166 Ind. 511 | Ind. | 1906
—This is a special proceeding by appellee company (hereafter called appellee) whereby it seeks to condemn certain lands for a right of way under and in pursuance of an act of the legislature entitled “Ah act concerning proceedings in the exercise of eminent domain,” approved February 27, 1905, and in force April 15, 1905 (Acts 1905, p. 59, §893 et seq. Burns 1905).
Appellee, as plaintiff below, on May 25, 1905, filed its complaint in' the office of the Superior Court of Marion County, such county being the one in which the lands sought to be appropriated are situated. By the complaint appellants and other landowners were made defendants. Proper notices or summonses were issued by the clerk and were duly served by the sheriff. By these notices they were notified to appear in court June 10, 1905, and show cause why the property described in the complaint should not be condemned. So far as the record discloses, appellants first appeared to the proceedings on June 19, 1905, and at that time filed their written objections to the proceedings under the original complaint. There is nothing in the record to show that appellee, at the time the objections were filed, interposed any protest or objection to their filing. After the filing thereof and on the same day, to wit, June 19, 1905, appellee, by leave of court, filed an amended complaint, and thereupon appellants, by permission of Court, renewed and refiled their written objections to the proceedings as presented by said amended complaint. By the latter complaint appellee alleged, among other things, the following: “That the plaintiff, Indianapolis & Western Railway Company, is a street railway corporation, organized pursuant to the laws of the State of Indiana regulating and authorizing the construction, maintenance and operation of street railroads, interurban street railroads and suburban street railroads, and that it was incorporated as a street railroad company for the purpose of constructing, maintaining and operating an interurban street railroad from the city of Indianapolis,
The grounds of the written objections interposed by appellants to the proceedings, under the amended complaint, are the following: (1) That the plaintiff has no right to exercise the power of eminent domain to the extent to which it proposes to appropriate the property of the defendants. (2) That the plaintiff in and by its amended complaint does not state facts which show that it is entitled to exercise the right of eminent domain to the extent proposed and attempted in and by these proceedings. (3) That under the statute under which the plaintiff is incorporated, which constitutes its charter, it is authorized to exercise the right of eminent domain and appropriate so much land only “as may be necessary for the construction, maintenance and operation of its railroads, railroad stations, depots, power-houses, shops, car barns, offices, and' lines for transmission • of electricity for heat, light and
The record shows that appellants demanded that the court accord them a hearing on the issue of facts formed by the averments of the amended complaint and the written objections thereto and demanded the right to introduce testimony upon such issues. This demand the court, over appellants’ exceptions and objections, denied, for the reason, as stated by the court, that under the procedure of the statute upon which the action was based it had no power to hear any testimony on any issue of fact raised by appellants’ written objections, and thereupon, without any hearing, it overruled said written objections, to which
It appears that appellee’s counsel thereupon tendered to the court, for entry in said cause, an interlocutory order and decree which they had previously prepared. To the entering of this or any other interlocutory order in the cause appellants, by counsel, objected for the following reasons: (1) That the plaintiff had not introduced or submitted any evidence in the cause to sustain any of the allegations of the complaint herein; (2) that there is and has been no evidence submitted to the court to sustain any of the facts and allegations alleged in the complaint, nor any evidence to sustain the facts found in the decree and interlocutory order; (3) that no evidence has been submitted to the court, and the court has no knowledge and information upon which and from which the facts found in the decree could be based; (4) that said decree is submitted by the plaintiff and is entered by the court without the introduction or submission of any evidence in the cause by any of the parties thereto. These objections the court overruled and then announced that it would enter said interlocutory order and decree as requested by appellee, which it accordingly did, and the same is the order or decree from which this appeal is prosecuted. After the entry of this decree appellants filed a motion to strike it out, assigning in said motion as a reason therefor that no evidence had been submitted to the court and that, therefore, the court had no jurisdiction to make or enter the interlocutory order in controversy. This motion was overruled, to which appellants excepted. Appeal prayed for and taken as provided by the statute.
The errors assigned for reversal of the interlocutory order in question are: (1) That the court below had no jurisdiction of the subject-matter; (2) that the court below erred in overruling the objections of the appellants to the
The contention of appellants’ counsel in the main is that the court denied them, at the preliminary hearing provided for by the statute, the right to be heard on the essential facts relative to appellee’s right to condemn and appropriate their lands, as it sought to do under its complaint. The insistence is that, if the construction or interpretation placed upon the statute in question by the court is correct, then the law is in conflict with both the federal and state Constitutions. In fact the questions discussed by the respective parties to this appeal are principally based upon or relative to the proper construction of the statute. It therefore becomes necessary that we refer to the several provisions of the act in question so far as they are material to the proper determination of this appeal.
Section one (§893 Burns 1905), among other things, provides: “Any person, corporation, or other body having the right to exercise the power of eminent domain for any public use, under any statute, existing or hereafter passed, and desiring to exercise such power, shall do so only in the manner provided in this act except as otherwise provided herein. Before proceeding to condemn, such person, corporation or other body, may enter upon any land for the purpose of examining and surveying the property sought to be appropriated or rights sought to be acquired; and
Section two (§894 Bums 1905) provides: “If such person, corporation or other body shall not agree with the owner of the land, or other property or right or with such guardian, touching the damages sustained by such owner, as provided in the last section, the person, corporation or other body so seeking to condemn may file a complaint for that purpose in the office of the clerk of the circuit or superior court of the county where such land or other property or right is situated. Such complaint shall state,” etc. (Here follows what the complaint is required to state.)
Section three (§895 Burns 1905) provides that upon the filing of the complaint the clerk shall issue a notice, which shall contain the names of the parties, a general description of the whole property, etc., and require the defendant to appear on a day to be fixed by the plaintiff by indorsement on the complaint and show cause why the property described should not be condemned as prayed for in the complaint. (Our italics.)
Section four (§896 Burns 1905) provides: “Upon return of such notice showing service thereof for ten days, or proof of publication for three successive weeks in a weekly newspaper- of general circulation, * * * the last publication to be five days before the day set for the hearing, * * * the court or judge in vacation being satisfied of the regularity of the proceedings, and the right of the plaintiff to exercise the power of eminent domain for the use sought, shall appoint three disinterested freeholders of the county to assess the damages, or the benefits and damages, as the case may be, which the owner or owners severally may sustain, or be entitled to, by reason of said appropriation.”
Section five (§897 Bums 1905) reads as follows: “Any defendant may object to such proceeding on the ground
Section seven (§899 Burns 1905) ■ provides that if the plaintiff shall pay to the clerk of such court the amount of damages thus assessed, “it shall be lawful for such plaintiff to take possession of and hold the interest in the lands so appropriated for the uses sought in such complaint subject to the appeal provided for in section five of this act, but the amount of such benefits or damages shall be subject to review as provided in the next section.”
Section eight (§900 Burns 1905) is as follows: “Any party to such action aggrieved by the assessment of benefits or damages, may file written exceptions thereto in the office of the clerk of such court in vacation, or in open court if in session, within ten days after the filing of such report, and the cause shall further proceed to issue, trial and judgment as in civil actions; the court may make such further orders, and render such findings and judgments as may seem just. Such judgment as to benefits or damages shall be appealable by either party as in civil actions to the Appellate or Supreme Court.”
It is not clear whether the clause “first appearance of such defendant” contemplates or intends the day upon
In the language of the notice or summons provided by section three, such owner is required to appear on the day fixed and show cause why his property should not be condemned, as prayed for in the complaint. At what time, then, and by what method, is he required to show cause in opposition to the plaintiff’s asserted right to condemn his lands under the proceedings ? The answer to this must be: at the time he is required to appear before the judge or court, and by the method or procedure prescribed by section five, namely, by filing his written objections. By entering an interlocutory order or decree the court or judge thereby determines the legal right of the plaintiff to appropriate the property of the landowner for the purpose or use set out or assigned in the complaint.
It will be noted that the first section of the statute in controversy provides that any person, corporation, or other body having the right to exercise the power of eminent domain for any public use, under any existing statute, before proceeding to condemn, “shall make an effort to purchase for the use intended such lands, right of way,” etc. It is apparent, then, that among the essential facts which constitute the very foundation of the proceeding at bar were that the plaintiff is a corporation which, under a statute of this State, was invested with the right to exer
Had the provision of section five, namely, “or for any other reason disclosed by the complaint,” ended with the latter word instead of proceeding to declare “or set up in such objections,” then there might be room for appellee’s contention that the written objections provided for merely take the place of a demurrer in ordinary actions and were not intended to be employed in any other manner. As previously asserted, the plaintiff, under the statute in question, must by the facts alleged in his complaint show that he is entitled to the right which he seeks to secure. If the complaint shows that the court in which the action is instituted has no jurisdiction of the subject-matter, or that, by reason of the absence of averments therein of material facts, it
Section five, as we have seen, after stating, the reasons or grounds upon which a defendant may object to matters disclosed on the face of the complaint, further declares, “or for any other reason * * * set up in such, objections.” This provision is in harmony with the authorities which affirm that in a proceeding to condemn and appropriate property under the law of eminent domain, the defendant may, by a proper pleading, interpose objections which exist in point of fact, but do not appear upon the face of the petition or complaint. 15 Cyc. Law and Proc., 866.
istence, therefore, being assailed or called in question, it, under the circumstances, was required to show at the hearing that it was either a de jure or a de facto corporation. While there is a conflict in authorities upon the question as to whether a corporation which is such only de facto may maintain condemnation proceedings under the law of eminent domain, nevertheless the great trend thereof affirms that it can. This rule accords with our judgment, and to it we accordingly adhere. As supporting the rule, see the following authorities. Aurora, etc., R. Co. v. City of Lawrenceburgh (1877), 56 Ind. 80; Aurora, etc., R. Co. v. Miller (1877), 56 Ind. 88; 3 Elliott, Railroads, §957; 15 Cyc. Law and Proc., 867, 868; Niemeyer v. Little Rock, etc., Railway (1884), 43 Ark. 111; Spring Valley Water Works v. San Francisco (1863), 22 Cal. 434; Union Pac. R. Co. v. Colorado Postal, etc., Co. (1902), 30 Colo. 133, 69 Pac. 564, 97 Am. St. 106; Brown v. Calumet River R. Co. (1888), 125 Ill. 600, 18 N. E. 283; St Louis, etc., R. Co. v. Belleville City R. Co. (1895), 158 Ill. 390, 41 N. E. 916; Reisner v. Strong (1880), 24 Kan. 410; Portland, etc., Turnpike Co. v. Bobb (1889), 88 Ky. 226, 10 S. W. 794; Briggs v. Cape Cod, etc., Co. (1884), 137 Mass. 71; Schroeder v. Detroit, etc., R. Co. (1880), 44 Mich. 387, 6 N. W. 872; Traverse City, etc., R. Co. v. Seymour (1890), 81 Mich. 378, 45 N. W. 826; In re Minneapolis, etc., R. Co. (1887), 36 Minn. 481, 32 N. W. 556; National Docks R. Co. v. Central R. Co. (1880), 32 N. J. Eq. 755, and cases cited; Wellington, etc., R. Co. v. Cashie, etc., Lumber Co. (1894), 114 N. C. 690, 19 S. E. 646; Farnham v. Delaware, etc., Canal Co. (1869), 61 Pa. St. 265, 271; Postal Tel. Cable Co. v. Oregon, etc., R. Co. (1901), 23 Utah 474, 65 Pac. 735, 90 Am. St. 705; Oregon, etc., R. Co. v. Postal Tel. Cable Co. (1901), 111