Wilson v. Talley
| Decision Date | 20 February 1896 |
| Docket Number | 17,597 |
| Citation | 42 N.E. 362,144 Ind. 74 |
| Parties | Wilson v. Talley et al |
| Court | Indiana Supreme Court |
Original Opinion of December 10, 1895, Reported at: 144 Ind. 74.
The appellant, after rearguing the questions which were fully considered at the original hearing, says that we failed to consider the objections made to the instructions given by the court on the trial, and particularly the objections to instruction number 7. In this instruction, the court, after informing the jury as to the measure of damages to appellant's land, added: "If you find any damages in Wilson's favor upon the measure therefor herein stated, you should include all damages present and prospective, deducting, however, any value of benefits to be by him derived, present or ultimately, by the establishment of the ditch."
This instruction we think right so far as it goes. If, however, appellant was of opinion from the evidence that Wilson's benefits were greater than his damages, and that in such case the jury should be informed that the damages should be deducted from the benefits, he should have prepared instructions covering that point and asked the court to give them to the jury.
It is the difference between the benefits and damages to any particular piece of land that gives the net or real benefit or damage which should be assessed to that land.
So it is said in section 3635, R. S. 1894 (section 3172, R. S. 1881), in relation to opening or vacation of streets: "In cases where both benefits and damages shall be assessed upon the same real estate, or to the same person or persons, the benefits, if less than the damages, shall be deducted from the assessment of damages."
And in section 5660, R. S. 1894 (section 4290, R. S. 1881), the "damages" referred to in relation to drainage, which shall be assessed to the parties owning the lands benefited, mean the actual damages left, if any, after deducting the benefits. If, to use appellant's figures, his damages were $ 272 and his benefits $ 271, his real damages would be $ 1, and this should be paid by the parties benefited. So, also, the benefits which an owner shall be assessed are the net benefits after deducting all the damages, if any, which he may suffer.
On careful consideration of the case, we do not find that the trial court committed any available error.
The petition is overruled.
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