43 Ind. 328 | Ind. | 1873
The appellant is a corporation organized under the act of May 12th, 1852, on the subject of plank, macadamized, and gravel roads, 1 G. & H. 474, and this was a proceeding commenced before a justice of the peace under the seventh section, to condemn and appropriate land of the appellee for a right of way for the road of the company. Damages were assessed in favor of the appellee before the justice of the peace, and the company on the same day, that is, the 8th of July, 1869, appealed to the circuit court, having filed the necessary appeal bond. The certificate to the transcript of the justice of the peace bears date July 26th, 1869. On that day the appellee herein also filed with the justice an appeal bond and prayed an appeal, which was granted. It appears that the justice made an entry on his docket of the taking of the appeal by the appellee, a separate transcript of which entry he made out and certified at the same date, the 26th of July 1869, -and which, together with the transcript of the proceeding down to and including the taking of the appeal by the appellant herein, and the two appeal bonds and other original papers, he filed with the clerk of the circuit court at the same time, that is, the 26th day of July, 1869. The cause, on appeal in
It is assigned for error in this court that the circuit court erred in overruling the appellant’s motion for leave to withdraw the transcript; in overruling the appellant’s motion to dismiss the appeal of the appellee; in permitting the appellee to perfect his transcript; in assuming jurisdiction of the appellee’s appeal after appellant’s appeal had been dismissed; in overruling appellant’s motion for a new trial; in overruling appellant’s objection to a judgment being rendered-against him; and in overruling the appellant’s motion in arrest of judgment.
With reference to the motions to withdraw the transcript, to dismiss the appeal of the appellee, and allowing him to perfect the transcript, etc., we are of the opinion that there was no error in the rulings of the court. It is assumed by
Several reasons were assigned for a new trial. The one which seems to be relied upon here is that calling in question the correctness of the following instruction given by the court to the jury: “The value of the land appropriated, together with any injury to the residue of the land from which it is taken, naturally resulting from the appropriation and the construction of the road thereon, such as cutting the fields into an inconvenient and ill shape, destroying the conveniences and advantages of water for stock to a portion of the farm, and rendering an additional amount of fencing necessary to a safe and proper use thereof, are all proper matters to be considered in estimating the damages in such cases.” This instruction is conceded to be taken from the language of this court in The Whitewater Valley R. R. Co. v. McClure, 29 Ind. 536. But it is claimed that it was erroneous because not applicable to the case made by the evidence in this action. The evidence being all’ in the record, the instruction must, of course, be considered with reference to it. The company appropriated sixty feet in width of the land running diagonally through the north part of an eighty-acre tract of the appellee, making a little less than two acres. A county road runs east and west along the north side of the tract. The road of the company cuts off about ten acres in a triangular form between it and the county road. The j ury found specially in answer to interrogatories, that the company appropriated two acres, less four rods, worth $88.87^; that Stockton suffered damages in the sum of two hundred dollars, on account of having the ten acres cut off and left in an isolated condition, leaving it in a bad-shape; and the further sum of one hundred and two dollars, on account of having the residue of the tract reduced to a bad shape. The general verdict was for the aggregate of these amounts, $390.87^. The whole eighty-acre tract was in timber, and had never been under cultivation. The objection urged against
So far as the instruction relates to fencing rendered necessary by the running of the road of the appellant through the land, it is enough to say that nothing seems to have been allowed by the jury on that account. We do not see any valid objection to the instruction in question, taken in connection with the evidence. The damages are assessed in such cases, once for all, and the jury should look to every circumstance present and future, which affects the present value of the land, resulting from the appropriation. The evidence fully warranted the jury in finding as they did, as to the different items going to make up the aggregate amount of the verdict.
The judgment is affirmed, with ten per cent, damages and costs.