Vandalia Coal Company v. Indianapolis & Louisville Railway Company

• Decision Date: 07 February 1907
• Docket Number: 20,941
• Citation: 79 N.E. 1082,168 Ind. 144
• Court: Indiana Supreme Court
• Parties: Vandalia Coal Company et al. v. Indianapolis & Louisville Railway Company

79 N.E. 1082

168 Ind. 144

Vandalia Coal Company et al. v. Indianapolis & Louisville Railway Company

No. 20,941

Supreme Court of Indiana

February 7, 1907

From Greene Circuit Court; Orion B. Harris, Judge.

Condemnation proceedings by the Indianapolis & Louisville Railway Company against the Vandalia Coal Company and another. From a preliminary order appointing appraisers, defendants appeal.

Affirmed.

Barrett & Barrett, Byron K. Elliott, William F. Elliott and Willis Hickam, for appellants.

E. C Field, H. R. Kurrie and W. V. Moffett, for appellee.

OPINION

Montgomery, C. J.

Appellee instituted this proceeding to condemn and appropriate a right of way across a forty-acre tract of land owned by appellant Vandalia Coal Company, in Greene county. Appellants appeared and filed objections or answers, and a cross-complaint, all of which, upon appellee's motion, were stricken out. The court thereupon appointed appraisers, and from this order the appeal was taken.

Errors have been properly assigned alleging that the complaint does not state facts sufficient to constitute a cause of action, and that the court erred in striking out appellant's several objections and cross-complaint.

The sufficiency of the complaint was not questioned in the lower court, and it will therefore be held sufficient against the present attack, unless some essential element is wholly omitted from its averments. Thompson v. Jordan (1905), 164 Ind. 551, 73 N.E. 1087; City of South Bend v. Turner (1901), 156 Ind. 418, 54 L. R. A. 369, 83 Am. St. 200, 60 N.E. 271.

The complaint averred (1) the name of the corporation desiring to condemn, (2) the name of the owner and of the holder of the lien upon the property to be appropriated, (3) the intended use of the property, (4) the location, width and termini of the right of way, (5) a specific description of the land from which dirt was to be taken for making the embankment, and (6) that appellee had been unable to agree with the owner for the purchase of such property and rights. The averments of the complaint closely follow the statutory requirements and are clearly sufficient. Acts 1905, p. 59, § 2, § 894 Burns 1905.

Section five of said act of 1905 (§ 897 Burns 1905) provides: "Any defendant may object to such proceeding on the ground that the court has no jurisdiction either of the subject-matter or of the person, or that the plaintiff has no right to exercise the power of eminent domain for the use sought, or for any other reason disclosed in the complaint or set up in such objections; * * * and no pleadings other than the complaint and such statement of objections shall be allowed in such cause, except the answer provided for in section eight of this act."

The statute upon which this proceeding is founded was construed in the case of Morrison v. Indianapolis, etc., R. Co. (1906), 166 Ind. 511. We quote from the opinion in that case, as pertinent to the question in controversy, the following language: "The legislature, by the provisions of section five, intended that there should be what may be termed a preliminary hearing by which the landowner might controvert the right of the plaintiff in the proceedings to condemn and appropriate his lands and therefore have all such questions determined and disposed of by the judge in vacation, or the court in term time, as the case might be, before making the interlocutory order appointing appraisers to assess damages. In the language of the notice or summons provided by section three, such owner is required to appear on the day fixed and show cause why his property should not be condemned, as prayed for in the complaint. At what time, then, and by what method, is he required to show cause in opposition to the plaintiff's asserted right to condemn his lands under the proceedings? The answer to this must be: At the time he is required to appear before the judge or court, and by the method or procedure prescribed by section five, namely, by filing his written objections. By entering an interlocutory order or decree the court or judge thereby determines the legal right of the plaintiff to appropriate the property of the landowner for the purpose or use set out or assigned in the complaint. * * * The language, 'for any other reason disclosed in the complaint or set up in such objection,' compels the conclusion that the written objections as prescribed are of a dual character and are intended to serve the purpose of a demurrer and also a plea or answer. * * * Manifestly the object or purpose of the latter provision is intended to perform the office not of a demurrer, but of a plea or answer, by permitting the defendant to traverse the complaint by setting up facts which will be sufficient to abate the action or to break down or defeat the right of the plaintiff to condemn and appropriate the property in question. To this extent it may be said that the written objections tender an issue of fact which must be determined at the preliminary hearing, not by a jury, but by the judge or court before whom the proceedings are pending."

Appellants filed objections or answers in six paragraphs, and also a cross-complaint. The first paragraph of such objections alleged that appellant coal company is a New Jersey corporation and the owner of all the coal clay, minerals and mineral substances underlying a tract of land particularly described, containing 1,104 acres, 395 acres of which said appellant owns in fee simple; that all of said land is underlaid with strata of valuable coal; that said appellant owns the right to select and purchase sites for sinking shafts for the mining of such coal and minerals, and for supplying air and for the discharge of water, and the right to use so much of the surface of said lands as may be required, not exceeding five acres in any one tract, for the location of tipples and buildings, and for the storage of refuse and other materials, and the right to locate, construct and operate railroad switches across said lands, and a right of way for a wagon road to said mines, and a right of drainage; that the forty-acre tract across which appellee is seeking to condemn a right of way is substantially in the center of said coal lands; that said appellant has already constructed and equipped, and has in operation, two valuable coal shafts on said lands, and at great expense has laid out a system of mining all of said lands in one body; that appel...