100 Ind. 550 | Ind. | 1885
On the 23d day of October, 1882, the appellees were the owners of a certain tract or lot of land, containing nearly eight acres, lying within the corporate limits of the city of Logansport, in Cass county. About the same date, the appellant deposited in the clerk’s office of the court below a written instrument of appropriation, wherein it proposed to appropriate all the right, title and interest of the appellees in and to a strip of such land, fifty feet in width and extending through the land on a slight curve, the same width, four hundred and seventy-six and one-half feet in length, for the purpose of constructing, maintaining and operating thereon the main track of an extension of appellant’s railroad, etc. Appraisers were duly appointed to appraise the damages which the appellees would sustain by reason of such appropriation of their land, and such appraisers made due return to the clerk of the court below of their appraisement of appellees’ damages, setting forth _ therein that the value of the land taken by the appellant was $200, and that the residue of the land would be damaged in the further sum of $200. Written exceptions to the appraisers’ award of damages were filed both by the appellees and the appellant, and the issues of fact arising thereon were submitted to a jury for trial. A general verdict was returned for the appellees, assessing their damages, by reason of appellant’s appropriation of their land, at the sum of $1,250; and with such verdict the jury also returned into court their special findings on particular questions of fact, submitted to them by the parties under the direction of the court. Over the appellant’s motion for a new trial, the court rendered judgment against it, in appellees’ favor, for the damages assessed and costs. *
In this court, error is assigned by the appellant, which calls in question the decision of the trial court in overruling
In their first brief of this cause, the appellant’s counsel next complain in argument of the following instruction to the jury, given at appellees’ request: “The question submitted to you is one of damages, arising from the appropriation of the lands of certain persons named in the article of appropriation. In determining this question, it is proper for you to consider the value of the land actually taken, at the date of the appropriation, the effect upon and injury, if any, caused to the remainder of the land by the appropriation, the cost, if any, the construction will occasion to the owners in rendering it necessary for them to fill-up lots or remaining
In one of their exceptions to the award of damages by the appraisers, the appellees said that such award was inadequate and unjust, and not commensurate with the damages they would sustain on account of appellant’s appropriation, for the reason that when the road was constructed on the line appropriated to the established grade, there would be a fill across their lots and land the entire length of the land appropriated, of from two to five feet, which fill would render the adjoining land and lots of much less value, because it would be necessary to fill them two to five feet before they could be used for any purpose, or be marketable at any price; that to make such fill would put the appellees to an additional cost of $1,500, and in that amount would damage their property, etc.
This exception tendered one of the issues which were tried by the jury, and evidence was offered and admitted, without objection by the appellant so far as the record shows, tending to sustain the exception. Indeed, it seems to us from the record, that the cause was tried below upon the theory that the cost of filling appellees’ land and lots, rendered necessary by the construction of appellant’s railroad, was a proper matter to be considered by the jury in estimating the amount of appellees’ damages, caused by the appropriation. Without deciding whether or not this theory was correct, we are of opinion that the instruction complained of was within the issues and applicable to the evidence, in this cause, and that it affords no sufficient ground, therefore, for reversing the judgment below.
This ruling of the court was assigned as cause for a new trial by appellant, and is complained of here as erroneous. 'Counsel say: “Appellant submits that it was not competent for the witness to state what it would cost to fill the three ■acres. That was one of the questions, if allowable in the case at all, which the jury were to decide. Had the witness stated facts upon which his conclusion rested, it would have been the exclusive province of the jury to detérmine the cost of the fill.” In support of their argument, appellant’s counsel cite the cases of City of Logansport v. McMillen, 49 Ind. 493, and Ohio, etc., R. W. Co. v. Nickless, 71 Ind. 271, and they add: “ Without further discussion of this question, appellant cites the recent case of Yost v. Conroy, 92 Ind. 464 (47 Am. R. 156), in which case the precise question is presented and decided.” We are of opinion, however, that the question propounded and the answer of the witness thereto, in the case in hand, are not in conflict with the rules of evidence declared in either of the cases cited and relied upon by appellant’s counsel. Ón the contrary, we think that the evidence complained
"We can not disturb the general verdict of the jury upon the ground of excessive damages. In answer to a particular question of fact, propounded by appellant and submitted by the court, the jury found upon evidence tending to sustain such finding, that the value of the entire tract of land owned by appellees, at the time of and immediately before appellant’s appropriation, was $6,500, and that the value of the balance of the land, after the appropriation was made, was $5,-250. The difference between these two sums is $1,250, which, as we have seen, is the amount of the general verdict.
The last error of which complaint is made here by appellant’s counsel, is the overruling of the motion to modify and correct the judgment below, and to strike therefrom the fol
■ "We have now considered and passed upon all the questions discussed by appellant’s counsel, in their briefs of this cause, and our conclusion is that no error is saved in or shown by the record, which authorizes or requires the reversal of the judgment.
The judgment is affirmed with costs.