192 Ind. 67 | Ind. | 1922
Appellee filed its petition to appropriate a right of way for its electric power line extending approximately in a straight course across certain lands, which included the appropriation of eight tracts, each thirty feet square, something less than eight hundred feet apart, with the right to swing wires twenty-five feet above the ground from each of such tracts to the next one, and to maintain such line of wires, and the right to clear off the brush and timber thirty feet on either side of the center line of such wires. The lands across which the right of way was sought were described in the petition by reference to their location in certain sections, townships and ranges in Lawrence county, Indiana, from which it appears that they are near the east fork of White river, eight or ten miles southwest of the city of Bedford. The petition alleged, in substance, that the plaintiff (appellee) was a corporation organized under the laws of Indiana for the formation of companies for the manufacture and sale to towns and cities and to the public of electricity for heating, lighting and power purposes; that it had constructed and was operating an electric power plant at Edwardsport, Indiana (about thirty miles west of said lands), in which it produced and would continue to produce electric current for said purposes, and was engaged in building a line of high tension steel tower transmission wires from said producing plant, to a distribution plant at Williams, Indiana, just east of the land sought to be appropriated, which latter plant, it alleged, was owned and operated by the Southern Indiana Power Company for the distribution and sale of electric current for lighting and power purposes to customers in certain named towns and cities and at indus
Appellants’ brief states that this appeal is prosecuted for the purpose of testing the sufficiency of the complaint, and no attempt had been made to present any other question for review.
The sufficiency of the facts alleged in a complaint to constitute a cause of action cannot be questioned by an independent assignment of error on appeal, as has been attempted. §§348, 933 Bums 1914, Acts 1911 p. 415, Acts 1905 p. 59; Robinson v. State (1912), 177 Ind. 263, 266, 97 N. E. 929; Van Spanje v. Hostettler (1918), 68 Ind. App. 518, 119 N. E. 725.
There was no -request to make the complaint more specific. An exception by appellants to the com-plaint, by way of a demurrer which challenged its sufficiency in several particulars, was filed by
The failure to allege any facts which the statute does not require the complaint in an action of this kind to allege is not cause for an exception by way of demurrer. If facts existed, in addition to those which the statute required the complaint to allege, by reason of which the plaintiff corporation (appellee) was not entitled to exercise the power of eminent domain, such facts constituted matter of defense to be affirmatively pleaded by way of exceptions tendering issues of fact.
It was objected that the complaint did not state what use appellee intended to make of the eight tracts, each thirty feet square, as described therein. But we think it sufficiently appears from the facts pleaded that steel towers were to be built thereon, upon which to. carry a line of high tension transmission wires, for the carriage of electric current for light and power to be sold and distributed to the public. The allegations as to the kind of corporation by which the suit was brought, the business in which it was engaged, and the use to which the lands taken would be put, sufficiently disclosed what interest in the lands appellee sought to condemn.
Describing appellee’s electric power line as extending from Edwardsport to Williams, across certain named counties, and as crossing appellants’ several bodies of land on a line extending from center to center of the several tracts, thirty feet square, which were specifically described, with rights in the lands, as stated, to a distance of thirty feet on each side of such line, was a sufficient description of the location, general route and termini of appellee’s proposed right of way, in the absence of an attempt to require that the complaint be made more specific, at least. Appellants could not have been misled by such allegations, and if they were in doubt as to the meaning, an exception on the ground that the complaint was not sufficiently specific to be clearly understood was the proper remedy.
The facts stated in the complaint were sufficient, under the statute, to give the court jurisdiction, and to withstand the exceptions by way of demurrer which were filed by appellants.
The judgment is affirmed.