Werley v. The Huntington Waterworks Company

• Decision Date: 29 May 1894
• Docket Number: 16,517
• Citation: 37 N.E. 582,138 Ind. 148
• Parties: Werley et al. v. The Huntington Waterworks Company
• Court: Indiana Supreme Court

37 N.E. 582

138 Ind. 148

Werley et al. v. The Huntington Waterworks Company

No. 16,517

Supreme Court of Indiana

May 29, 1894

From the Huntington Circuit Court.

Judgment reversed, and cause remanded, with instruction for further proceedings in conformity to this opinion.

R. A Watkins and R. A. Kaufman, for appellants.

J. B Kenner and U. S. Lesh, for appellee.

McCabe J. Dalley, J., took no part in this decision.

OPINION

McCabe, J.

This was a proceeding by the appellee against the appellants, to appropriate certain real estate and water privileges for the use of said company, in the circuit court. The proceeding was instituted by filing an instrument of appropriation in the office of the clerk of that court.

The proceeding was had under the act of the Legislature, approved March 6, 1889, Acts of 1889, p. 195.

The third section thereof provides, among other things, for the filing of an instrument of appropriation by an incorporated company, in the office of the clerk of the circuit or other court, describing lands and water privileges needed for the use of such company, and a delivery of a copy thereof to the owner or owners of such lands, water privileges, and rights; and that thereupon the judge of the circuit, or other court of record, in the county where the land or water lies, or any judge thereof in vacation, shall, on application of either party, appoint by warrant three disinterested freeholders of such county to appraise the damages which the owners of the lands, water rights, easements, lakes, and natural streams of water may sustain by such appropriation. Such appraisers are required to be sworn, and consider the injury which such owner may sustain by reason of such appropriation, and forthwith return their assessment of damages to the clerk of such court, setting forth the value of the property taken or injury done, which they shall assess to the owner or owners separately. And that thereupon the company shall tender the amount thus assessed, to the party * in whose favor such damages are awarded, or shall pay the same in trust to said clerk; that on making payment or tender thereof it shall be lawful for such company to hold the interests in such lands and waters so appropriated.

It then provides that: "The cost of such award shall be paid by such company. * * The award of said appraisers may be reviewed by the circuit court or other court in which proceedings may be had, on written exceptions filed by either party in the clerk's office, within ten days after the filing of such award, and the court shall make such order therein as right and justice may require, by ordering a new appraisement on good cause shown: Provided, That notwithstanding such appeal, such company may take possession of the property therein described for the purposes for which it was condemned, and the subsequent proceedings on the appeal shall only affect the amount of compensation to be allowed."

The first appraisers, appointed by the judge in vacation, made and reported their appraisement under oath; and within ten days after the filing of such appraisement, in which they assessed the appellants' damages at $ 800, the appellee filed exceptions thereto. The court, with the consent of appellants, sustained said exceptions, set aside said award, and appointed three new appraisers, who, under oath, made a new appraisement, awarding appellants $ 700 damages. Within ten days after filing the same in the clerk's office, the appellants filed exceptions to such award on the ground:

1. That the damages assessed are too small and should have been $ 1,000.

2. That the appraisers were unduly influenced and biased by the appellee by means of a promise made by appellee's agents to the appraisers to open a direct public highway from said premises to said city of Huntington.

3. That the appraisers did not impartially appraise the damages which appellants would sustain.

4. That William McGrew accompanied the appraisers on their view of said premises, and induced the appraisers to believe that said appropriation would not deprive the owners of the use of the premises to be appropriated, and that the possession thereof would not be for the exclusive use of appellee, but that appellants would derive great benefit by having a public highway from said premises to Huntington, and that that convenience would partially...