37 Ind. App. 264 | Ind. Ct. App. | 1906
This was a proceeding brought by the appellant to appropriate a strip of land, part of a farm owned by the appellee, for the purpose of constructing, maintaining and operating thereon its interurban street railroad, extending from the city of Indianapolis to various other cities, and running through said farm; the instru
The third instruction given to the jury at the request of the appellee was as follows: “In assessing the damages to the defendant’s land, you can not take into consideration any benefits or supposed benefits to his land, or to the lands of others, or to the community or public in general, by reason of the railroad’s being constructed and operated through the district.” In the eighth instruction given it was, in part, said: “You are not allowed to take into account any supposed benefit to Hamer by reason of the location of the road in that vicinity, in mitigation of damages.”
In our civil code of 1852 (2 R. S. 1852, p. 188, §683 et seq.)provisions were made for the “writ of assessment of damages.” Section 706 (2 R. S. 1852, p. 193) was as follows: “When any person, corporation, or company design to construct a canal, or railroad, or turnpike, graded, McAdamized, or plank road, or bridge, or establish a ferry, as a work of public utility, although for private profit, being authorized by law to take real property therefor,
In McMahon v. Cincinnati, etc., R. Co. (1854), 5 Ind. 413, a proceeding under section fifteen of this statute, it was said that this statute and the provisions of the civil code above mentioned were passed at the same session, relate to the same subject, and are not directly repugnant to each other, and that they may therefore be taken in pari materia, and considered as one enactment; that the assessment may be legally made by arbitrators appointed under the one act, or by jurors selected as prescribed in the other act, but that a deduction can not be made for any benefits that may be supposed to result to the landowner. See, also, Evansville, etc., R. Co. v. Fitzpatriclc (1858), 10 Ind. 120.
In White Water Valley R. Co. v. McClure (1868), 29 Ind. 536, a like proceeding under the railroad statute, it was said concerning the provision of the code forbidding deduction for benefits: “It was evidently the intention of the legislature, in enacting this provision, to change the old rule of assessment in such cases, and to require that property taken by these corporations should be paid for without regard to any benefit or enhanced value of: the residue of the owner’s property by the facilities afforded by the construction of the road.”
The statutory law concerning street railroads has developed, as have the uses of such railroads and the means and methods by which they are constructed and operated, from a simple beginning, for which sufficient provision was contained in the act of 1861 (Acts 1861, p. 75), relating to “street or horse” railroads upon and through the streets of cities and towns, whereby such companies were made capable of purchasing, holding and conveying the
We will not take space to refer particularly to the various enactments whereby the legislature has recognized and authorized suburban and interurban railways, and the change of motive power by the use of electricity. In 1901 the demand for electric interurban railways had increased to such an extent that it was deemed proper by the legislature to provide for their construction through lands mot within the limits of a street or highway. Acts 1901, p. 461, §5468a Burns 1901. Additional provisions were, by amendment of this statute, made in 1903. Acts 1903, p. 92, §5468a et seq. Burns 1905. While, in these statutes, the companies concerned are designated as street railroad companies, and the statutes purport to create rights, powers, liabilities and restrictions for street railroad companies, with reference to their interurban street railroads or suburban street railroads, they adopt for the appropriation of private property the existing methods for such appropriations for railroad companies under the statute of 1852, and by such special proceedings authorize such a company for such a purpose to enter upon, take possession of, hold and use all such lands and real estate and other property as may be necessary for the construction, maintenance and operation of its railroads, railroad stations, depots, power-houses, shops, car barns, offices, lines for transmission of electricity for heat, light and power for such companies or the public. In the section providing the method of appropriation the word “railroad” is used in the same manner as in the statute of 1852, supra, and that section, except in some respects not here, important, employs exactly the same language and prescribes the same proceedings as does the statute of 1852.
If, in comparing statutes, we discover the development of a system, and find therein, in a statute which we are seeking to construe, a modification of or addition to. the system, having reference to changed conditions, and the adaptation to the system, so far as such changed conditions are concerned, of methods before applicable alone to another system of preexisting legislation, we may find it reasonable to conclude that the legislature framed such modification or addition with reference to the rules of construction already announced by the courts with regard to such other system, under conditions essentially the same as those contemplated in such modification or addition.
Judgment affirmed.