170 Ind. 49 | Ind. | 1908
Appellant, a corporation organized under the street railways act, on March 29, 1901, filed its instrument of appropriation with the clerk of the Huntington Circuit Court for the appropriation of certain real estate belonging to Aaron Dukes, the same being that part of the towpath of the Wabash & Erie Canal lying between the town of Roanoke and the city of Huntington, in Huntington county. Dukes, at the time resided in the city of Peru, and, not being a resident of Huntington county, notice of the filing of said instrument of appropriation was given by publication, the- first of which appeared April 2, 1901. On April 1, 1901, Dukes and wife conveyed to appellee Ft. Wayne & Wabash Railway Company, by quitclaim deed, for the expressed consideration of $1, the canal property, embracing the portion described in appellant’s appropriation proceeding. The deed contains this provision: “This deed is made for the express provision of aiding said grantee in constructing, maintaining and operating a railroad Over, upon and along the line of said canal, and for no other purpose whatever.” Upon the maturity of the publication appellant presented to the judge of the Huntington Circuit Court its petition for the appointment of appraisers to assess the damage. Dukes appeared and filed his statement and objections' to the appointment of appraisers, reciting therein that prior to April 1,' 1901, he was the owner in fee of the lands described in appellant’s instrument of appropriation, but on that day he and his wife conveyed the same
Subsequent to the admission of appellee railway company as a party there was a change of venue to the Kosciusko Circuit Court, wherein appellee filed exceptions to the appraisers’ report, and, after numerous counter pleadings and rulings, the case went to the jury on the single question of damages, with an instruction given at the request of appellee railway company, to the effect that: It appears from the deed offered in evidence that soon after the plaintiff filed the instrument of appropriation, and before the appointment of appraisers, Aaron Dukes and wife conveyed to the defendant the Ft. Wayne & Wabash Railway Company the lands described in the plaintiff’s instrument of appropriation. “The jury will, therefore, take it as a fact in the case that said defendant is the owner.of the real estate proposed to be appropriated, and is entitled to all the damages pertaining to the appropriation.” A verdict was returned assessing the damages at $13,791, upon which judgment was rendered in favor of appellee.
If appellant’s contention is right, then Dukes, being the owner in fee when the instrument of appropriation was filed, was the only sufferer from the taking, and because thereof became simultaneously vested with a claim against the corporation for full compensation for all damages that should result to his land by reason of the taking and the construction of the railroad; and such claim, being for a money demand for a taking and injury to the property, was not an incident of the remaining estate, and being purely personal and unassigned, by deed or otherwise, did not pass with the land to appellee railway company by the conveyance of April 1, and the railroad company had, therefore, no interest in the claim for damages, and its exceptions to the report of the appraisers should have been stricken out and the appeal dismissed.
If appellee’s contention can be sustained, then the filing of the instrument of appropriation by appellant on March 29 did not amount to a taking of the property, and the appropriation did not become effective until after the conveyance of April 1, which would make all assessable damages for the seizure the property of the grantee.
We proceed to consider the merits of the controversy. The State reserves dominion over all the lands within its borders and the right to seize any part of it at any time it
The act of 1903 (Acts 1903, p. 92, §3, §5679 Bums 1908), which confers upon street railway companies the right of eminent domain, provides: “Such company is hereby authorized to enter upon any land for the purpose of examining and surveying a railroad line, and may appropriate so much thereof as may be deemed necessary for its railroad. * * # ipkg corporation shall forthwith deposit with the clerk of the circuit court, or other court of record of the county where the land lies, a description of the rights and interests intended to be appropriated; and such lands, rights and interests shall belong to such company, to use for the purpose specified by making or tendering payment as
In Old Colony R. Co. v. Miller, supra, the particular time when the damages accrued was in issue between the railroad corporation and the landowner, and the court said: “The right of the landowner for damages for land taken by a railroad corporation is complete when the location is made [instrument of appropriation is filed]. That act constitutes the taking. It is the loss occasioned by the exercise of the right of eminent domain, at that time, for which the statutes provide indemnity.”
In Dowie v. Chicago, etc., R. Co., supra, the question was whether the company’s condemnation was effectual when'a part of the land became incorporated as a city, as to which the court said: ‘ ‘ The rule seems to be clear that the rights and interests of the parties.date from the time of the filing of the condemnation petition. ’ ’
In Parks v. City of Boston, supra, the court, in discussing the particular time to which the values and damages should relate, said: Besides the alienation of the plaintiff’s prop
The case of Williamsport, etc., R. Co. v. Philadelphia, etc., R. Co., supra, between two railroads, and in considering the priority the court said: “The act of location is at the same time the act of appropriation. The space covered by the line as located is thereby seized and appropriated to the purposes of the construction and operation of the railroad by virtue of the power of eminent domain, and nothing remains to be done except to compensate the owner. After the act of location by the company, the owner or the company may proceed at once to secure an ascertainment of the damages. Until such act neither can do so; for no right to damage vests or accrues to the owner until there has been an appropriation of his property by the corporation.”
To recall the language of the statute: “And such lands, rights and interests shall [upon the filing of the instrument of appropriation] belong to such company, to use for the purpose specified by making or tendering payment as hereinafter provided.” §5679 Burns 1908, Acts 1903, p. 92, §3. This language manifestly means that the right to take the land becomes fixed by the filing of the instrument of appropriation, but does not become complete, nor carry the right of possession or enjoyment, until the damage has been ascertained and paid or tendered; and upon payment or tender of the damage the right to take, for the use specified, becomes perfect as of the date of filing the instrument of appropriation, except in eases appealed to the circuit court. Upon payment of the damage awarded by the appraisers to the clerk of the court for the use of the landowner, the company acquires the right to take immediate possession pending the appeal, subject, however, to having the right of possession defeated by its failure to make prompt payment of any additional damage awarded by the jury. Heinl v. City of Terre Haute (1903), 161 Ind. 44,
Some apparent confusion has crept into our eases, as to the time and acts that shall operate to vest, or pass the title to the condemning party; and also as to what particular time or event the assessment of damage shall relate to. There should be no stumbling over the common expressions concerning the “vesting of the title” or the “passing of the title.” Nothing more than an easement is acquired by a condemnor, and such expressions should be regarded as implying only the vesting, or passing of the legal right of possession for the particular purpose specified, and in this sense there is no real conflict,in any of our cases.
In Logansport, etc., R. Co. v. Buchanan, supra, the trial court permitted several witnesses to testify as to the value, at the time of the trial, of the land taken for a railroad, and this court said: ‘ ‘ The instrument of appropriation was filed July 25, 1871, and the trial took place in May, 1873. Counsel for the defense do not attempt to sustain this ruling, and it seems to us that it cannot be sustained.”
In LaFayette, etc., R. Co. v. Murdock, supra, this court held the following charge to the jury to be a correct statement of the law: “ ‘Your inquiries as to the amount of damages sustained by the plaintiffs, if any, should relate to the time of the filing of the act of appropriation. ’ ’ ’
In Harshbarger v. Midland R. Co. (1892), 131 Ind. 177, the railroad company, in 1873, without right, entered upon the land of Meyers, and with his knowledge, but without his consent, constructed _a grade for its railroad. In 1875 Meyers died and his lands descended to the plaintiff. In
In Indiana, etc., R. Co. v. Allen (1885), 100 Ind. 409, in speaking of the right of a subsequent grantee to recover damages for the occupancy of a railroad, this court said: “When the strip of land was taken the quarter section belonged to Martha Brittingham; the right to recover all the damages then belonged to her; that right was a chose in action ; it did not pass to appellee by the warranty deed from Mrs. Brittingham and her husband. No assignment is alleged, and the rule is that damages to land, remaining uncollected does not pass to a vendee. ’ ’ It is said in Pierce, Railroads, 185: “The right to compensation accrues and takes effect at the time of the taking, though it may be ascertained and declared afterwards. It belongs, therefore, to the person who is the owner at the time of the taking, and does not, without an express stipulation, pass to a purchaser by a subsequent conveyance, although containing covenants of warranty.” See, also, Evansville, etc., R. Co. v. Nye (1888), 113 Ind. 223, 232; Sherlock v. Louisville, etc., R. Co. (1888),
The legislature itself adds strength to our conclusion by designating or characterizing the filing of the instrument of appropriation as the ‘ ‘ act of appropriation. ’ ’ The language employed follows: “Upon filing such act of appropriation [referring to the instrument of appropriation described in the preceding sentence] * * * or making such publication,” upon the application of either party the court shall appoint appraisers to assess the damage. §5679 Burns 1908, Acts 1903, p. 92, §3. The notice here referred to is for the benefit of the landowner, and a fair construction of the provision is that the condemnor cannot proceed with his application for the appointment of appraisers until the landowner has been duly notified, but the latter may waive notice and apply for the appointment of appraisers at any time after the “act of appropriation” referred to. If, then, the landowner has the right to ask for the appraisal of his damages immediately after the “the act of appropriation” is filed, may we inquire by what right he may claim damages, if he has, at the time, parted with nothing? As observed by the supreme court of Pennsylvania in effect: Until there has been an actual appropriation, neither the corporation nor the landowner can apply for the assessment of damages, because no damage vests or accrues until there has been an appropriation of his property.
We cannot agree with the appellee’s counsel, that since the conveyance by Dukes to the Ft. Wayne & Wabash Railway Company was made on the day before the first publication of notice, though after filing the instrument of appropriation, the land was then unaffected by the condemnation proceeding. As we view the matter, the notice required relates wholly to the ascertainment 'of damages, Preliminary steps
Upon the day of the filing of said last-named exceptions, appellant moved to strike them out, because it affirmatively appeared therefrom that the Ft. Wayne & Wabash Railway Company had no interest whatever in the damages accruing by reason of appellant’s appropriation proceeding; that it affirmatively appeared that at the time of the filing of the instrument of appropriation and the accruing of damages in controversy, the appellee company had no interest whatever in said real estate, or the damage occasioned by the appropriation thereof.
The exceptions, or answer, so far as appears from the record, affirmatively show that appellee company had no interest whatever in the subject-matter of the controversy, and such answer was, therefore, wholly foreign and irrelevant. The writer, speaking for a minority of the court, is of opinion, that as the motion was addressed to the exceptions, or answer, as a whole for irrelevancy, and which answer could not in any event be made material and relevant by substituting at that late date an entirely new and different claim of right, and, under the guise of amendment, introduce and construct a defense or claim upon a wholly different foundation, there is merit in the motion to strike out, and reversible error should be predicated upon the decision of the court in
The exceptions held good allege in terms that the instrument of appropriation was filed on March 29, when the land appropriated belonged to Dukes, and that the same was conveyed by the latter and wife to appellee company, three days afterward, to wit, April 1. There is no averment that any new or additional damage had accrued to the land on or after April 1, and no averment that there had been an assignment or transfer to appellee company by Dukes of his claim for damage, and no facts alleged showing, or tending to show, that there had been an equitable assignment of such claim to appellee company. In short, there is not a specification nor sentence in the exceptions or answer that responds to, or that in any material way tends to answer, the petition of appellant for the appointment of appraisers to assess the damages accruing to Dukes. Every vestige of claim asserted by appellee company is based on the rights acquired by the deed of conveyance from Dukes and wife, under date of April 1, and, as we have heretofore seen, this conveyance conferred no right to the personal claim acquired by Dukes on March 29, by the filing of-the instrument of appropriation.
The demurrer should therefore have been sustained to each and all of the specified grounds of exception, and the judgment is therefore reversed, with instructions to sustain
Monks, C. J., concurs in the result.
Separate Opinion.
Conceding that damages are to be assessed as of the date of the filing of the instrument of appropriation, I am nevertheless of-opinion that up to the time, at least, that the condemnor paid in the money the damages were capable of conveyance as real estate. Under a Constitution like that of Indiana, the assessing and tendering of compensation is a condition precedent to the taking, and the proposition cannot be escaped, that if the statute is construed as sanctioning the divestiture of title prior to that time, leaving in the original owner but a chattel interest, the act itself is in contravention of the fundamental law. Cases involving questions of priority of location as between rival companies, or as to the ownership of the damages where there has been a physical appropriation in advance of proceedings to condemn, are in nowise in point.
As the majority opinion, however, settles the question of the insufficiency of the exceptions of appellee company, based on its ownership of the damages by virtue of the deed, I accommodate myself to said conclusion, but I deem it proper to explain my reason for joining in the holding that the court below did not err in overruling appellant’s motion to strike out appellee’s exceptions as an entirety. Passing over our decisions of Guthrie v. Howland (1905), 164 Ind. 214, Woodhams v. Jennings (1905), 164 Ind. 555, and Hart v. Scott (1907), 168 Ind. 530, relative to motions to strike out, I place my holding on the. ground that, if the facts alleged were insufficient to enable appellee to recover the damages, the demurrer should have been sustained, to the end that said company might have been able to amend, and there
Although the proceedings in question were under a special statute, yet after they reached the circuit court they were governed by the civil code in respect to matters of practice upon which the special act was silent. Hart v. Scott, supra, and cases cited. The exceptions were therefore open to amendment. Swinney v. Ft. Wayne, etc., R. Co. (1877), 59 Ind. 205. Even if it were admitted that a motion to strike out could afford a basis of error, the question remains whether this court should hold, without being in anywise advised as Jo the nature of the inadvertence which led to the omission to set up a possible assignment of the chattel interest, that the right of amendment is gone, and thereby cut off all right to litigate the extent of the damages on appeal from the appraisement.
This would be a case for an amendment even under the practice as it existed before the code was adopted. The leading statute of jeofails (32 Henry VIII, chap. 30, A. D. 1540, 5 Stat. at Large, p. 45) declares that th,e strictness which has obtained in regard to amendments is a slander on the common law, and the act then proceeds greatly to enlarge the authority to amend for mistakes in form, substance, insufficiency of the pleadings, etc.
Our code fairly breathes with the spirit of amendment. If the court sustains or overrules a demurrer, the party affected by the ruling may plead over or amend. §§347, 351 Burns 1908, §§342, 346. R. S. 1881. No variance shall be deemed material unless it shall have actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. §400 Burns 1908, §391 R. S. 1881. Any pleading may be amended by either party, of course, before the pleading is answered. §403 Burns 1908, §394 R. S. 1881. The court may at any time, within its discretion, permit any material allegation to be inserted when it does
The practice concerning amendments is especially liberal as regards the answer of the defendant, since a denial of an amendment may prevent him from defending upon the merits. 1 Ency. Pl. and Pr., 518; VanNess v. Bush (1860), 22 How. Pr. 481. In Bliss, Code Pl. (3d ed. by Johnson), §430, it is said: In regard to the defense, we do not find the same limitation upon the power of amendment. It frequently happens that a defendant seeks, by amending his answer, to set up a defense entirely new, as frequently, perhaps, as to perfect the statement of one already pleaded;
In Swinney v. Ft. Wayne, etc., R. Co. (1877), 59 Ind. 205, which was a condemnation case, it was held that a landowner who had effected an appeal might file further exceptions setting up entirely new defenses.
The ease of Clarkson v. Wood (1907), 168 Ind. 582, is much in point, since it illustrates the broadening tendencies of the decisions of this court relative to amendments in special proceedings. It was there said: “The trend of .these decisions clearly indicates that in the enforcement of a special statute the rules of our civil practice code are applicable to all matters not especially provided for in the act itself. Amendments are favored by the code to promote completeness in litigation, and the trial court has discretion to allow almost any amendment that will not mislead or
It is stated in the brief for appellant that within ten days from the filing of the report of the appraisers the Ft. Wayne & Wabash Railway Company, on its application, was made a party defendant and filed its exceptions in the cause. The precise character of these exceptions does not appear, as amended exceptions were afterwards filed, and the clerk has omitted to set forth the original exceptions. There is nothing to indicate that appellee’s claim to the damages is sham. The court upheld its exceptions on which the cause was tried, and it is to be presumed that but for that fact appellee would have at once brought forward its claim of special assignment of the damages, if such assignment existed. As the cause must go back because this court holds that the deed did not carry the damages, the amended exceptions will come in before the condemnor will be called on to address a pleading thereto, so that the cause will be back to that stage where there is a right to amend as of course..
There is nothing inconsistent between the exceptions already filed and the further fact that the damages have been» specially assigned. The idea that appellee is an interloper in the proceeding is a gratuitous assumption, which may in nowise be borne out by the facts. Besides, the new matter would be in its strictest sense an amendment (see Words and Phrases, title, Amendment), since it would be but an adding
I am therefore of opinion that the court below should not be required, by the peremptory mandate of this court, to strike out the exceptions already filed, and thereby cut off the right of appellee railway company by amendment to aver, and to prove upon the trial, that it possesses a valid assignment of the damages.
In conclusion, I may say that I am of opinion that error intervened in the admission of evidence offered by appellee, and therefore I concur in the order reversing the judgment'.