This is аn original action instituted by the State of Indiana, in its sovereign capacity, praying for a writ of mandаte and prohibition, restricting and confining the respondent to its lawful jurisdiction in a certain highway condemnation suit originally filed in the Boone Circuit Court as Cause No. 20819, and subsequently venued to the Montgomery Circuit Court and docketed as Cause No. 32172, wherein the State of Indiana was plaintiff; and Noble Frank Denny and Glаdys Mae Denny, husband and wife, Troy H. Haney, d/b/a Downey Dunker Shops, and Ernest Smith and Robert Holmes, operatоrs of a drive-in and station, and Sinclair Refining Company, mortgagee, were the defendants.
*339 On December 3, 1958, this court issued its temporary-writ of mandate and prohibition, preventing and prohibiting the respondent from taking any further steps and proceeding further in Cause No. 32172A pending in said Montgomery Circuit Court, and further ordеring the respondent to show cause on or before the 7th day of January, 1959, why the writ should not be made permanent and Cause No. 32172 in said court be tried as a single cause.
Thereafter on January 6, 1959, the rеspondent filed his answer to the rule to show cause, praying therein that the temporary writ of prohibition heretofore issued be dissolved. On January 16, 1959, a brief was filed by Amicus Curiae for Troy Haney in support of the respondent’s answer.
The trial court relied on Acts 1935, ch. 76, §1, p. 228, being §3-1702, Burns’ 1946 Replacement, for authority in separating this cause. The pertinent part of that statute reads as follows:
“Sixth. That such plaintiff has been unable to agree for the purchase of such lands or interest therein or other property or right with such owner, owners or guardians, as the case may be, or that such owner is insane or an infant, and has no legally appointed guardian, or is a nonresident of the state of Indiana. All parcels lying in the county, and required for the same public use, whether оwned by the same parties or not, may be included in the same or separate proceedings at the option of the plaintiff; but the court or judge may consolidate or separate such proceedings to suit the convenience of parties and the ends of justice. The filing of such сomplaint shall constitute notice of such proceedings to all subsequent purchasers and рersons taking encumbrances of the property, who shall be bound thereby,”
*340 The State contends thаt the above statute does not authorize separate proceedings for each рerson holding an interest in a particular parcel of land, but can only be construed to provide for separate proceedings for the owners of separate parcels lying within thе area taken in a single project. In this proceeding the condemnation action was institutеd against a single tract of land but against several different interests in said parcel. It appears from the record that the fee simple owners were Noble Frank Denny and Gladys Mae Denny, husband and wife, that Troy H. Haney, d/b/a Downey Dunker Shops, held a leasehold interest in said real estate, and that Sinсlair Refining Company also held a leasehold interest in said real estate. '
The issues in this case turn on the question as to whether or not the trial court has statutory authority to separate this proceedings. From an examination of the statutory authority upon which the court relied, the cases cited by the parties to this litigation and a careful reading of the briefs filed herein, we must come to thе conclusion that the court had no stautory authority to so separate said cause of action. It is clear from the wording of the statute that the Legislature did not intend that the court separаte the cause of action as to all the various interests that might appear in the various parcels of real estate, but only as to parcels. 1
*341 • The temporary writ of prohibition heretofore issued is made permanent; the respondent is prohibited from continuing in Cause No. 32172A and directed to proceed in Cause No. 32172 as a single cause of actiom
Note.—Reported in
Notes
. In the case of
Kohl
v.
United States
(1876),
For the purposes of condemnation proceedings, the value of all the interests or estates in a single parcel of land cannot exceed the vаlue of the property as a whole, and that when the value of the property as a unit is paid to the various owners, or into *341 court for them, the constitutional requirements are fully met, and the fact that the owners of the various interests may not agree as to the apportionment among themselves of the sum awarded does not concern the condemnor.
The foregoing rule was approved also in the following cases:
State ex rel. McCaskill
v.
Hall
(1930),