State v. Stabb
| Decision Date | 21 May 1948 |
| Docket Number | 28360. |
| Citation | 79 N.E.2d 392,226 Ind. 319 |
| Parties | STATE v. STABB et al. |
| Court | Indiana Supreme Court |
Appeal from Marion Circuit Court; Lloyd D. Claycombe, Judge.
Cleon H. Foust, Atty. Gen., and Connor D. Ross, Deputy Atty. Gen for appellant.
Ralph B. Gregg and Donald M. Ream, both of Indianapolis, for appellee.
The appellant, on behalf of the State Highway Commission, filed this cause against the appellees for the appropriation of a parcel of real estate for the construction of the highway known as the Circum -Urban Highway, which extends from U. S. Highway 52 to Shadeland Avenue, Marion County, Indiana. This improvement involved the widening of existing highways.
The appellant has joined Bankers Trust Company as an appellee herein. The record discloses that this cause was dismissed as to said Company in the trial court; this appeal is therefore, dismissed as to it.
The remaining appellees, Albert J. Stabb and Lula P. Hooper Stabb, at all times mentioned herein, were husband and wife. The involved real estate was used by them as their residence and upon which they also operated a retail store and gasolene station.
Appraisers under the order of appropriation, were appointed who filed their report fixing damages in the sum of $12,500. Appellees filed their exceptions to this appraisement and were awarded a jury trial which resulted in a verdict in favor of the appellees in the sum of $18,000 upon which judgment was rendered. It is from this judgment this appeal was taken.
Each of the rulings on the giving or refusal of certain instructions and the admission of certain evidence, as hereinafter set out, was specified as a reason for asking for a new trial.
It was not error, as claimed by the appellant, to permit the appellee, Lula P. Hooper Stabb, to testify as to how many gallons of gasolene a year had been sold on the involved premises and as to the annual volume of business done at the store located thereon. This evidence was properly admitted to prove that the property appropriated was suitable for business purposes; it was also competent for its bearing on damages due to loss of business.
Appellant next urges that it was improper to permit the witness, Frank E. Gates, to answer a question as to a certain provision in an ordinance relating to a building line. No error could possibly have been committed by this ruling as the witness answered that he did not know.
Appellant has presented no question as to the admission in evidence of a certain bank check as part of the cross examination of appellant's witness, George T. Wheldon, as appellant's objection thereto was not sufficiently specific; furthermore, if it was error to admit this check, the same was harmless.
It was not error for the Court to refuse the appellant's tendered instructions Nos. 7, 8, 9, 10 and 11. Each of these instructions requested the Court to instruct the jury that the benefits conferred by the improvement, if any, to the residue of the lands of the owner, could be considered as determining the question of compensatory damages, all as provided by § 3-1706 Burns' 1933, 1946 Replacement. The refusal to give each of these instructions was proper as there was a total lack of evidence as to what, if any, benefits from the improvements were conferred upon any lands herein involved which were not condemned.
The appellant complains of the Court's refusal to give its tendered instruction No. 13. This offered instruction was to the effect that the appellees were not entitled to recover for any loss of business or profits; and that if any evidence had been introduced tending to prove such loss of business or profits, the jury should disregard the same in rendering its verdict.
As heretofore pointed out, the appellees introduced evidence as to how many gallons of gasolene a year had been sold on the involved premises and the annual volume of business done at the store located thereon. Appellees also produced evidence that by reason of the loss of their business they had suffered damages in the sum of not less than $3,000.
Section 3-1706 sets out the measure of damages in an action of this kind. The first three clauses of this section provide the measure of damages to be followed shall be the fair market value of the land appropriated, the fair market value of the improvements on the land taken, and, lastly, the damages, if any, to the residue of the land caused by the taking out of the part sought to be appropriated.
The fourth clause of said section so defining the measure of damages is in words as follows:
It is generally held that no damages should be allowed in a case of this kind for the loss of business, good will or profits from the business where only the land and not the business is being taken unless the statute under which the proceedings is had provides for such an element of damage. See 18 Am.Jur., Eminent Domain §§ 259, 261; 29 C.J.S. Eminent Domain § 162; Mitchell v. United States, 1924, 267 U.S. 341, 45 S.Ct. 293, 69 L.Ed. 644; 2 Lewis, Eminent Domain (3rd Ed.) § 727; 41 A.L.R. 1026 Note.
In order to determine, therefore, whether it was error to refuse this tendered instruction it is necessary to interpret the meaning of the fourth clause above set out. Appellant argues the clause is not applicable to the appellees. With this contention we cannot agree. When our legislature used the words ' any person or corporation' (our italics) they were using the broadest language possible and intended to include all persons suffering consequential damages. Nor can we agree with the appellant's further contention that this clause limits compensation to the value of the property taken and the improvements thereon, and the damages to the residue. Clauses one, two and three of this section cover all the damages sustained by the property taken and the residue; therefore, clause four must refer to damages other than damages to the property involved. It includes any direct consequential damages suffered by any person due to the construction of the improvement.
Our interpretation of clause four that damage and compensation are not limited to the fair market value of the property taken, and the improvements thereon, and the damages to the residue, is further borne out by the last provisions of said § 3-1706 which provides:
'For the purpose of assessing compensation and damages, the right thereto shall be deemed to have accrued at the date of the service of the notice provided in section three (§ 3-1703), and its actual value, at that date, shall be the measure of compensation for all property to be actually taken and the basis of damages to property not actually taken but injuriously affected, except as to the damages stated in the fourth clause hereof.' (Our italics)
In examining the statutes of our sister states which provide for items of damage other than damage for the real estate taken and to the residue thereof, we find that some are special statutes expressly providing for compensation for injury to business, and others, like ours, for damages for any and all detriment which may be directly occasioned by the taking; and that in most jurisdictions these particular provisions have been liberally interpreted. See Mitchell v. United States, supra, and City of Oakland v. Pacific Coast Lumber & Mill Co., 1915, 171 Cal. 392, 153 P. 705, for a discussion of these statutes.
In so interpreting this fourth clause we are aware...
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