The Ohio Valley Railway and Terminal Company v. Kerth

• Decision Date: 17 February 1892
• Docket Number: 15,343
• Citation: 30 N.E. 298,130 Ind. 314
• Parties: The Ohio Valley Railway and Terminal Company v. Kerth
• Court: Indiana Supreme Court

30 N.E. 298

130 Ind. 314

The Ohio Valley Railway and Terminal Company v. Kerth

No. 15,343

Supreme Court of Indiana

February 17, 1892

From the Vanderburgh Circuit Court.

The judgment affirmed, with costs.

D. B Kumler, A. Gilchrist and C. A. De Bruler, for appellant.

P Maier, J. S. Buchanan, C. Buchanan and P. W. Frey, for appellee.

OPINION

Olds, J.

This was a proceeding to condemn a strip of appellee's land for appellant's right of way, under the statute providing for the condemnation of land for such purpose.

An instrument of appropriation was properly filed, and thereupon appraisers were appointed by the Vanderburgh Circuit Court and the appraisers made their appraisement, assessing appellee's damages at $ 1,000.

Exceptions were filed by appellee. There was a trial in the circuit court, and a verdict was returned in favor of appellee for $ 2,325.

Appellant filed a motion for a new trial, which was overruled, and exceptions reserved, and judgment rendered upon the verdict.

The only error assigned is the overruling of appellant's motion for a new trial.

The first question presented by the motion for a new trial and discussed by counsel, is the ruling of the court in admitting in evidence a map of appellee's land through which the railroad is located, and a portion of which is condemned for right of way.

The appellee owned a tract of land a half mile long and three hundred and twenty feet wide. The right of way sought to be condemned was forty feet wide, running diagonally across the strip of land a distance of something over seven hundred feet, and occupying less than one acre.

Appellee's land is situate three-eights of a mile from the corporation line of the city of Evansville. It is bounded on each end by two of the main roads into the city. Lying between the corporation line and appellee's land is a platted addition to the city of Evansville, which is one-quarter of a mile in width and about a half mile in length, and lying adjacent to the corporation line. This platted addition is called Auburn. The streets in this addition are platted to correspond with the streets within the city limits, are an extension of the same, and bear the same names as the streets within the corporate limits. This addition is regularly platted, and some buildings are upon it.

Between the addition of Auburn and appellee's land is a strip of unplatted land one-eighth of a mile wide. Appellee had a plat made of Auburn, the strip of land between Auburn and appellee's land, and of his own land, showing it all as platted into lots and an extension of the streets of the city across the lands of the appellee.

Appellee contended that his land was so situated that, in the ordinary growth of the city of Evansville, it would be needed, and would necessarily soon become a part of the residence portion of the city; that it was so situated that its location and quality of soil made it valuable to be platted as a part of said city; that the land was valuable for the purpose of being platted as a part of the city, as the usual and ordinary growth of the city would justify it; and for the purpose of showing the adaptability of the land for the purpose of platting the same as an addition to the city, the appellee offered in evidence the map which he had prepared, showing how it would divide into lots of certain dimensions without waste, and at what points and in what manner the streets of the city would extend through it. Instead of endeavoring to have witnesses explain to the jurors its adaptability for platting as an addition to the town, how many lots it could be divided into, and the location of the streets, and alleys, the appellee sought to place before the jury a profile of the land platted by actual measurement, showing how it could be platted, the number and size of the lots, the location of the streets and alleys.

It was not contended that the land was platted, or that the appellee was entitled to recover for it as platted land, but it was contended that one element of value that the tract of land had was its location in close proximity to a large and growing city, and its susceptibility to be platted and used as residence property made it more valuable than it otherwise would be.

We think the admission of the plat in evidence was clearly proper. In the case of Boom Co. v. Patterson, 98 U.S. 403, 25 L.Ed. 206, the court says: "So many and varied are the circumstances to be taken into account in determining the value of property condemned for public purposes, that it is perhaps impossible to formulate a rule to govern its appraisement in all cases. Exceptional circumstances will modify the most carefully guarded rule; but, as a general thing, we should say that the compensation to the owner is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future."

This rule clearly authorizes the jury to take into consideration the value of the land to be platted as an addition to the city of Evansville now or in the immediate future, and it was proper for the appellee to show its adaptability for that purpose, and this could be more clearly demonstrated by the use of a map or plat made from...