177 Ind. 524 | Ind. | 1912
Action for condemnation under the eminent domain act of 1905 (Acts 1905 p. 59, §929 Burns 1908). The only question involved is the amount of damages. Appellant’s right to exercise the power of eminent domain with reference to the real estate involved was determined by this court in Smith v. Cleveland, etc., R. Co. (1908), 170 Ind. 382, 81 N. E. 501.
The cause was submitted to a jury for determination, which returned a verdict for appellee for $9,500. Prom a judgment on that verdict appellant prosecutes this appeal. The errors assigned here are the action of the lower court
In appellant’s motion for a new trial, this was not assigned as error. By failing to assign this as a cause for a new trial, appellant has waived its right to a consideration, by this court, of the alleged error. Wilson v. Johnson (1896), 145 Ind. 40, 38 N. E. 38, 43 N. E. 930; Southern R. Co. v. Sittasen (1906), 166 Ind. 257, 76 N. E. 973; Mannix v. State, ex rel. (1888), 115 Ind. 245, 17 N. E. 611.
This was a term-time appeal. The bond was filed in the court below within the time designated, and the transcript was filed here within sixty days thereafter. The surety designated and approved by the trial court, was the American Surety Company. The surety executing the bond was the National Surety Company. Long after appellee had appeared and filed his brief on the merits of the case, he filed, his motion here to dismiss this appeal, because the appeal bond was not executed by the surety designated and approved by the court. In his motion, duly verified, he shows that he had no knowledge of the variance in sureties until after his brief on the merits had been filed. No leave was asked to withdraw his appearance here.
Appellant assigned 105 causes- for a new trial in its motion therefor. Those for which a consideration has not been waived, appellee seeks to obviate by asserting and maintaining 146 propositions.
This court was constituted for the purpose of correcting substantial errors of lower courts; and does not consider barren technicalities.
Without setting out appellee’s points, it is sufficient to say that the pleadings and evidence are properly in the record.
Appellee insists that the appeal should be dismissed under rule six of this court, because Martha E. Smith, wife of appellee, was not made a party.
Mrs. Smith was not a party to the judgment below, and was not a necessary party to the appeal, and, consequently, there is no merit in appellee’s motion to dismiss the appeal. Alexander v. Gill (1892), 130 Ind. 485, 30 N. E. 525; Mueller v. Stinesville, etc., Stone Co. (1900), 154 Ind. 230, 56 N. E. 222; Ewbank’s Manual §146; Ward v. Yarnelle (1910), 173 Ind. 535, 91 N. E. 7; Smith v. Gustin (1907), 169 Ind. 42, 80 N. E. 959, 81 N. E. 722.
In 1870, after the road was constructed, fences were erected on the lines of the right of way, and thereafter maintained.
The dwelling-house of Smith was near the west line of the farm. Near this was the principal barn, and other outbuildings. Across the railroad, south of these buildings, was a tract containing over forty acres, lying west of the creek. This was not touched by any highway. Prom the completion of the railroad in 1870, to the time of John "W. Smith’s death, which occurred in 1883 or 1884, the only means of communication, used in transporting farm products and machinery, between this forty-acre tract, and the tract north of the railroad, was a crossing over the railroad, south of Smith’s residence. This crossing was entered through gates maintained in the fences along the right of way.
On the death of John W". Smith, appellee, his son, inherited the farm, and has owned it ever since.
Until the commencement of this action, the crossing was used continuously and uninterruptedly by the owner of the
The two 120-foot strips, condemned for material for a roadbed, were, after the completion of the roadbed in 1870 to the commencement of this action, in the continuous and exclusive possession of the owner of the farm, and were separated from the right of way by fences, and were used by the owner for farming and pasturage purposes. From portions of these strips quantities of earth had been removed in 1869 to make the roadbed.
A public highway, called the “Plainfield road,’’ran north and south through the farm about seventy rods west of the east line thereof. At the railroad crossing this highway was within a few feet of the east bank of the creek, the creek there being farther east than at any other point in the farm.
East of the creek, and on the south side of the right of way, just east of appellee’s lands, the waters of a continually flowing spring ran from the lands of one Garter onto appellant’s right of way. This water flowed west in an open ditch constructed by appellant, and emptied into Lick creek. For a portion of the distance this ditch was on the railroad right of way, and for other portions thereof it was on appellee’s land, without the limits of the old right of way, but within the limits of the new appropriation. This spring water never froze, and was continuously used by the owner of the farm for stock water.
This ditch passed under the Plainfield road through a subway about six feet high, and this subway was continuously used by the owner of the farm for a passageway for cattle
Just west of the private railroad crossing there was a sewer-pipe under the old embankment. Through this there passed the surface-water which came down from about 150 acres of land to the north and west. This surface-water crossed the right of way to appellee’s land on the south thereof, and was then taken in an open ditch, on appellee’s land, adjoining the right of way fence, east, to White Lick creek. Emptying into this ditch on appellee’s land was a system of about 300 rods of covered tile drains, which drained portions of the land south of the railroad.
Appellant’s amended complaint-was filed in 1906. It alleges, among other things, that, through appellee’s real estate, its line of railway is unnecessarily inconvenient and expensive to operate, by reason of unavoidable curves, grades and other causes, and the line will be greatly improved by making alterations in the line, by straightening curves, changing grades, raising bridges and fills, and making additional tracks; that appellant’s board of directors has determined to make such changes; that, in order to do so, it desires to appropriate certain land of appellee’s, situate on each side of its right of way; that the appropriation of said land is necessary for the appellant’s use in making said changes and alterations, because of the raising of plaintiff’s track, and the widening of the base of the fill of said tracks.
The changes contemplated by the complaint were authorized by the act of 1903 (Acts 1903 p. 218). Smith v. Cleveland, etc., R. Co., supra, pages 395, 396. Appellant’s entire farm is described in the complaint.
The cause was tried in April, 1908. At that time the work of reconstruction practically had been completed.
By this last condemnation, a strip, twenty feet wide was taken on the north side of the right of way through the
Appellant erected' fences on the new lines of its right of way. At certain places these were crushed down by the earth sliding over them from the new embankments.
The grade was materially raised through appellee’s farm. South of his residence it was raised as much as twenty feet above the former grade. As a result of this, the view from his residence of the land lying south of the railroad was cut off. At the highest point the new grade was about fifty feet high, and the base of it occupied all the right of way, including the new appropriation, and, in addition, the earth from the sides of the grade rolled and washed down on appellant’s land outside the new right of way, and spread over a large area—one witness says about six acres—of appellee’s land.
Before the alteration there was a single track of railway; afterwards, two tracks were laid. The top of the new embankment is about thirty-five feet wide and the center line between the new tracks is about thirty feet south of the center line of the old track. The private crossing was destroyed.
To make approaches for a new crossing would involve a cost, estimated by witnesses, in amounts ranging from $1,000 to $1,000.
The old ditch, south of the right of way, east of the creek, was filled up, and the water from the Carter spring now passes wholly on appellant’s right of way, and does not touch appellee’s land outside thereof. The subway, east of the creek, was filled up, and a new bridge, through which the spring water flows, was constructed on appellant’s right of way. To this spring water, appellee has no access.
The sewer-pipe, west of the old private crossing, was not replaced, and the surface-water, formerly carried through the sewer, runs to the east of the north side of the right of way, and spreads out over appellee’s bottom lands.
The court refused this instruction, and, as claimed by appellant, erroneously, for the reason that the first condemnation divided the farm into separate, independent tracts.
For the same reason, appellant’s requested instruction ten was correctly refused.
Under the facts in this case, it is unnecessary to determine whether appellee was the owner of an easement in a way across the tracks by prescription, or by virtue of the crossing act of 1885, supra. There was, after the 1869 condemnation, no practical means of travel to or from the tract south of the railroad and west of the creek, except over appellant’s right of way, and in such case, a right of way of necessity, was, by legal implication, reserved in the owner, when the original condemnation proceedings were had. John Hancock Mut. Life Ins. Co. v. Patterson (1885), 103 Ind. 582, 2 N. E. 188, 53 Am. Rep. 550, and eases cited; Ellis v. Bassett (1891), 128 Ind. 118, 27 N. E. 344, 25 Am. St. 421; Lamott v. Ewers (1886), 106 Ind. 310, 6 N. E. 636, 55 Am. Rep. 746; 14 Cyc. 1166; Gains v. Lunsford (1904), 120 Ga. 370, 47 S. E. 967, 102 Am. St. 109; Rollo v. Nelson
It was alleged in the complaint that the appropriation of the additional land was necessary, because, among other things, of the proposed raising of plaintiff’s tracks and the widening of the base of the fill. Appellant’s map, introduced in evidence, shows that, at the point opposite appellee’s residence, the line of the rail center was changed about thirty feet south by the new location, and, as the new construction was of double tracks, the south rail of the new south track was still further south of the place occupied by the south rail of the old track.
Evidence given shows that the base of the embankment, as reconstructed at that point, covered the entire right of way, old and new, and, even with that, the sides of the embankment had rolled and washed down into appellee’s fields.
While the evidence shows that the rails on the new location are still within the lines of the old right of way, it also shows them to be on a line south of the old location; and about twenty feet higher than formerly, at points near a line running south from appellee’s residence.
Whether the track might have been elevated on the old line so as to obscure the view, is a matter of speculative interest only, because the old rail line was abandoned, and the elevation of the new line requires for support all the land taken at this place by the new appropriation.
In any event,'if any evidence was given showing that it would have been possible to have elevated the track on the old right of way enough to have cut off the view, it is not set out in appellant’s brief.
No reversible error was committed in refusing the above requested instructions.
Conceding that this instruction states a correct rule, no harm resulted from the refusal, for instruction eighteen, requested by appellant, and given, and other instructions given by the court, sufficiently informed the jury of the rule governing its deliberations with respect to the matters set out in the seventeenth instruction, requested by appellant.
Appellant’s counsel criticise the fourth, fifth and sixth instructions given, because, they allege, these instructions permit the award of damages for such part of the “alteration and reconstruction” as was wholly within the limits of the old right of way. These instructions are not fairly chargeable with the above criticism.
Appellant contends that this instruction was erroneous, because it permits a recovery of damages for elements that are remote and speculative, and also elements occasioned by alterations, etc., within the limits of the old right of way. The latter element is expressly excluded bjr the limitation in the instruction by the phrase “upon the lands appropriated.” In support of its contention, that the instruction permits the recovery of speculative and remote damages, the eases of Indianapolis, etc., Traction Co. v. Larrabee, supra; Indianapolis, etc., R. Co. v. Hill (1909), 172 Ind. 402, 86 N. E. 414, and Indianapolis, etc., R. Co. v. Branson (1909), 172 Ind. 383, 86 N. E. 834, 88 N. E. 594, are cited.
Appellant contends that this instruction authorized the jury to allow damages for injuries caused by earth and rock sliding and washing down from the sides of the embankments on appellee’s lands outside the limits of the new right of way, and for such injuries appellant is not liable in the present action. Counsel for appellee concede the effect of the instruction, but insist that appelleé has the right to recover in this action for such injuries. Appellee’s witnesses generally included these injuries as elements in their estimates, and they were estimated by some witnesses, as damages to the extent of $2,000.
The assessment should not cover damages resulting from the negligent construction of the road, nor from improper incroaehments upon the land outside the right of way. Roushlange v. Chicago, etc., R. Co. (1888), 115 Ind. 106,
Appellant objects to the fourteenth instruction given, because, it claims, the instruction authorizes the jury to award damages for changes made wholly on its old right of way. The instruction is not open to this objection. The fifteenth instruction given, if erroneous, was harmless.
Appellant’s counsel contend that this was erroneous, because the evidence fails to show that there was any natural watercourse in which the water from the Carter spring flowed across appellee’s land. Counsel are in error in this respect. D. W. Carter testified that the water of the spring “in its natural flow” passed on appellee’s land, very close
Counsel also object to this instruction, because it proceeds on the theory that appellee cannot enter on the right of way and pipe the spring water flowing therefrom onto his own land. In order to determine this question, it is necessary to consider the nature of the possession acquired by a railroad in a right of way which it condemns. Nothing was here reserved to the owner by the instrument of appropriation. In Smith v. Holloway (1890), 124 Ind. 329, 24 N. E. 886, the nature of the easement acquired by a railroad in a spring water stream was incidentally involved, and it was said by this court: “The point made by the plaintiff that the grant of the right of way to the railroad company precludes the appellee from maintaining this action is without substantial merit. The owner of the fee remains the owner of springs, streams, minerals, and the like, for all that he grants is an easement. The owner cannot interfere with the free use of the right of way, but subject to this use he may make all lawful use of the land.”
In Consumers Gas Trust Co. v. American Plate Glass Co. (1904), 162 Ind. 393, 68 N. E. 1020, it was held that a railroad company may be enjoined by the lessee of the fee from sinking a gas well on the right of way.
In Beacon v. Pittsburgh, etc., R. Co. (1892), 1 Pa. Dist. Rep. 618, it was held that where a spring of water was within the right of way of the railway company, and could, by pipes, be conducted by the landowner to a place on his property, outside the right of way, the owner of the fee had the right so to conduct it, and consequently he could not recover from the company the entire value of the spring, but only so much as it would cost to make the water from the
In Dilts v. Plumville R. Co. (1909), 222 Pa. St. 516, 71 Atl. 1072, it was held that in the appropriation by a railroad company of an owner’s land, on which there was a spring, the company did not secure title to the waters thereof, but that it remained in the owner of the fee, and the latter might conduct the water by pipes wherever he desired, and that the damages would depend on the extent of the injury to the use of the spring, caused by the appropriation.
In the above ease, it was held, in consonance with the weight of modern authority, that the company has the right to the exclusive possession of the surface of the land appropriated. New York, etc., R. Co. v. Comstock (1891), 60 Conn. 200, 22 Atl. 511; 2 Lewis, Eminent Domain (2d ed.) §§746, 849.
Appellee testified that the waters from Carter spring flowed through tbe subway, and tbe latter was located just south of the old right of way and within tbe limits of tbe new appropriation.
The court erred in sustaining appellee’s objection to the question. Sales of this kind, even if not by way of actual compromise, are not a fair criterion of value. They are affected by an element which does not enter into sales made in the ordinary course of business. 2 Lewis, Eminent Domain (2d ed.) §447.
Many other questions are presented in appellant’s brief, but as they are not likely to arise in another trial of the cause, they will not be considered.
We cannot say that the above errors relating to the exclusion and admission of testimony were not harmful to appellant. It affirmatively appears that the thirteenth and sixteenth instructions given by the court were harmful, and for these errors the cause must be reversed. Judgment reversed, with instructions to grant appellant’s motion for a new trial.
Note.—Reported in 97 N. E. 164. See, also, under (1) 29 Cyc. 752; (2) 2 Cyc. 853; (3) 2 Cyc. 852, 891; (4) 2 Cyc. 875; (5) 3 Cyc. 530; (6) 2 Cyc. 875; (7) 8 Cyc. 139; (8) 8 Cyc. 1058; (9) 15 Cyc. 954; (10) 15 Cyc. 864; (11) 15 Cyc. 1022; (12) 14 Cyc. 1172; (13) 38 Cyc. 1615; (14) 15 Cyc. 1026; (15) 15 Cyc. 748, 902; (16) 31 Cyc. 90; (17) 15 Cyc. 903; 40 Cyc. 654; (18) 40 Cyc. 645; 97 Am. Dee. 565; (19) 15 Cyc. 752; (20) 15 Cyc. 696, 752; (21) 38 Cyc. 1711; (22) 15 Cyc. 704, 729, 903; (23, 24 and 25) 15 Cyc. 903; (26) 15 Cyc. 719; (28) 33 Cyc. 351; (29) 15 Cyc. 903; (30) 15 Cyc. 1023; (31) 15 Cyc. 706; (33) 15 Cyc. 646, 684; (34) 16 Cyc. 1138; (35) 16 Cyc. 1136; 1137. For a discussion of the price paid by the condemnor for other property for use in the same enterprise as evidence of the value of land condemned, see 20 Ann. Cas. 695.