Terre Haute and Logansport Railroad Co. v. Crawford

• Decision Date: 20 February 1885
• Docket Number: 11,019
• Citation: 100 Ind. 550
• Parties: The Terre Haute and Logansport Railroad Company v. Crawford et al
• Court: Indiana Supreme Court

100 Ind. 550

The Terre Haute and Logansport Railroad Company v. Crawford et al

No. 11,019

Supreme Court of Indiana

February 20, 1885

From the Cass Circuit Court.

The judgment is affirmed with costs.

D. B McConnell, R. Magee, S. T. McConnell, D. D. Dykeman, W. T Wilson and G. C. Taber, for appellant.

J. C Nelson and Q. A. Myers, for appellees.

OPINION

Howk, J.

On the 23d day of October, 1882, the appellees were the owners of a certain tract or lot of land, containing nearly eight acres, lying within the corporate limits of the city of Logansport, in Cass county. About the same date, the appellant deposited in the clerk's office of the court below a written instrument of appropriation, wherein it proposed to appropriate all the right, title and interest of the appellees in and to a strip of such land, fifty feet in width and extending through the land on a slight curve, the same width, four hundred and seventy-six and one-half feet in length, for the purpose of constructing, maintaining and operating thereon the main track of an extension of appellant's railroad, etc. Appraisers were duly appointed to appraise the damages which the appellees would sustain by reason of such appropriation of their land, and such appraisers made due return to the clerk of the court below of their appraisement of appellees' damages, setting forth therein that the value of the land taken by the appellant was $ 200, and that the residue of the land would be damaged in the further sum of $ 200. Written exceptions to the appraisers' award of damages were filed both by the appellees and the appellant, and the issues of fact arising thereon were submitted to a jury for trial. A general verdict was returned for the appellees, assessing their damages, by reason of appellant's appropriation of their land, at the sum of $ 1,250; and with such verdict the jury also returned into court their special findings on particular questions of fact, submitted to them by the parties under the direction of the court. Over the appellant's motion for a new trial, the court rendered judgment against it, in appellees' favor, for the damages assessed and costs.

In this court, error is assigned by the appellant, which calls in question the decision of the trial court in overruling its motion for a new trial. In this motion, a large number of causes were assigned for such new trial, but of these we will consider such only as the appellant's counsel have discussed in their elaborate briefs of this case. In their statements of this cause, as preliminary to the first matter of which they complain, the appellant's counsel say: "It will be seen from an examination of the record, that the land in controversy lies in the northeastern portion of the city of Logansport, in a body of about eight acres; that appellant's right of way runs in an eastern direction, in a very slight curve, across the south side of the tract, cutting off and separating from the main tract about one-half of an acre; that when appellant's track is completed to grade, there will be an embankment from west to east, between appellees' land and the main portion of the city of Logansport, about three feet high at the west line of appellees' land, and rising by an ascending grade until it is nearly five feet high at the east line of their land, on the west line of Michigan avenue, thus leaving on the north side of the appellant's track about two acres, possibly three acres, of appellees' land that will be from three to five feet lower than the surface of appellant's track." Of the foregoing statement, the appellees' counsel say: "We believe that the appellant has, in its brief, stated correctly the character of the construction of the road through appellees' land; that the line of the road is on a curve, with a gradually ascending grade from west to east, making a fill the entire distance of four hundred seventy-six and one-half feet, averaging from three to six feet in height. None of the land was low, flat, swampy or wet, before the location and construction of the road. That part, about which the witnesses testify it will be necessary to fill, was high and dry with a gradual ascent to the north, only suitable and valuable for residence purposes. * * * The jury further find, as a fact, that after the location of the road, before these lands could be used for building purposes, it would be necessary to fill them up."

With these statements of the respective counsel before us, we come now to the consideration of the first alleged error of law occurring at the trial, of which complaint is made in argument by appellant's counsel, namely, that, "as a measure of the appellees' damages resulting to them by reason of the appellant's appropriation of their land, the court allowed appellees to offer and give testimony tending to prove the cost of filling up of those low lands, over the appellant's objections." The point is made by appellees' counsel, and it seems to us to be sustained by the record, that the appellant saved no exceptions to the rulings of the court in the admission of this evidence; that the court was not requested by the appellant to instruct the jury to disregard such evidence, and that particular questions of fact, depending for their answer upon this evidence, without any objection thereto by the appellant, were submitted by the court to and answered by the jury. In this state of the record, the appellees' counsel earnestly insist that the appellant's objections to the admission of evidence tending to prove the cost of filling up the appellees' land, which was lower than the embankment of the railroad, as a measure or, rather, as an element of the appellees' damages resulting to them by reason of the appellant's appropriation of their land, come too late when made in this court for the first time, and can not be considered as affording any sufficient ground for the reversal of the judgment.

In their first brief of this cause, the appellant's counsel next complain in argument of the following instruction to the jury, given at appellees' request: "The question submitted to you is one of damages, arising from the appropriation of the lands of certain persons named in the article of appropriation. In determining this question, it is proper for you to consider the value of the land actually taken, at the date of the appropriation, the effect upon and injury, if any, caused to the remainder of the land by the appropriation, the cost, if any, the construction will occasion to the owners in rendering...