48 Ind. App. 96 | Ind. Ct. App. | 1911
This is an action and statutory proceeding by the Vandalia Railroad Company to condemn and appropriate for a right of way for steam railroad purposes a part of a tract of land in the city of Brazil, Indiana, owned by appellant James N. Halstead.
The complaint asked for the appointment of appraisers to assess the damages, and, after an answer was filed a hearing was had and appraisers were appointed, who filed their report, assessing damages to appellant Halstead in the sum of $3,100. Appellee filed exceptions to the assessment, on the ground of excessive damages, and prayed that the amount of damages be determined and assessed as in a civil action in the manner and form provided for by law, and upon issues thus formed, the cause was submitted to the jury, who found for appellant Halstead, and assessed his -damages at $2,100.
The errors relied on for reversal are five in number, and arise out of the overruling of the motion for a new trial. They are the giving of instructions seven, twelve and fifteen, tendered by plaintiff, and the admission in evidence
Objection is made to the last clause of this instruction, on the ground that it informs the jury that the only- element it is to consider in awarding damages is the value of the improvements; that in assessing the damages it should not allow for the value of the land taken, as well as of the improvements ; and that it withdraws from consideration, as an element of damage sustained, the value of the land. We do not think this objection tenable. The case was tried on the theory that appellants were entitled to recover for the value of the land and of the improvements. Almost every witness in his testimony fixed a separate value on the land and the improvements, and in instruction two, given by the court on its own motion, the jury was correctly informed “that the measure of damages is the difference in the value of the real estate at the time of the appropriation, and the value of the
Though instruction fifteen is not very clearly expressed, it seems to us to mean, and we believe that such would be the meaning placed upon it by ordinary men of fair intelligence, that the jury was permitted to consider the value of the improvements taken separately, for the purpose of enabling it to find the fair market value thereof, considered as a whole, not for the purpose of determining the entire damage, but of determining one element of that damage, namely, the value of the improvements. The instruction was clearly applicable to the evidence, and though not complete in itself, when taken in connection with the other instructions given it cannot be held to have misled the jury and harmed appellants.
This instruction is objected to as peremptory, because, by the use of the word ‘ ‘ should, ’ ’ instead of “ may ” or “ might, ’ ’ it orders the jury to consider certain evidence which appellants claim they were at liberty to consider, but not bound so to do; and further, as singling out particular evidence for comment. Evidence was introduced of the purchase price paid by appellants for the property shortly before the condemnation. This evidence was proper, and the jury was told that it should consider such evidence in connection with all the evidence in the case. In telling the jury that it should consider the evidence, the judge announced only the duty which it was bound to perform, and as he did not comment on the weight to be given the evidence, he committed
This instruction was correct. Evidence had been given of the value of the property for an ice-plant, for which purpose appellant Halstead said he intended using it. The jury was correctly advised by the court’s instruction eight that the availability of the property for other uses than those to which the land is actually applied, so far as it may be shown in evidence, and the uses for which the property is suitable, and to which it is adapted, may be taken into consideration. But inquiry as to damages cannot go into an intended specific future use, such a field of damages being held to be speculative. Goodwine v. Evans (1893), 134 Ind. 262.
In 2 Lewis, Eminent Domain (3d ed.) §709, the rule is announced as follows: “Proof must be limited to showing the present condition of the properly and the uses to which it is naturally adapted. It is not competent for the owner to show to what use he intended to put the property, nor what»plans he had for its improvement, nor the probable future use of the property. Nothing can be allowed for damages to an intended use.” This appears to be the rule recognized by our own Supreme Court.
Cross-examination of R. S. Hill is as follows: “Q. Did Mr. Halstead make any statement to you on that occasion about what he would do or was willing to do in regard to that property ? A. He did. Q. Tell the jury what it was. A. He said that the salvage, he thought, he would give— that he would give $1,350. Q. For what? A. For the salvage in that building when it was tom down. Q. Did you take that into consideration in forming your opinion as to the value of the property, and what it ought to be ? A. My judgment was that the salvage was worth $1,000, and I made that part of the estimate. Q. You gave it credit that far? A. For the amount of $1,000. Q. You say now that your value of that building is how much ? What do you say the value is on the building alone ? A. I said the value of the building and the ground was $4,000, and then I deducted from that $1,000 for the salvage, or the value of the material in the building, which left $3,000. Q. As a matter of fact you made an appraisement different from that, didn’t you? A. Yes, sir, our appraisement was— Q. $3,100? A. That was done in reconciling— Q. $2,400 for the building and $700 for the ground ? A. If you will allow me to explain the matter — I haven’t got the figures. [Here-, in answer to questions, witness identified his signature to a paper not named in the record, apparently the appraisers’ report.] Q. And here it is stated that the value of the above-described piece of land on August 4, 1906, was $3,100. I will ask you, Mr. Hill, to tell the jury whether you remember what valuation you put on this building in your report. A. I don’t remember the detail — I remember the aggregate was $3,100.”
The following is the redirect examination of Conrad Dierdorf: ”Q. Tell the jury whether Mr. Halstead made any statement to you, representing what he would pay for the salvage of the building to the railroad company, when you
The entire purpose of the exception to the award was to obtain a reconsideration of the identical question submitted to and determined by the appraisers chosen for the purpose of fixing the damages to appellants caused by the taking of the land and improvements by appellee. The case, therefore, was to be tried de novo, and the award of damages, as made by such appraisers, and included in their report, could not be considered as competent evidence of the proper amount of damages sustained by appellants. This rule is well recognized by the courts of this State. Trittipo v. Beaver (1900), 155 Ind. 652, and numerous eases cited. The jury in such cases has but one duty to perform, and that is to assess the damages the defendant will sustain by the appropriation of his land to public use, and has no more right to know w'hat the report or assessment of damages of the appraisers was, or the reasons which influenced that assessment, than any jury in any case has to know what the verdict of a previous jury was in the same case, or the method by which that previous jury arrived at its verdict. On exception to the award and trial de novo, the report appealed from is not evidence as to the amount of damages. 2 Lewis, Eminent Domain (3d ed.) §669; Missouri Pac. R. Co. v. Roberts (1905), 187 Mo. 309, 86 S. W. 91.
Though in the present case the appraisers’ report was not admitted in evidence, the amount of the appraisement and some of the reasons influencing the fixing of that amount were brought in by the testimony of the appraisers, and this was error. However, this evidence was brought out by questions which were allowed, as the court informed counsel and the jury at the time, for the purpose of fixing the basis upon which the witnesses fixed their judgment of the value of the
The effect of these instructions was to withdraw the evidence from the consideration of the jury, and we shall presume that the jury was guided by them, in the absence of any showing to the contrary. An instruction to disregard evidence will, as a general rule, cure the error committed by the court in admitting it. Elliott, App. Proc. §701; Citizens St. R. Co. v. Spahr (1893), 7 Ind. App. 23; Taylor v. Wootan (1891), 1 Ind. App. 188, 50 Am. St. 200.
This court will not reverse a canse where the error committed has been harmless to the one complaining. Such seems to be the ease here, and the verdict seems right on the evidence. It was shown that shortly before the condemnation, appellant Halstead had bought two-thirds of the entire property for a consideration which he testifies to as in fact $1,000, the amount named in the deed, but the vendor testified that the true consideration was $400. Nine years previously, said appellant had bought one-third of the property for $350, and during the period while he owned one-third, the building had been rented for about three years, and had returned in rentals scarcely more than the amount of the
The error in admitting the testimony in regard to the appraisers’ report seeming to have been harmless to appellant, the judgment is affirmed.