168 Ind. 205 | Ind. | 1907
was a proceeding by appellant to condemn a right of way for a steam railroad over the lands of appellees. Appellant filed an instrument of appropriation in the office of the clerk of St. Joseph county, on June 18, 1904. On July 9, 1904, appraisers were duly appointed to assess the damages, who estimated the same at $491, and filed their award with the clerk, July 27, 1904. August 3, 1904, appellees filed their exceptions to the award. Upon these exceptions the proceedings were transferred to the St. Joseph Circuit Court. The question of damages raised by the exceptions was submitted to the jury October 17, 1904,
The record shows that the appellees are the owners of four forty<-acre tracts of land, three forties lying north and south, and the fourth lying immediately west of the north forty, thus giving the whole tract an “L” form. Appellant’s railroad traverses the west and north forty near the center, in a somewhat northeasterly and southwesterly direction. The Kankakee river lies a short distance to the northwest, and most of the appellees’ land and a large amount of other lands adjacent on the north, east and southeast form a part of the head-waters of said river. A short time before the commencement of these proceedings Mr. Studebaker, the owner of thé lands abutting on the Kankakee river, dredged a large ditch eastwardly through his land, to the lands of Mr. Kaufman. The latter in turn, beginning at the end of the Studebaker ditch, cut a drain, six feet at the top, five feet deep, and two and a half feet at the bottom, eastwardly through his land to the southwest corner of appellees’ north and west forty; thence appellees continued it, at the same size and depth, eastwardly along the entire side line of the last-named forty acres, and thence southeasterly across their other lands to the lands of Mr. Burroughs on the east, at which latter place it received, for conveyance to the Kankakee river, a large body of water collected and brought down from the east and southeast through a swale. The waters that flowed through the ditch came wholly from heavy rains or melting snows in the spring and fall, and before the construction of the ditch there was no channel of any kind across appellees’ land, and in times of heavy rains the waters would spread out over the marsh and the grounds of the plaintiff, and slowly make their way to the Kankakee river. At the point where the railroad- embankment crossed the ditch described, appellant put in a twenty-four-inch tile, claimed by some of
During the trial a witness was asked the following question : “Did you notice whether the tile was put in on a level with the bottom of the ditch? A. I should think it was about eighteen inches from the bottom of the ditch. The water is backed up from, time to time. It was when I was there.”
Appellant moved to strike out the following words of the answer: “The water is backed up from time to time. It was when I was there”—upon the ground that overflow caused by backing water was not a proper element of damage in a condemnation proceeding, because a recovery here would bar a future recovery in another action for future injury caused thereby; and for the further grounds that the damages should relate to the time of the filing of the instrument of appropriation, and that the damage for improper drainage cannot be recovered in this action because such damage grows out of negligence in construction. The real basis of many objections to the introduction of testimony is rooted in the fact that the trial of the exceptions to the award was so long delayed in the circuit court that the railroad was constructed and the witnesses afforded an opportunity to observe the actual—not imaginary—effects the construction had upon the value of appellees’ land. In the course of the inquiry observation by the witnesses was often referred to, and really took the place opinion would have held if the trial had occurred before the building of the railroad, but throughout the trial, while considerable latitude was allowed appellees in referring to present conditions, all evidence relating to drainage was clearly limited to the act of appropriation, and as computable of that date.
The principal contention between the pan-ties is this: Appellant maintains that the destruction or impairment of the drain described, as alleged, by building the railroad embankment across it, was the result of improper construction, and offered appellees a new and additional cause of action for damage that was not assessable in the first instance; while,-on the other hand, appellees contend that, the drain being an artificial channel, prepared for the collection and conveyance of surface-water, the railroad company, by its act of condemnation, acquired the right to obstruct it, and to prevent the water that flowed therein from crossing its right of way; and that in assessing the damage resulting to the farm, once for all, it was reasonable to anticipate that the company, in the exercise of its legal rights, would obstruct the ditch, and, therefore, the prospective loss of drainage was a proper element of damage to be considered in making up the award.
In this class of cases recoverable damages are tbe actual damages sustained by tbe taking, and tbe present and prospective damages to tbe remaining premises, to be arrived at in tbe most practicable and reliable way, and we know no better way of ascertaining sucb damages than by observing tbe actual effects upon tbe premises after tbe construction of tbe railroad is accomplished. In sucb cases it will be assumed tbat tbe road bas been constructed as contemplated at tbe time tbe right of way was appropriated, and tbat tbe' present, apparent damage would have been reasonably anticipated if assessed before construction. Witchita, etc., R. Co. v. Kuhn (1887), 38 Kan. 104, 108, 16 Pac. 75. A distinguished author states tbe proposition thus: “It is apparent tbat, when a part of a tract is taken, tbe damages to tbe remainder can never be satisfactorily estimated without knowing bow tbe works on tbe part taken are to be constructed. * * * If tbe works have actually been constructed before tbe damages are assessed, it bas been held proper to take into consideration tbe actual condition of tbe works as affecting' tbe damages.” 2 Lewis, Eminent Domain (2d ed.), §481, citing Union R., etc., Co. v. Moore (1881), 80 Ind. 458, and many other cases. Tbe insistence, tbat tbe inquiry into tbe manner of placing tbe tile through tbe embankment, and tbe extent to wbicb tbe water was thereby set back over tbe contiguous lands, should have been denied, because it exposed appellant to being mulcted in damage, for an act tbat would not bar a subsequent recovery for negligence, cannot be allowed.
Mr. Wigmore argues for a much broader rule than we have indicated (3 Wigmore, Evidence, §§1918-1926), and concludes the subject in these words: “The question must he asked on each occasion,—Can the jury he fully equipped by the mere recital of the data, to draw inferences ?—In other words, Can all the data he exactly reproduced by mere testimonial words and gestures ?”
There is no claim hut that the witness was qualified to speak, both as an expert on the subject of drainage, and from personal observation of the premises. Eacts, in such
Appellees’ land lay in a flat and marshy district. The extent of the water-shed that supplied the ditch was large, irregular and unknown, and could only be ascertained by a civil engineer. The fall of the water in its descent to the ditch, the obstructions on the surface and the character of the soil, were all matters to be considered in determining the sufficiency of the twenty-four-inch tile, and however clear and fortunate the witness might have been in describing the facts and conditions it is not at all probable that the jury were all sufficiently qualified from experience, or observation in similar affairs, duly to appreciate all the material facts when proved. While, on the other hand a witness who had had extended experience in observing' and studying such things might, upon actual view, form an opinion that would reasonably approach exactness." Heick v. Voight (1887), 110 Ind. 279.
Divers other objections to the giving and refusal of instructions are presented, but such objections have all been disposed of adversely to appellánt, by what has been said in former parts of this opinion.
We find no error in the record. Judgment affirmed.