State v. Raymond E. Heinold Family Trust

• Decision Date: 23 October 1985
• Docket Number: No. 3-1084A271,3-1084A271
• Citation: 484 N.E.2d 595
• Parties: STATE of Indiana, Plaintiff-Appellant, v. RAYMOND E. HEINOLD FAMILY TRUST, Raymond E. Heinold, Trustee, Marie E. Heinold, Trustee; Robert Francis; Pat Francis; First Merchants National Bank; and Treasurer of Laporte County, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 595

484 N.E.2d 595

STATE of Indiana, Plaintiff-Appellant, v. RAYMOND E. HEINOLD FAMILY TRUST, Raymond E. Heinold Trustee, Marie E. Heinold, Trustee; Robert Francis; Pat Francis; First Merchants National Bank; and Treasurer of Laporte County, Defendants-Appellees.

No. 3-1084A271.

Court of Appeals of Indiana Third District.

Oct. 23, 1985.

Linley E. Pearson, Atty. Gen., Jeffrey L. Simnick, Deputy Atty. Gen., Indianapolis, for plaintiff-appellant.

Robert A. Welsh, Harris, Welsh & Lukmann, Chesterton, for defendants-appellees.

GARRARD, Judge.

The State of Indiana initiated this condemnation action to limit the access to and obtain a temporary easement over a parcel of land (trust property) in LaPorte County. The Raymond E. Heinold Family Trust and others were named to represent their respective interests in the trust property. ¹ The trust property was affected by the State's plan to make U.S. Route 30 a limited access highway facility over a four mile stretch in LaPorte County. Prior to this plan the trust property enjoyed unfettered access to U.S. 30 along its southernmost boundary.

The southern end of the trust property abutting U.S. 30 is used for commercial purposes upon which a service station and a restaurant, just to the east of the service station, operate. On the northern half of the trust property two residential buildings are located. The State's plan called for the installation of curbing in front of the trust property leaving two thirty (30) foot driveways for access to U.S. 30. ² The driveways were positioned one just to the east of the restaurant and one between the restaurant and the service station.

The testimony at trial indicated that while the residential portion of the property would be unaffected by the limited access to U.S. 30, the commercial portion (service station and restaurant) would be adversely affected by the State's project. A real estate appraiser (Chitwood) testifying for the trust put the overall value of the trust property at $174,350.00 before the limitation of access. ³ Chitwood also indicated that the highest and best use for that portion of the property abutting U.S. 30 was commercial and that the service station and restaurant fulfilled that use. Chitwood based this determination in part on the complete access the property enjoyed to U.S. 30 prior to the curbing installation. Chitwood then concluded that the highest and best use for the commercial portion of the trust property after the limitation of access would be for the service station only. Chitwood also considered the access to the commercial property after the limitation to be unreasonable because the turning radiuses of vehicles over 18 feet in length prohibited use of the south side of the gas pumps and made use of the north side of the pumps very difficult from the driveway between the service station and the restaurant and because the curbs would be so close to the front of the restaurant as to make parking there a serious problem.

The trial court refused to permit Chitwood to testify as to the after taking value of the property for the purpose of ascertaining damages when the State objected to the appraisal method he used to determine after value. The trial court also prohibited another trust witness from testifying as to damages or after value because of prior communication with a previous witness concerning the value of the property. After the trust rested without adducing any direct evidence as to the amount of damages sustained, if any, the State moved for judgment on the evidence, which was denied. The State was also unable to adduce any direct evidence as to the amount of damages or the value of the trust property. Despite the lack of direct evidence as to any amount of damages the jury returned a verdict in favor of the trust in the amount of $24,923.00.

On this appeal from the jury's award the State has presented two issues for review:

(1) Whether there was sufficient evidence on the issue of damages to support the jury's award; and

(2) Whether the trial court erred in denying the State's second request for judgment on the evidence presented in the State's motion to correct error.

It is generally held that upon review an appellate court will not disturb an award of damages in an eminent domain proceeding where the award is within the bounds of the probative evidence adduced at trial. Beyer v. State (1972), 258 Ind. 227, 280 N.E.2d 604; City of Indianapolis v. Schmid et al. (1968), 251 Ind. 147, 240 N.E.2d 66; City of Elkhart v. No-Bi Corp. (1981), Ind.App., 428 N.E.2d 43; Indiana & Michigan Elec. Co. v. Hurm (1981), Ind.App., 422 N.E.2d 371; Bd. of Comm'rs. of Vanderburgh Cty. v. Joeckel (1980), Ind.App., 407 N.E.2d 274. In the City of Elkhart case the court indicated that:

"On review of such an award, the appellate court will neither reweigh the evidence nor judge the credibility of the witnesses. The evidence will be looked at in a light most favorable to the judgment. City of Indpls. v. Heeter et al. (1976), 171 Ind.App. 119, 355 N.E.2d 429."

428 N.E.2d at 45.

While the foregoing rules tend to give great deference to damage awards in eminent domain cases because of the factfinder's ability to hear the evidence and judge the credibility of witnesses first hand, there is an important limitation placed upon juries in these cases. The Indiana Supreme Court articulated this limitation in the case of Gradison v. State (1973), 260 Ind. 688, 300 N.E.2d 67, 74-75 when it determined that:

"In eminent domain cases, the jury may not base its verdict upon their independent knowledge of values. The reason for such rule was clearly set forth in Washburn v. Milwaukee & Lake Winnebago R. Co., 59 Wis. 364, 18 N.W. 328, 331, 20 Am. & Eng.R.Cas. 225:

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[I]f the testimony of value and damages is conflicting, the jury may resort to their own general knowledge of the elements which affect the assessment, in order to determine the relative weight of conflicting testimony, but their assessment must be supported by testimony, or it cannot stand." (emphasis added)

Hence, it is the State's contention that there is no testimony in this case which will support the jury's assessment of $24,923.00. Based upon our review of the record below we are required to agree.

The only testimony from which a specific amount of damages could be discerned is that of the trust's appraiser, Kenneth Chitwood. He testified that it was his opinion that 45 percent of the service station's business would be lost as a result of the difficult turning radiuses attributable to larger vehicles. He further testified that the highest and best use after the taking would probably be that of a service station only. The trust contends that from this latter testimony the jury could infer a 100 percent loss of use of the restaurant to the commercial portion of the trust property. In other words, the trust contends that based upon Chitwood's valuation of the restaurant at $41,100.00 before the access restriction and his conclusion that the highest and best use of the trust property after the taking did not include the restaurant, the jury could have awarded up to $41,100.00. Since the actual award was under that figure, it was within the scope of the probative evidence and should be affirmed. This conclusion assumed from Chitwood's testimony that because in Chitwood's opinion the highest and best use of the property no longer included the restaurant, the value of the property would decrease by the value the restaurant had contributed before the access limitation.

The Indiana Supreme Court has addressed the issues of entitlement to and assessment of a landowner's damages when the State has affected the landowner's access to his property in State v. Peterson (1978), 269 Ind. 340, 381 N.E.2d 83. In Peterson the Supreme Court concluded:

"It is true that whether the landowner is left with reasonable access to his realty bears greatly upon whether he had indeed suffered special injury. However, it must be borne in mind that his damage entitlement is to be based upon the highest and best use of the property at the time of the taking. Thus, if the highest and best use before the taking was for one purpose, and because of the access available after the taking, the property was no longer suitable for that use, but was still suitable for a less valuable use, the owner would be entitled to the damages reflecting the diminished value.

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The highest and best use to which land could reasonably be devoted immediately before the 'take' is the criteria for determining its value at that time. If the access to which the owner was then lawfully entitled was necessary in order to so use the land, and that access is denied by the 'take', the owner is entitled to be compensated, regardless of the availability of other access which may be 'reasonable' for other purposes but does not fulfill the need critical to the coveted use." (...