166 Ind. 316 | Ind. | 1906
—This is an appeal from proceedings instituted by appellee, an hydraulic company, to condemn property under and by virtue of §1833 et seq. Burns 1901, §3702 et seq. R. S. 1881. After the filing of an amended instrument of appropriation, appellant entered a special appearance and moved to quash the service. This motion was overruled, and appellant then filed ten objections to the appointment of appraisers. These objections were overruled, and appraisers were appointed. They subsequently filed their award of damages in the clerk’s office, and within ten days thereafter appellant filed twelve exceptions to the award. The first exception went to the assessment of damages, and the ninth exception alleged that the appraisers made their assessment under the supposition that the lands described in the warrant contained seven and three-quarters acres, whereas in truth and in fact there were twenty-nine acres embraced within said description. The remaining exceptions went to the authority to condemn, the sufficiency of the instrument of appropriation, and the regularity of the proceedings. On the ■motion of appellee, the court "struck out all of said exceptions except the first and ninth. On said issues the cause was tried without the intervention of a jury, and the court entered a finding and judgment affirming the award of the appraisers. Appellant filed a motion for a new trial, assigning as grounds therefor that the finding of the court was not sustained by sufficient evidence and that it was
Errors are assigned as follows:
“(1) The court erred in overruling the motion of William L. Stoy, made on special appearance, to set aside and quash the notice given by the plaintiff of. the appropriation. (2) The court erred in overruling the objection of appellant, William L. Stoy, to the appointment of appraisers to appraise the damages he would sustain by reason of the appropriation of his real estate. (3) The court erred in overruling the motion of appellant, William L. Stoy, for a new trial. (4) The court erred in rendering final judgment in said cause.”
Under these assignments appellant’s counsel urge that it is not shown that the use for which the land is sought to be appropriated is a public one, hut, on the contrary, that it appears affirmatively from the instrument of appropriation that the water-power is desired to generate electricity for the purposes of sale; that the statute is unconstitutional if it purports to authorize such an appropriation; that the instrument of appropriation does not show that the river is at least sixty-five feet wide; that, under the facts set up by appellant in his exceptions, appellee is not a duly organized corporation; that the service upon appellant was insufficient, and that the motion for a new trial should have been sustained because the record does not show that the assessment of damages was recorded by the clerk, as provided by §4834 Burns 1901, §3703 R. S. 1881.
1.
Judgment affirmed.