*1 Company Public Service Indiana Northern McCoy et ux. 29,696. 1959.] March Filed
[No. *2 Lawyer, Friedrich, Petrie Tweedle, & Hamond, Sammons, George Sammons & Sammons, F. Kentland, appellant. for Pappas, Pappas J. Garrett,
Chris & Charles K. Whitted, Whitted, Gary Strom & all of Barce, and John Kentland, appellees. Appellant, an public
Bobbitt, Indiana utility cor J. brought poration, action appropriate right-of- this power way purposes line across certain lands of *3 County, Lake appellees in Indiana. report appraisers in
The their damages awarded in $1,650. of report To this appellees the amount filed alleging damages exceptions written to be inade- by jury subsequently quate. had, A trial and a assessing damages returned in verdict the sum of Judgment $7,025. was rendered in the amount of the verdict, $1,173.34. in plus interest the sum of overruling.of appellant’s motion for
The a new trial assigned. grounds specifi- 13 error While or the sole is assigned are and therefor discussed in cations argument brief, appellant’s shall, we section because only reached, pertaining consider those the result on the amount of of certain evidence to the admission damages. consists of acres property here affected
Appellees’ triangular shape. The easement terrain, in of level strip 100 feet wide of a sought by appellant consists tract. of the entire by off the east side parallel lines extending Park,” “Independence subdivision, called A property boundary of the along the entire western fully populated. and is now opened in 1939 herein was appellees’ property separated are This subdivision open “prob- an ditch which drains excess water sewage” ably processed by septic is first tanks. Immediately appellees’ to the and east prop- north erty improved Brantwood Addition to the lies Town Highland. boundary appellees’ prop- The east line dividing Highland. erty line between is the Munster Immediately unimproved east is subdivision of only appellees’ Melody Lane access to Gardens. trial time of the herein property was Martha wide, unimproved, feet is 40 runs east and Street. Highway No. connects to 41. west 1952 the herein was rezoned Sometime residence, contempla- “B” “A” Class from Class plan present preparation of a or tion of approval. of Munster This first Board Town approved, immaterial, for reasons here but was not year appellees’ Exhibit later in same No. was approved allegedly prepared and Town Board However, appellee-Robert McCoy F. of Munster. testi- cross-examination, fied, Exhibit No. was a approved plat” “tentative and was never either Planning Board Town Commission Munster. plats tract of land Three other *4 1, prepared No. not after Exhibit but is shown that any regularly approved them was ever recorded.
Further, cross-examination, appellee-Robert F. on McCoy : testified follows “Q. [Appellees’ it ever recorded? Exhibit Was No. 1.] No, six-, “A. it wasn’t ever recorded.
“Q. today ground So that this platted ground, is not
is it? No,
“A. it isn’t.
“Q. acreage, It is isn’t it?
“A. present At the time it acreage, is certainly it has acreage.
to be “Q. Well, it acreage has been all the you time have it,
owned hasn’t it been? right.”
“A. That is Appellee-Robert McCoy F. further testified that lots taken the condemnation for the ease- sought by ment $15,000. was said, “Well, He put I $15,000, value at there was ten lots at $1500 each through 37, numbered 28 inclusive, [lots as shown on defendants-appellees’ Exhibit No. and ten times 1] $15,000.” is $1500 Shafer,
William M. appraiser, real estate testified appellees as a “predicated witness that the sub- on land, lots, acreage” divided not on prop- erty by appellant was, 15, 1953, taken on October worth $16,500. Smith, appraiser,
Earl V. also a real estate testified appellees aas on the witness based value of through inclusive, lots numbered as shown foot, front certain Exhibit No. less deduc- $30 material, damages the net “to lots 28 to not here tions $19,750. 1” to Lot inclusive this testified if On cross-examination witness improved platted into lots and not his direct exami- purposes, statement for residential *5 306 same, damages b'een the would not have
nation as to damages would have been less. and that the amount of Three as to the witnesses testified damages. appraisal amount of All based their on the acreage value of the on land as and not lots as shown defendants-appellees’ 1. One of wit- Exhibit No. these rights” was, nesses that the testified value “the taken 1953, 15, $1,000; October strip another that ground was, date, covered the easement on such $1,526; worth and the strip other that such had fair market (October 15, that 1953) time $2,205. ample
There is evidence jury might from which the have that concluded tract of land was best adapted to, and most for, available residential purposes. However, appellees’ direct evidence as to value was all upon based the individual value of each lot as shown preliminary plat which was introduced in evi- defendants-appellees’ dence as Exhibit No. 1. There is no evidence that the lots as shown on the preliminary (Exhibit 1) improved No. any residential use manner.
Appellant asserts it that error admit into evidence, timely objections, defendants-appel- over 1 “Preliminary No. lees’ Exhibit which is a Plat McCoy Munster,” proposed Addition to it is because proper plat to be used in relation to evidence sought appellees to elicit from witness for the approval of not bear the the Town it does reason and does not show of Munster was ever Board recorded. required to by statute are subdivisions “Plats of Acts Replacement, recorded, §48-801, 1950 Burns’ 219; approved 129, §246, p. 1905, ch. §48-802, works, Burns’ public the board 1905, 129, §247, Replacement, Acts ch. 1950
307
p. 219. Plat
kept
books
in the office of
county
public
recorder are
records,
Miller v. The
Indianapolis
(1890),
et al.
Ind.
N. E.
228;
recording
and the
of a
of a subdivision is
notice to the world of the dedication of streets and
alleys and of the restrictive
therein
covenants
con
288,
Pyne
tained. Backer v.
(1892),
et
al.
Ind
30 N. E.
231;
30 Am.
Rep.
Keesling
St.
et al. Doyle (1893),
App.
Ind.
126; Spen
35 N. E.
cer Stone
(1915),
Co. v.
App. 64,
Sedwick
58 Ind.
*6
Wischmeyer
be sold. The provided of the as subdividing statute the confirms of the land in the purposes manner and for shown plat, including notice of the dedication of all streets alleys. Also, plat proposed and until the of a subdivision is recorded there can be no assurance that there will changes lots, layouts not in the of be size and of streets dedications, alleys, any, restrictions and if or the use subdividing. might purpose plat The be altogether, plans proposed abandoned or several prepared appellees done in have subdivision provided plat case bar. Until the is recorded as statute, prospective purchaser has no assurance established, the lots that a subdivision will ever be nothing are more than lines shown thereon streets brings recording paper. The act of subdivision on reality a mere being of of it a instead into and makes proposal of the sub- paper a tentative outline on divider. lots, streets plat
A land into is a division of they identified. alleys, represented paper so can be 308 (1953), 750, 61 N.
Gannett v. Cook
245 Iowa
W.
707;
Thompson
(1912),
2d
Hill
Ga.
v.
Boundaries,
S.,
640, 643;
E.
11 C. J.
73 S.
§4, p.
City
543. See also: Chandler et al.
v.
295, 298,
(1894),
et
Kokomo
al.
Ind.
Since Exhibit No. required by repre recorded as statute the land legal sented thereon is not subdivision Munster, therefore, must, and it be con Town of unplatted acreage or sidered as land determining eminent domain purpose of an then follows proceeding herein. such as competent defendants-appellees’ No. was not Exhibit appellees’ property the value evidence show they damages, any, if entitled. amount *7 governs ably here is stated which The rule Domain, Ed., 3d on Eminent §12.3142 Nichols [1], p. as follows: land is so that if situated is that “It well settled building purposes, actually for it value for such available is considered, even purposes be and farm is covered with brush a if it is used as not, compensation is of The measure boulders. however, aggregate prices of the lots into of divided, best since could the tract be which land, cleaning improving the off and expense of lots, advertising dividing streets, it into laying out holding same, paying it and selling and and disposed are until the lots all interest ignored and taxes conjec- uncertain is too and and be cannot computed. compensa- to measure The be tural whole, a tion is the market of the land taking building consideration its value into for purposes if that most use.” is its available Pennsylvania Such rule is also stated in R. S. V. Cleary (1889), 468, Co. 442, 125 Pa. 17 Atl. 470, page Rep. Am. St. as follows: “Equally showing improper is evidence how building many the tract under lots consideration into, could be divided and what such would lots be separately. proper worth tract which not inquire is to what the worth, having is purposes view the it adapted; is best tract, but it is the might the lots into which it divided, be that is to be valued.” The true value of the tract of question land here in on 15, 1953, October might was not what it be if worth improved lots, subdivided and sold as but rather what purchaser a willing would have been pay to for it in the condition in it was that date.
Appellees contend that Exhibit No. 1 proper was to show most suitable use of their land and its adapt- ability use, rely upon to The Valley Ohio Rail- way Company Terminal (1892), v. Kerth 130 Ind. support to position. 30 N. E. their proceeding by Kerth Case was Railway Company strip to condemn a of appellee’s land right-of-way purposes. Such land was situated three-eighths corporate a mile from limits Evansville, appellee’s between City land and lay platted city. city addition to limits his contended that land was so
Appellee-Kerth situ- growth that, ordinary of the in the Evans- ated part necessarily become ville, residence it would city; it so situated and the portion of the as make valuable was such quality soil *8 purpose city; of platted part and for the as a the showing purpose for the adaptability of the land city appellee- platting an addition the same as map prepared, Kerth offered in evidence a he had showing the land into lots of certain how would divide dimensions, points and at what and in what manner through city of the would it. extend “It was streets platted, the land not contended was or that platted appellee entitled to recover it land, as contended one it was element but of value that land had was its location in proximity the tract close large and-growing city, to a and its susceptibility to platted property and be used as residence made it more (Our it than otherwise would valuable be.” emphasis.) plat.was map solely admitted purpose or for the showing .susceptibility of the tract of land to platting to purposes, and its residential adaptability as. by the jury, is evidenced court’s instruction to the as . page Ind., stated at 318 of 130 as follows: “ ‘You take should and situation as by the it has been to be evidence at the time shown appropriation. any map In so far as or put plaintiff in evidence in this cause shows land, you plaintiff’s lots and streets laid off should not consider it it, as is conceded that no ground exist, platted. and the not been streets has map In so far said shows size of land, tory, the actual condition shape relation to other terri- its form it, may you may when it show consider right land and the said ” railroad, way you consider it.’ right jury to there held that had the This court the value of the land into consideration take. Evansville, an addition platted as proper appellee-to for the and that was show that purpose, and that this adaptability *9 might ap~ by map plat the use of a or such as be done prepared. pellee-Kerth had position support appellees’
The Kerth Case lends no to clearly the record in the at bar because case discloses question 1) the (appellees’ here in Exhibit No. establishing solely purpose was introduced for the by the computing aggregate value of their land might they value of the lots as exist if the land legally existing constituted presently subdivision Munster, the Town of and not for purpose showing its most suitable use or its susceptibilty to platting as in the Kerth Case.
Appellees’ position here is that their platted land is a subdivision of the Town of Munster. In the Kerth Case it was not contended that the tract of land was a platted subdivision, nor did the defendant-appellee there attempt to establish the by showing value of land aggregate value of the lots as indicated on the map or plat introduced in evidence. drawing introduced in evidence here appellees’ showing
as proposed Exhibit No. plan subdividing question lots, the land in into did not per change acreage se such land from platted lots legally in a established subdivision. foregoing
For it was reasons error for the defendants-appellees’ trial court to admit Ex hibit No. into evidence.
Appellant admit, that it further was error asserts timely witnesses, objections, testimony over McCoy, Smith, ap as to the value of Shafer pellees’ affected the condemnation suit through upon the value of lots 28 herein based inclusive, defendants-appellees’ Exhibit as shown acreage taken the land was 1 for the No. reasons regularly improved subdivision lots certain agree. legally this we With established. McCoy, and Smith
Testimony by witnesses Shafer upon the appellees’ property based as plat, preliminary de- lots shown value of upon a fendants-appellees’ Exhibit No. is based false since, premise fact, by appellee- and as admitted McCoy, no lots existed. The effect of Robert F. such give testimony jury a is to sense of value such false resulting awarding land in the excessive damages. and erroneous duty jury here to determine *10 having taken, of land in mind the of the tract
value adapted. They it could not purposes for which was best might price lots sell if the land at what determine legally a subdivision. established damages the difference be The measure of here.is selling price land, the tract as the fair tween entry acreage, occupa after the before and utility. public 11 Ind. Law the tion Domain, §53, pp. Eminent Encyc., Vol. 611. testimony this from the jury not determine could Smith, witnesses, McCoy, Shafer who
of the three solely property upon of the the to the value as testified aggregate value lots shown conjectured incompetent map which was plat or preliminary purpose for it which was clearly inadmissible admitted. testimony error admit these reasons
For of the as to witnesses three of these involved.
Because have reached and result which we trial, they new unlikelihood recur on a will unnecessary questions we deem it the other consider argument by appellant sec- raised in the discussed tion of its brief. noted, judgment
Because errors above of the trial court must be reversed.
Judgment with instructions reversed trial grant appellant’s court to motion for new trial. Jackson, JJ., Achor and concur.
Landis, J.,C. opinion. dissents with Arterburn, J., opinion. dissents with
Dissenting Opinion J. The resultof the decision seems to Arterburn, me to be that land will have one day value the before a plat is recorded and another day value on the after the believe, plat is filed in the Recorder’s office. I do not recording mere of a can upon have such effect unplatted values land in such short I time. think purpose unplatted for which may land be used affecting shown in evidence as its value. proposed that a follows subdividing method of land, by any plat as shown and how it can thus be most effectively subdivided value, to enhance its is a matter *11 jury, for the consideration of the whether recorded or otherwise, every not. If we hold it behooves owner get unplatted plat to land a on file at once and before proceedings. institutes condemnation someone The fact plat a is recorded or not recorded does not alter prospective platted of land use as the value real competent jury evidence is for the estate. Such con determining a other facts “fair with market sider 314 City et Kokomo al. et al. v.
value.” Chandler Valley 847; (1894), 295, The Ohio 137 Ind. 36 N. E. Railway (1892), Company and Terminal v. Kerth 130 314, 30 E. Ind. N. 298.
Dissenting Opinion Landis, plat I cannotsee how an unrecorded C. J. per of real can be rendered estate inadmissible se simply requires a statute that: lay . “Any person any who off . or . town shall, previous . .. . . lots . subdivision [therein] any lots . . . sale cause [therein] recorded office ... a recorder’s correct ,”1 town, subdivision, of such ... . . particularly is to a true as This offered a de- fendant and in condemnation suit such case at bar, proceeding attempting as such to force an invol- untary sale on defendant could be considered as a voluntary sale under statute. (plaintiff below) plat,
Had contended the admitted, only jury if could be considered purposes, have should offered limited instructions to effect; authority for the well settled such is that on limiting for instructions failure to ask evidence to its question legitimate purpose, is waived. The (1881), Lowery, 520, Administratrix Delphi 74 Ind. v. 98; Rep. Indiana Union Traction 524, Co. Am. App. 566, 580, 180, (1912), Ind. 96 N. E. Pring 185. 2d Note.—Reported in N. E. 181. §48-801, Replacement, being Indiana Statutes Burn’s 1. §246, p. 1905, 129, Burns’ 219. should be noted that ch. Acts of ch, being p. Replacement, §248, §48-803, 1950 Acts applicable. not here is