Weldon v. State

• Decision Date: 07 March 1972
• Docket Number: No. 770S144,770S144
• Citation: 279 N.E.2d 554,258 Ind. 143
• Parties: John J. WELDON et al., Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 554

279 N.E.2d 554

258 Ind. 143

John J. WELDON et al., Appellants, v. STATE of Indiana, Appellee.

No. 770S144.

Supreme Court of Indiana.

March 7, 1972.

Rehearing Denied April 24, 1972.

John M. Kitchen, Rauch, Chase & Kitchen, Indianapolis, for appellants.

Theodore L. Sendak, Atty. Gen. of Indiana, William F. Thompson, Deputy Atty. Gen., for appellee.

ARTERBURN, Chief Justice.

This is a condemnation proceeding in which the State sought to take for highway purposes a portion of parcel Number 1 (1.533 acres), owned by John J. Weldon and his wife Jean, and Mrs. Jeannette Fishbein Rauh. After the report of the appraisers, exceptions were filed by both the state and the defendant-owners at the time. The appellants herein, Stephen A. Radford and his wife Elsie, seek to intervene as part owners of parcels number 2 and 3. The other part owners of parcels 2 and 3 were the Weldons and Mrs. Rauh. As previously stated, parcel number 1 was owned solely by the Weldons and Mrs. Rauh. The Radfords, appellants herein, sought to intervene and participate in the award of damages on the ground that they were part of a 'joint venture' with the defendants Weldons and Rauh, under which parcel number 1 (part of which was taken by the State) was to be used for draining of parcels number 2 and 3 in a development project of all three parcels. It appears that at the most this was an oral or parol agreement between the parties. The Radfords claim that they have a right to intervene by reason of the joint venture agreement and the loss of profits therein.

The trial court, following a hearing on the motion raising the right to intervene, denied the Radfords this privilege. Within sixty (60) days from the judgment denying intervention, the Radfords filed a Motion to Correct Errors. From the overruling of the Motion to Correct Errors they take this appeal.

The State first contends that this is an interlocutory appeal and that it was not perfected within the thirty (30) day period limited for such an appeal. They further contend that the Radfords have no right to intervene because they show no interest compensible in damages for any real estate taken. Appeals from interlocutory orders are enumerated and strictly limited, and may not be taken in every case. See Burns' Ind.Stat.Anno. § 2--3218. The State has failed to convince us that there is any provision in the law authorizing an interlocutory appeal from a denial of a petition to intervene.

The next question raised is: Is this an appeal from a final judgment? If it is such, the appeal was in time and the appellants are properly here. Wiltrout, in his book Indiana Practice, Vol. 3, § 2153, states:

'An order denying a petition to intervene is a final judgment from which an appeal will lie. The sustaining of a motion to strike out a petition to intervene is a final judgment. But an appeal does not lie from an order permitting persons to become parties to the action'.

This authority is amply supported by cases in point in this state. It is well settled in Indiana that persons denied the right to intervene are entitled to appeal therefrom as a final judgment. Wiltrout states that one may appeal from a final judgment if as to such party his interest has been definitely determined and the litigation is ended as to such party. See Wiltrout, Indiana Practice, Vol. 3, § 2152.

The appellants' right to intervention has been finally determined by the trial court. However, if the appellant had been granted the right to intervene, as pointed out by the authorities, the controversy would not have been ended and no appeal would lie at that point. We find that appellants are properly before this court, in this appeal.

The final question arising is: Do the appellants (Radfords) have the right to intervene? This is predicated upon a showing of damages and injury arising from the taking of the land for highway purposes. The appellants therefore must show an interest recognizable by law in the real estate taken, i.e. parcel number 1, owned by the Weldons and Mrs. Rauh, in which the appellants actually have no legal title. The Radfords make their claim by reason of a 'joint venture', orally made with no written instrument evidencing or sustaining such an agreement. We have grave doubts that if a written instrument existed evidencing such an agreement for profit, it would sustain an interest in real estate owned by another member of the joint venture. Joint ventures are normally for the purpose of mutual sharing in the profits and losses of a particular transaction and differ from a partnership mainly because the latter is more of a permanent business nature and involves more transactions. See 17 I.L.E. Joint Ventures § 2, p. 52. The mere interest in profit is not sufficient in a condemnation action to sustain an interest in real estate. Even the owners of the real estate sought to be taken may not claim damages for loss of profits, since it is presumed that the land has an increased value because of its profit earning status and such elements are taken into consideration in evaluating the worth of the land itself. Burns' Ind.Stat.Anno., § 3--1706; Elson v. City of Indianapolis (1965), 246 Ind. 337, 204 N.E.2d 857.

All interests in the rights in real estate are compensible, such as the rights of ingress, egress, air space above, easements, etc. State v. Lovett (1970), Ind., 257 N.E.2d 298; Indiana Toll Road Commission v. Jankovich (1963), 244 Ind. 574, 193 N.E.2d 237, Cert. granted 377 U.S. 942, 84 S.Ct. 1352, 12 L.Ed.2d 305, Cert. dismissed, 379 U.S. 487, 85 S.Ct. 493, 13...