State v. Smith

• Citation: 143 N.E.2d 666,237 Ind. 72
• Decision Date: 28 June 1957
• Docket Number: No. 29390,29390
• Parties: STATE of Indiana, Appellant, v. Howard SMITH and Lula I. Smith, Appellees.
• Court: Indiana Supreme Court

Page 666

143 N.E.2d 666

237 Ind. 72

STATE of Indiana, Appellant, v. Howard SMITH and Lula I. Smith, Appellees.

No. 29390.

Supreme Court of Indiana.

June 28, 1957.

Edwin K. Steers, Atty. Gen., Richard G. Stewart, Frank X. Haupt, Deputy Attys. Gen., Montgomery & Montgomery, Seymour, for appellant.

Mellen & Mellen, Bedford, Branaman & Markel, Brownstown, for appellees.

BOBBITT, Judge.

Appellant filed in the Lawrence Circuit Court an action to acquire for highway purposes a strip of appellees' land, from 100 to 105 feet in which and 1,355 feet long, containing 3.185 acres, more or less.

Both parties filed exceptions to the award of the appraisers and the issues so raised were tried before a jury, on a change of venue to the Jackson Circuit Court. From a verdict awarding damages in the sum of $5,500, together with interest at 6% per annum from February 16, 1952, this appeal is prosecuted.

The sole error assigned is the overruling of appellant's motion for a new trial, and of the fourteen specifications or grounds therefor, Nos. 1, 2, 7, and 11 are waived because they are not discussed in the argument section of appellant's brief as required by Rule 2-17(e), 1954 Edition, of this court. Gernhart v. State, 1954, 233 Ind. 470, 471, 120 N.E.2d 265.

First: Specifications 4 and 5 allege error of the trial court in refusing to admit certain evidence offered by appellant. State's witness Olson was asked, 'Well, now in your opinion, would any part of it have sale value for anything else other than farming?'

Appellees objected upon the ground that 'the only time they could claim any benefits here would be when it would be a benefit different from other land that's along the highway.'

The other State's witness Adamson was asked, 'In your opinion does it have a market value for any other purpose other than farming?; to which defendants objected for the same reason, and the State thereupon made an offer to prove by these witnesses 'that parts of this same farm along the new highway on either side, has a sale value in small tracts at a higher market value than it would have for sale as an entire farm.'

Appellees assert that the benefits which appellant is attempting to show by the testimony of these witnesses are common to all the other owners whose lands are intersected by the relocation of the highway, and hence such benefits, if any, are general and not special.

The record discloses that the land here in question is about midway between the cities of Bedford and Mitchell, Indiana, on State Road No. 37, and that some 'real estate' along this highway, south of appellees' farm, had already been sold at the time of the trial, and that at least three or four new homes were being built along the new highway.

The testimony which the State sought to produce from these witnesses, by the questions as set out hereinabove, pertained to 'the damages, if any, to the residue of the land of such owner or owners [appellees] to be caused by taking out the part sought to be appropriated.' Acts 1935, ch. 76, § 3, p. 228, being § 3-1706 (Third), Burns' 1946 Replacement.

In estimating such damages, the benefits, if any, accruing to the residue, shall be deducted from the amount of damages allowed, if any; and the difference, if any, plus the damages allowed for the property actually appropriated, shall be the amount of the award, but in no case shall the total damages on account of the land and improvements actually appropriated. Section provements actually appropriated. Section 3-1706, supra. ¹

This brings us to the real question at issue: Assuming that appellees' residual land is benefited by the relocation of State Highway No. 37, because a certain part of it would have a higher market value for purposes other than farming, would such benefit be special to them or a general benefit which they sustain in common with the community or locality at large? If such benefit be special, then the trial court erred in excluding evidence pertaining to such benefts. However, if they are general, such evidence was properly excluded.

This court has adopted the definition of general and special benefits as set out in 2 Dillon Mun.Corp., 3d ed., § 624, pp. 618, 619, as follows:

'I. General or public, being such as are not peculiar to the particular proprietor, part of whose property is taken, but those benefits in which he shares and those injuries which he sustains in common with the community or locality at large.

'II. Special or local, being those peculiar to the particular land-owner, part of whose property is appropriated, and which are not common to the community or locality at large, such, on the one hand, as rendering his adjoining lands more useful and convenient to him, or otherwise giving them a peculiar increase in value, and, on the other, rendering them less useful or convenient, or otherwise, in a peculiar way, diminishing their value. The former class of benefits or injuries--namely, those which are general, and not special--have, according to the almost uniform course of decision, no place in the inquiry of damages, and cannot be considered for the purpose of reducing the amount, being too indirect and contingent; but injuries which specially affect the proprietor, or benefits which are specially conferred upon his adjacent property, part of which is taken, are to be considered, * * *.' (Our italics.) State v. Ahaus, 1945, 223 Ind. 629, 636, 637, 63 N.E.2d 199.

In order that benefits may be set off against the damage to the land not taken, as provided in § 3-1706, supra, such benefits, if any, must be special or local or such as result directly or peculiarly to the residue of the particular tract of land from which the appropriation is made. General benefits resulting to owners in common with the public or locality at large cannot be set off against damages to the residue of the land. State v. Ahaus, supra; Elliott, Roads and Streets, Vol. 1, 4th ed., § 277, p. 329.

'Benefits are special when they increase the value of the property, relieve it from a burden, or make it especially adapted to a purpose which enhances its value.' Cleveland, C., C. & St. L. Ry. Co. v. Munford, 1935, 208 Ind. 655, 671, 197 N.E. 826, 833.

It has also been held that special benefits are such as result from the mere construction of the improvement, and are peculiar to the land in question. Los Angeles County v. Marblehead Land Co., 1928, 95 Cal.App. 602, 273 P. 131, 137.

The Supreme Court of Pennsylvania has referred to special damages as follows:

'The question, in each case, is whether or not the special facilities afforded by the improvement have advanced the market value of the property, beyond the mere general appreciation of property in the neighborhood.' Pittsburgh B. & B. Ry. Co. v. McCloskey, 1885, 110 Pa. 436, 442, 1 A. 555, 556.

The Supreme Court of Massachusetts, in Hall v. Commonwealth, 1920, 235 Mass. 1, 126 N.E. 49, 50, held that a new highway which afforded more convenient access to, and conferred a frontage on, a much better and more desirable road, conferred special benefits, and at page 50 of 126 N.E. said:

'It is settled that benefits of this character are direct and special even if all the estates in the vicinity abutting on the street are similarly benefited.'

The Supreme Court of Nebraska has ably stated the general rule which we think applies with equal force to the case now before us.

'This term 'special benefits' implies benefits, such as are conferred specially upon private property by public improvement, as distinguished from such benefits as the general public is entitled to receive therefrom. In common with the general public, the owner of adjacent property is entitled to travel upon the improved highway; and although, by reason of the improvement, such travel may be rendered easier or more pleasant, yet the benefit is general. because it is enjoyed by the public in common with the owners of adjacent property. If the improvement should result is an increase in the value to adjacent property, which increase is enjoyed by other adjacent property owners, as to the property of each exclusively, the benefit is special; and it is none the less so because several adjacent lot-owners derive, in like manner, special benefits, each to his own individual property. Such fact, if it exists, in no respect decreases the increment in value enjoyed by any one of the adjacent property owners; and, by way of offset, such increment should therefore be treated as a apecial benefit, in favor of whomsoever it may arise.' Kirkendall v. City of Omaha, 1894, 39 Neb. 1, 57 N.W. 752, 754.

Lewis, Eminent Domain, 3d Ed., § 702, p. 1213, defines special benefits as, '* * * such as affect the actual use and enjoyment of property, and thereby render it more valuable in the market.'

In Elliott,...