Toledo & Chicago Interurban Railway Co. v. Wagner

• Decision Date: 20 November 1908
• Docket Number: 21,167
• Citation: 85 N.E. 1025,171 Ind. 185
• Court: Indiana Supreme Court
• Parties: Toledo & Chicago Interurban Railway Company v. Wagner et al., Executors

85 N.E. 1025

171 Ind. 185

Toledo & Chicago Interurban Railway Company v. Wagner et al., Executors

No. 21,167

Supreme Court of Indiana

November 20, 1908

From Noble Circuit Court; Joseph W. Adair, Judge.

Condemnation proceeding by the Toledo & Chicago Interurban Railway Company against Walter C. Wagner and another, as executors of the will of J. William Wagner, deceased. From a judgment for defendants, plaintiff appeals.

Reversed.

Taylor Woods & Willson, F. L. Welsheimer and L. W. Welker, for appellant.

John W Baxter, Luke H. Wrigley and R. W. McBride, for appellees.

OPINION

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, 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 not actually taken and occupied.

The damages recoverable in condemnation cases are: (1) The value of the land actually taken, and the improvements thereon, and (2) all damages to the residue of the property, resulting from the taking out of the land the tract appropriated. § 934 Burns 1908, Acts 1905, p. 62, § 6. As elements of damage thus resulting to the residue, it has been many times decided by this court, in railroad cases, that all injuries to the freehold, arising from a skilful 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 pasture; the destruction of surface-water drains; the increased distances of travel from one part of the farm to another in transacting the farm business, and other matters of like import. New Jersey, etc., R. Co. v. Tutt (1907), 168 Ind. 205, 80 N.E. 420; Indianapolis, etc.,...