grant through the lands of appellees to raise the grade and improve said highway, and in pursuance thereof did raise the grade and put metal thereon; that at the time of so doing there were large ditches constructed on the north side of said state highway on said lands which aided in taking care of any flood waters that came upon said real estate; that the highway through said lands runs through Busserun creek bottoms; that said creek has a large watershed, and, when rains come, it rises rapidly, and spreads out over the bottoms; that the creek is the outlet and sewer for a large number of coal mines which are continuously pumped, and the water thrown into the creek; that said water contains sulphur and other poisonous matter which are destructive to growing crops, and, when the water gets over the bottom, vegetation thereon is killed.

It is further alleged that in the summer of 1930 the state highway commission adopted plans and specifications for the widening of said roads and filed condemnation proceedings to take land of the appellees for said purpose; that the appraisers were appointed, and they allowed as damages $ 49,000; that thereafter the commission changed its plans and specifications, and left the width of the highway as originally made, but raised the grade and concreted the same to the boundary of appellees' land. They allege by the raising of the grade an additional right of way was acquired over and above the original grant. (Our italics.) It is also alleged that it will be necessary to construct bridges at great cost to reach the road from the land.

There is an additional allegation in the counterclaim or cross-complaint of James Patten that he had constructed extensive levees upon his land, and that by the raising of the roadbeds they have become useless and will be eventually washed out, wholly destroyed, and water will remain longer upon his land to his great damage.

Both the appellant and appellees speak of supplemental counterclaims and cross-complaints filed by the appellees. Such Pleadings were denominated as such, but, as we construe them, they are not in any sense supplemental pleadings. A supplemental pleading, as the name implies, is one consisting of facts arising since the filing of the original.

In the pleading, denominated supplemental, filed by McKinney, as administrator of estate of James C. Patten, deceased, there were two paragraphs of complaint. There are no new facts set out in the first paragraph that arose since the filing of the first counterclaim or cross-complaint, and the same may be said of paragraph 2. The prayer of the second paragraph...