State v. Sovich

Citation253 Ind. 224,252 N.E.2d 582
Decision Date03 December 1969
Docket NumberNo. 868,868
PartiesSTATE of Indiana, Appellant, v. Nick SOVICH and Doris M. Sovich (H & W); Hobart Federal Savings and Loan Association, Bank of Indiana, Nat'l Association as Survivor of Gary Trust and Savings Bank; Continental Oil Company, a foreign corporation, Appellees. S 131.
CourtSupreme Court of Indiana

Theodore L. Sendak, Atty. Gen. of Indiana, Richard V. Bennett, Duejean C. Garrett, Deputy Attys. Gen., Indianapolis, for appellant.

Michael C. Harris, Robert A. Welsh, Chesterton, for appellees.

JACKSON, Judge.

This is a condemnation action brought by the appellant to appropriate certain real estate owned by the appellees for the purpose of widening and improving U.S. Highway 12. Appellant filed its complaint in the Circuit Court of Porter County, Indiana, on September 30, 1966, which complaint, omitting formal parts, reads as follows:

'COMPLAINT FOR APPROPRIATION OF REAL ESTATE

NUMBER 1

The plaintiff, State of Indiana, complains of the above-named defendants, and says: That the plaintiff, acting through its legally organized and constituted Commission, known and designated as the Indiana State Highway Commission, is now engaged in the improvement of a certain public highway in Porter County, Indiana, said highway being known as Road No. U.S. 12 Project F--31(20), said highway being one of and a part of the State Highway System of the State of Indiana and the same is to be improved and maintained by said Highway Commission as a part of said State Highway System. That, under the plans of said Commission, now on file in its office, said highway is to be constructed, used and maintained by plaintiff, through said Commission, as a limited access facility as defined and authorized under the Act of the General Assembly of Indiana of 1945, Chapter 245, and subject to such regulations as therein provided as to access or use or to such subsequent regulations or use as may be made, adopted or provided by law governing such highways or highways in general.

NUMBER 2

That the defendants Nick Sovich and Doris Sovich (H&W) are the owners of certain real estate in said county in which is included the real estate hereby sought to be appropriated and condemned. Defendants' said real estate is described as follows:

A parcel of land in the fractional N 1/2 of Sec. 32, Twp. 37 N., R. 6 W. of the 2nd P.M., described as beginning at a point on the South line of the Dunes Highway, said point being located a distance of 2353.9 feet East and 1646 feet South of the Northwest corner of said Sec. 32, and running thence South 210 feet, more or less, to the Northerly line of a public highway; thence Northeasterly along the Northerly line of said highway to the intersection of said Northerly line with the South line of Dunes Highway; and thence West along said South line of Dunes Highway 308 feet, more or less, to the place of beginning, containing 0.75 of an acre, more or less, subject to all legal highways.

A parcel of Land in the W 1/2 of the NE 1/4 of Sec. 32, Twp. 37 N., R. 6 W. of the 2nd P.M., described as commencing at a point on center of Dunes Highway known as U.S. #12 and 903.06 feet West of the East line of said W 1/2 quarter section; thence South, parallel to said East line a distance of 214 feet to a point; thence South 67 degrees and 20 minutes West, a distance of 240 feet; thence at the internal angle of 89 degrees and 30 minutes Northwesterly a distance of 347.94 feet to a point on the center of said pavement; thence Easterly along the center and 2 degrees of curve line a distance of 353.3 feet to a point of beginning, containing 1.80 acres, more or less, subject to all legal highways.

NUMBER 3

Plaintiff is informed and verily believes that the defendants, Hobart Federal Savings and Loan Association, Bank of Indiana, Nat'l. Association, as Survivor of Gary Trust and Savings Bank; Continental Oil Company, a foreign corporation, claim and assert an interest in and to the real estate described in Paragraph 2.

Plaintiff alleges that ownership of the fee in and to the real estate is set forth in Phetorical Paragraph 2 and said defendants last above mentioned are made a party hereto, to answer as to any right, title or interest they may have in and to the real estate set forth in said Rhetorical Paragraph 2.

NUMBER 4

That for the purpose of improving said highway, it is necessary and proper that plaintiff take and appropriate under the powers vested in it by the General Assembly of the State of Indiana, the fee simple title to part of said tract of real estate described in Paragraph 2 herein. The part so sought to be appropriated and condemned is described as follows:

Sheet 1 of 3

Project F--31(20)

Parcel 3 in Fee-limited Access

A parcel of land in the fractional N 1/2 of Sec. 32, Twp. 37 N., R. 6 W. of the 2nd P.M., described as beginning at a point on the south line of the Dunes Highway, said point being located a distance of $2,353.9 feet east and 1,646 feet south of the northwest corner of said sec. 32, and running thence south 210 feet, more or less, to the northerly line of a public highway; thence northeasterly along the northerly line of said highway to the intersection of said northerly line with the south line of Dunes Highway; and thence west along said south line of Dunes Highway 308 feet, more or less to the place of beginning, containing 0.75 of an acre, more or less.

Jimmy D. Hufford

Registered No. 11243

State of Indiana

Land Surveyor

/s/ Jimmy D. Hufford

Sept. 26, 1966

Sheet 2 of 3

Project F--31(20)

Parcel 3A in Fee-limited access

A part of the west half of the northeast quarter of Section 32, Township 37 North, Range 6 West, Porter County, Indiana, described as follows: Beginning at the intersection of the existing south boundary of U.S.R. 12 (Dunes Highway) and an east line of the owners' lands, which said east line is parallel with and 903.06 feet westerly of the east line of said half-quarter section; thence southerly 183.02 feet along said east line of the owners' lands; thence northwesterly 268.04 feet along an arc to the right and having a radius of 3,404.04 feet and subtended by a long chord having a bearing of north 86 degrees 26 minutes 40 seconds west and a length of 267.97 feet to a southwestern line of the owners' lands; thence northwesterly 194.76 feet along said southwestern line to the existing south boundary of U.S.R. 12; thence easterly 345.33 feet along said south boundary to the point of beginning and containing 1.185 acres, more or less.

Jimmy D. Hufford

Registered No. 11243

State of Indiana

Land Surveyor

/s/ Jimmy D. Hufford

Sept. 26, 1966

SHEET 3 of 3

Project F--31(20)

Parcel 3 IN FEE-LIMITED ACCESS

TOGETHER with the permanent extinguishment of all rights and easements of ingress and egress to, from, and across the limited access facility (to be known as U.S.R. 12 and as Project F--31(20) to and from the owners' abutting lands. This restriction shall be a covenant running with the land and shall be binding on all successors in title to the said abutting lands.

JIMMY D. HUFFORD

Registered No. 11243

State of Indiana

Land Surveyor

/s/ Jimmy D. Hufford

Sept. 26, 1966

A blue-print sketch plat of the above described real estate sought to be appropriated and identified by means of cross-hatched lines is attached hereto and made a part hereof and designated as Exhibit 'A'.

NUMBER 5

That the residue of said real estate described in Paragraph 2, and owned by the above-named defendants, will be benefited by said proposed improvement of said road as alleged herein.

NUMBER 6

That prior to the bringing of this action the plaintiff, through the said Indiana State Highway Commission, made an effort to purchase said real estate described in Paragraph 4 from the above-named owners, but that the plaintiff and said owners have been unable to agree as to the purchase price thereof, or as to the amount of damages, if any, sustained by said defendants by reason of the appropriation of said real estate for the use hereinbefore stated.

NUMBER 7

That prior to the bringing of this action, the said Indiana State Highway Commission adopted a resolution setting forth the description of said real estate sought to be acquired by it, as above set forth, which said resolution alleged and set forth that said real estate herein sought to be condemned was necessary for the carrying out of said highway improvement project and directed that condemnation proceedings therefore be instituted by the Attorney General in the name of the State of Indiana.

NUMBER 8

That said highway so to be improved extends from the Illinois-Indiana state line in Lake County proceeding around Lake Michigan through Lake, Porter and LaPorte Counties and terminating at the Indiana-Michigan state line in LaPorte County. THAT THE COURSE AND TERMINI OF THE PARTICULAR PROJECT INVOLVED IS AS FOLLOWS: Beginning at a point near the centerline of existing U.S. Route 12 approx. 2,500 feet East of the west line of Section 32, Township 37 North, Range 6 West and extending Northeasterly a distance of approx. 8,600 feet to a point near the centerline of existing U.S. Route 12 approx. 4,300 feet East of the west line of Section 28, Township 37 North, Range 6 West all in Porter County, in Porter County, State of Indiana, and said right of way is to be 250 feet wide, excepting where additional width may be required for construction purposes.

NUMBER 9

That the plaintiff, through said Indiana State Highway Commission, intends to use the real estate herein sought to be condemned for the purpose of the improvement of said highway and the widening thereof, and said real estate as herein described is necessary and proper for the carrying out of said work, and said real estate when obtained will be used for such purpose.

NUMBER 10

WHEREFORE, the plaintiff prays that three disinterested freeholders of said county be appointed to appraise the value of the real estate sought to be condemned, and to fix...

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    ...from a depression in property value caused by a prior announcement that it will be taken for a public project"); State v. Sovich, 253 Ind. 224, 252 N.E.2d 582, 588 (1969) (holding that neither increase nor decrease in value precipitated by knowledge of government project is to be considered......
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    ...such values the project itself, * * *.' We see no error in the court's having overruled this motion. Landowner cites State v. Sovich (1969), 253 Ind. 224, 252 N.E.2d 582 to support his motion, but that case involved a valuation of land taken, not the before and after value of the residue. T......
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