184 Ind. 531 | Ind. | 1916
In accordance with the views of the majority, the court holds that the complaint proceeds on the theory that appellee was entitled to appropriate the land described under the conditions and limitations therein stated as hereinbefore set out, and that the allegations questioned in objection No. 3 are so linked with the other allegations of the complaint as to evince a purpose on the part of appellee to assert its right to condemn on these terms or not at all. Viewed in this light the complaint does not state facts sufficient to entitle the plaintiff to the relief asked, or to any relief, and the court erred in overruling objection No. 3 and in appointing appraisers to assess damages.
The interlocutory order appointing appraisers is hereby reversed with instructions to sustain specification No. 3 of objections filed by defendants and to grant plaintiff leave to amend the complaint.
Note. — Reported in 111 N. E. 802. As to the nature of the right of eminent domain, see 102 Am. St. 811. See, also, under (1) 4 C. J. 843; 3 Cyc 345; (2) 15 Cyc 850; (3) 15 Cyc 637, 638, 639.