Young v. State, 568S75
| Decision Date | 15 April 1969 |
| Docket Number | No. 568S75,568S75 |
| Citation | 252 Ind. 131,246 N.E.2d 377 |
| Parties | A. J. YOUNG and Ruth E. Young, Appellants, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
White, Raub, Reis & Wick, Indianapolis, for appellants.
John J. Dillon, Former Atty. Gen., Murray West Deputy Atty. Gen., Theodore L. Sendak, Atty. Gen., for appellee.
This is an inverse condemnation action brought by the appellants Young against appellee for property damage arising from the appellee's alleged taking of appellants' access to property which was located originally on old Madison Avenue in the City of Indianapolis, Indiana.
The property of the appellant Dr. Young and wife was located on the east side abutting Madison Avenue. The State Highway Department, in constructing a new Madison Avenue thoroughfare, purchased land parallel to and west of old Madison Avenue and used approximately half of the old Madison Avenue with the newly purchased tract to build a limited access thoroughfare. In doing so the Highway Department lowered the grade of the new highway approximately 12 feet, leaving however on the old grade or level, one-half of the old highway (a two-way street) along the frontage of appellants' property, the same being part of the old Madison Avenue. In other words, in front of the appellants' property was old Madison Avenue at the same level and left with two-way traffic. The appellants' property was not left on a cul-de-sac, but there were intersecting streets at both ends of old Madison Avenue, with the appellants' property in between the intersecting streets. The appellants' property was left approximately 12 feet high above the new Madison Avenue, but between the new Madison Avenue and the property remained approximately half of the old Madison Avenue, which was left in its approximate original condition.
A trial was had by jury, which returned a verdict for the appellee, after having found that the appellants had suffered no damages. The appellants contend that the verdict of the jury was too small, and also that the court erred in giving certain erroneous instructions and in the admission of certain evidence.
The only issue tried by the jury was the amount of damages. Under a claim that the verdict as to damages is inadequate, we must first look at the evidence to see if there was any taking of the real estate or substantial rights therein, and if so, the extent thereof, before we can determine whether the verdict is inadequate. If there was no taking of appellants' property or rights in the property, then there could be no damages to which the appellants would be entitled.
This being an inverse condemnation proceeding, the interlocutory order which appointed the appraisers was not appealable as in a direct condemnation proceeding. We have said that there is a reason why a landowner should have a right to question the authority of a condemnor to condemn his land in a direct proceeding and appeal from the interlocutory order, since irreparable damage would otherwise be done to a landowner whose property might be illegally seized or destroyed and he be left only with a money judgment.
'* * * On the other hand, there may be logic and reason why the statute does not grant an interlocutory appeal to the public body which has already seized the land and where the defendant is seeking only his compensation, as in this case.
'We point out further that the appellant here is not without remedy, since we have held that where there is no right to appeal from an interlocutory order, the error if any, may be carried over and brought before the court upon an appeal from the final judgment.' Evansville-Vanderburgh Levee Auth. Dist. v. Towne Motel, Inc. (1966), 247 Ind. 161, 163, 213 N.E.2d 705, 706.
It necessarily follows that to determine whether or not the appellants are entitled to damages we must determine whether or not there is any taking of real estate or the rights in real estate under the factual situation in this case. If there is no taking, there can be no damages, and it follows that the claim that the damages assessed were too small is without merit.
In order to receive compensation in a condemnation action the landowner must show that the injury is special and peculiar to his real estate and not some inconvenience suffered by the public...
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State v. Dunn, No. 82A01-0705-CV-223.
...claim that access to his property was impeded by the manner in which a limited access highway was constructed. Young v. State, 252 Ind. 131, 246 N.E.2d 377, 379-80 (1969), reh'g denied. Diamond Lanes was simply commenting upon the fact that the landowner's injuries arose out of the State's ......
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