The Midland Railway Company v. Smith
| Decision Date | 18 September 1890 |
| Docket Number | 14,396 |
| Citation | 25 N.E. 153,125 Ind. 509 |
| Parties | The Midland Railway Company v. Smith |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Jan. 14, 1891.
From the Hamilton Circuit Court.
Judgment affirmed, with costs.
H Crawford, T. J. Kane and T. P. Davis, for appellant.
R. R Stephenson and W. R. Fertig, for appellee.
In August, 1885, Smith made application in pursuance of sections 906-909, R. S. 1881, for a writ for the assessment of damages, alleging that the railway company had located, and was about to proceed with the construction of, its road across his land without having made or tendered any compensation for the accruing damages, and without having taken any steps to have the amount of compensation assessed or fixed by agreement.
A former judgment for damages in pursuance of the application thus made was reversed, because the description of the land appropriated, as required by the statute, was not sufficiently precise. Midland R. W. Co. v. Smith, 109 Ind. 488, 9 N.E. 474.
The court below, in obedience to the mandate in the above case, granted leave to amend the description of the land appropriated, as the same was set forth in the application and writ. There was no error in this. There was no change in the location of the road. The amendment simply furnished a correct description of the land upon which the road was actually located and graded. Proceedings such as this are amendable in matters of description so long as they remain in fieri. Steele v. Hanna, 117 Ind. 333, 20 N.E. 237; Winship v. Crothers, 20 Ind. 455. We can not assume that the sheriff's jury did not examine the land actually described in the amended application and writ. Indeed, the record shows that the amendment did nothing more than to make the application and writ conform to the description as contained in the verdict of the jury.
The appellant complains that the court erred in permitting the appellee to file exceptions to the award made by the sheriff's jury, after the case had been returned from this court. At the former hearing the railway company alone had exceptions upon the record. Subsequently the appellee was permitted to file exceptions to the award, on the ground that the amount of damages assessed by the sheriff's jury was too low.
The appellant insists that no exceptions can be filed after the expiration of ten days from the making of the award. Section 3907, R. S. 1881, limits the time within which exceptions may be filed by either party to the award of appraisers to ten days after the filing of the award, but as we have seen the present proceeding was instituted under the statute which regulates the assessment of damages by an inquest to be held by the sheriff. This latter statute provides, in effect, that issues of law and fact may be made and tried, and proceedings taken as in other actions, after the return of the inquest to the court by the sheriff. Section 896, R. S. 1881. Conceding that the two statutes, so far as they relate to the same subject, are to be construed in pari materia, and the conclusion follows, according to the settled interpretation of these statutes, that where exceptions are filed by either party within ten days after the filing of the award or inquest, an appeal is thereby effected, and the case then stands for amendment or for the filing of additional exceptions, or the making of new issues the same as any other civil action. Swinney v. Ft. Wayne, etc., R. R. Co., 59 Ind. 205; McMahon v. Cincinnati, etc., R. R. Co., 5 Ind. 413.
An appeal having been effected within ten days by the filing of exceptions, it was not error to permit the appellee to file exceptions to the amount of damages awarded after the expirations of ten days. A party to a proceeding for the assessment of damages might be quite content to forego the expense and vexation of an appeal notwithstanding the damages might seem inadequate or excessive, as the case may be. If, however, his adversary files exceptions and takes an appeal, we can discover no good reason why the appellee may not then also file exceptions and make issues of law or fact as in other cases.
It is contended next that the facts stated in the application show that the land owner was not entitled to a writ for the assessment of his damages, because it appears therefrom that he had permitted the company to enter upon and appropriate his land under an agreement that the company should not acquire the title until compensation had been made for the land. The argument is that an owner of land, who voluntarily permits...
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