Toledo & C.I. Ry. Co. v. Wagner

• Decision Date: 20 November 1908
• Docket Number: No. 21,167.,21,167.
• Citation: 171 Ind. 185,85 N.E. 1025
• Parties: TOLEDO & C. I. RY. CO. v. WAGNER et al.
• Court: Indiana Supreme Court

171 Ind. 185

85 N.E. 1025

TOLEDO & C. I. RY. CO.

v.WAGNER et al.

No. 21,167.

Supreme Court of Indiana.

Nov. 20, 1908.

Appeal from Circuit Court, Noble County; J. W. Adair, Judge.

Condemnation proceedings by the Toledo & Chicago Interurban Railway Company against Walter C. Wagner and Clara Wagner, executor and executrix, respectively. From a judgment for defendants, the railway company appeals. Reversed and remanded, with instructions to grant a new trial.

F. L. Welsheimer and L. W. Welker, for appellant. Luke H. Wrigley and Robt. W. McBride, for appellees.

HADLEY, J.

In a condemnation proceeding, instituted by appellant against appellees, the court instructed the jury concerning appellees' damages, that: “(1) The law does not permit the taking of property by a railroad corporation for right of way purposes without compensating the owner for the full value of the property taken, and the full amount of the damage, if any, that results from the taking of such property. In fixing the amount the defendant shall recover in this action, you may award him such an amount as will fully compensate him for the value of the property taken, and the damages, if any, resulting therefrom, and that will leave him, so far as values are concerned, in as good and favorable a situation as he was in before the appropriation. (2) In determining the amount of damages, if any, that shall be awarded to the defendant, you should consider the amount, if any, which the tract of land of which the property taken is a part, was reduced in value by the appropriation and use of the lands by the plaintiff; that is, you may consider not only the value of the part taken, but also the extent to which the value of the balance of said tract was reduced, if any, by the taking, as shown by the evidence, and the inconveniences and annoyances, if any, resulting therefrom.” Appellant insists that these instructions authorize a return of double compensation to appellees, in so far as they relate to the damages that may be awarded for the injurious effects the appropriation may have had upon that portion of appellees' property, or farm, not actually taken and occupied.

The damages recoverable in condemnation cases are: (1) The value of the land, and improvements thereon, of the parcel actually taken, and (2) all damages to the residue of the property, or farm, resulting from the taking out of the land the tract appropriated. Acts 1905, p. 62, c. 48, § 6. As elements of damage thus resulting to the residue, it has been many times decided by this court, in railroad cases, that all damage and injuries to the freehold, arising from a skillful construction and operation of the railroad, that have an actual foundation, and are capable of being ascertained and reasonably estimated, are recoverable-such, for instance (when such things occur), as separating the farm into parts; the destruction, or diversion, of springs; the imposed necessity of driving animals to and from water and...