State v. Trotter

• Decision Date: 28 April 1938
• Docket Number: 26921.
• Parties: STATE v. TROTTER et al.
• Court: Indiana Supreme Court

14 N.E.2d 550

214 Ind. 68

STATE v. TROTTER et al.

No. 26921.

Supreme Court of Indiana

April 28, 1938

Appeal from Boone Circuit Court; John W. Hornaday Judge.

Omer S. Jackson, Atty. Gen., and Caleb J. Lindsay Asst. Atty. Gen (Adney & Adney, of Lebanon, and Frank E. Martindale Asst. Atty. Gen., of counsel), for the State.

Means & Buenting and Robinson, Symmes & Melson, all of Indianapolis, Edgar M. Blessing, of Danville, and Rogers & Smith and Parr, Parr & Parr, all of Lebanon (R. E George, of Indianapolis, of counsel), for appellees.

FANSLER, Judge.

This is an action under the eminent domain statute to condemn 12.88 acres of farm land for highway purposes. There was a trial and judgment for the appellees for $13,600. The verdict of the jury was $11,000, but before trial an agreement was made between the parties concerning the tile drainage system on the farm and the drainage system to be installed in the highway to be constructed, and it was agreed and stipulated that damage to the drainage system on the farm was not to be treated as an element of damages in the trial before the jury, but that $2,600 should be added to any verdict rendered by the jury to cover this item of damage.

Error is assigned upon the overruling of appellant's motion for a new trial.

The appellees' farm consists of 350 acres, triangular in shape, with public highways on two sides. The third side is paralleled by a steam railroad, and the land sought to be condemned adjoins the railroad, and lies, partly at least, upon ground formerly occupied by an electric interurban railroad. Thus when the highway, for which the land involved is appropriated, is completed there will be public highways on all sides of appellees' farm. Appellees use their farm, principally at least, in raising turkeys. The appellees were permitted to prove, over objection, that 650 turkeys had been stolen from the farm in 1935, and witnesses were permitted to give their opinion that the liability to theft would be increased by the building of the highway. It is appellees' theory that a new and improved highway adjacent to the farm will make it more accessible to the public; that there will be more opportunity to steal turkeys; that their loss by reason of theft will be greater; and that consequently their farm has been made less valuable. Increased danger of theft by reason of the building of a highway or railroad is too remote and speculative for consideration as an element of damages to land. The admission of this evidence was erroneous. Indianapolis & Cincinnati Traction Co. v. Larrabee et al., 1907, 168 Ind. 237, 80 N.E. 413, 10 L.R.A.,N.S., 1003, 11 Ann.Cas. 695; Indianapolis & W. R. Co. v. Branson et al. 1909, 172 Ind. 383, 86 N.E. 834, 88 N.E. 594, 19 Ann.Cas. 925; Elliott on Railroads, 3d Ed., Vol. 2, § 1254, p. 825; Kansas City & E. R. Co. v. Kregelo, 1884, 32 Kan. 608, 5 P. 15; Yazoo & M. V. R. Co. v. Jennings et al., 1907, 90 Miss. 93, 43 So. 469, 122 Am.St.Rep. 312.

There was also testimony concerning the cost of watchmen to prevent theft. The appellees were permitted to prove that turkeys were of such a nature that they would leave their food and follow visitors around, and that after they had been disturbed by people it would take two or three days for them to recover and again eat properly; that the building of the highway in question would make it necessary to build a commercial fence 9 feet high along the road at a cost of $7,000 in order to keep trespassers out, and another ordinary fence 300 feet inside the commercial fence in order to keep the turkeys away from the highway so that they would not be disturbed in their feeding. The admission of this latter evidence is not assigned as error, but it must have been admitted upon the same theory as the evidence objected to, and the appellant was not required to save the question as to all evidence of the character involved.

It is clear from the theory upon which the case was tried that the jury must have been influenced by a consideration of this evidence, involving as it did speculative and insubstantial matters concerning the effect upon the feeding of turkeys and their liability to theft. The appellant tendered several instructions upon the subject, which were refused.

A number of instructions were tendered by the appellant to the effect that, in fixing the damage...