Joliff v. Muncie Electric Light Co. , 181 Ind. 650 ( 1914 )

Morris, C. J.

This was an action by appellee against appellants to condemn a right of way across appellants’ lands. To appellee’s complaint appellants filed thirty-one objections, to all of which, excepting Nos. 1, 4, 5, 6, 9, 10, 13, 16, 20, 21, 27 and 30, the court sustained a demurrer. On the issues formed by the remaining objections, there was a hearing resulting in a judgment for appellee, appointing appraisers, from which judgment this appeal is prosecuted. §933 Burns 1914, Acts 1905 p. 59. Errors are here assigned in sustaining the demurrer to the several objections above indicated, and in overruling appellants’ motion to set aside the submission of the cause.

The complaint alleges that appellee is a corporation, organized under the laws of this State, and engaged in manufacturing, distributing and selling electric energy, and, pursuant to the authority of its charter, is engaged in the business of supplying certain named cities and towns, and the inhabitants thereof, and the general public, with electricity for light, heat and power, and that .it intends to use the real estate described, for an electric transmission line between the named citi.es and towns; that its plant for manufacturing electricity is in Muneie; that its transmission lines to said cities have been partly completed, and all the right of way therefor has been acquired by appellee except that over appellants’ lands, and those of three other persons; that the right of way over appellants’ lands sought to be appropriated, is a strip 10 feet wide lying west of, and adjoining, the right of way of the Port Wayne, Cincinnati and Louisville Railroad, through the southwest quarter of southwest quarter of a designated section of land in Delaware County.

Appellee’s right to condemn the lands in question is asserted under the provisions of §8 of the act of March 9, 1907 (Acts 1907 p. 277, §5081 Burns 1914), and §10, of the same act, as amended in 1909 (Acts 1909 p. 276, §5083 Burns 1914). By said §8 it is provided that condemnation proceedings authorized by the act shall be had under the provisions of the eminent domain act of 1905. §929 et seq. Burns 1914, Acts 1905 p. 59.

1.

Appellants claim there was error in sustaining the demurrer to the second objection which avers that the complaint “does not state facts sufficient to authorize the court to appoint appraisers as * * * sought” and also to the third which avers that the complaint “does not set up sufficient facts to confer jurisdiction on the court, for the purposes and objects set out in plaintiff’s * * * complaint”. There was no error in the court’s ruling. Objections, in actions of this kind, must be specific, not general. Westport Stone Co. v. Thomas (1911), 175 Ind. 319, 329, 94 N. E. 406, 35 L. R. A. (N. S.) 646.

2.

Error is predicated on the action of the court in sustaining a demurrer to the eighth objection which avers that appellee, before the commencement of the action, failed to present to appellants any definite or tangible proposition on which an agreement could be reached as to the amount of damages. The statute requires the complaint to allege that the plaintiff has been unable to agree for the purchase of the land or interest therein sought. The burden was on appellee to prove a good faith effort to purchase, and an inability to agree, without any objection. Westport Stone Co. v. Thomas, supra, 329; Morrison v. Indianapolis, etc., R. Co. (1906), 166 Ind. 511, 76 N. E. 961, 77 N. E. 744, 9 Ann. Cas. 587.

3.

4.

5.

It is claimed the court erred in sustaining appellee’s demurrer to the fourteenth objection, which averred that there is no definite route described in the complaint, because the railroad company holds its right of way, hot by deed or condemnation, but by prescription or adverse possession ; that the boundary line of the right of way has never been fixed by agreement between the railroad company, and the adjoining landowners. It is not alleged that appellants’ land is unimproved, or uninclosed, nor is there any allegation with reference to fences. In Mull v. Indianapolis, etc., Traction Co. (1907), 169 Ind. 214, 221, 81 N. E. 657, this court held, in a complaint to condemn land for an electric transmission line, that a description of the land sought, as lying “immediately north of, and adjoining the right of way” of a designated railway company, was sufficient on objection raised for indefiniteness. However, in the Mull case, it was not alleged, as here, that the railway company held its easement by prescription. A description of land, from which a surveyor or skilled person, may locate the tract, is sufficient. Cleft v. Brown (1884), 95 Ind. 53; Darrow v. Chicago, etc., R. Co. (1907), 169 Ind. 99, 81 N. E. 1081, and cases cited. Where land is described as bounded by a river, street or public highway, the description is sufficient. Cleveland v. Obenchain (1886), 107 Ind. 591, 8 N. E. 624; Adams v. Harrington (1887), 114 Ind. 66, 14 N. E. 603. In McDonald v. Payne (1888), 114 Ind. 359, a proposed highway was described as running “along the north line of said Michigan Central Railroad.” Concerning this description, this court said: ‘‘ Ordinarily, the lines of a right of way of a railroad are as fixed and certain as are those of a public highway.” In 1885 a statute was enacted requiring railroads to build fences on the lines dividing their rights of way from the lands of abutting owners; the act further authorized the abutting owners to construct such fences, at the railroads’ expense, where the latter failed to comply with the provisions of the statute. Uninclosed and unimproved lands were excepted from the operation of the law. Acts 1885 p. 224, §§5447, 5448 Burns 1914; Chicago, etc., R. Co. v. Wood (1903), 30 Ind. App. 650, 66 N. E. 923. The complaint here shows that appellants’ land is not within an incorporated town or city, and the objection fails to aver that the land is uninclosed or unimproved. If inclosed and improved, it must be presumed that the railroad company obeyed the law of 1885 and constructed a fence on the boundary line between its right of way and appellants’ land, and has since maintained the fence. It was the duty of the one erecting the fence to place it on the boundary line. Chicago, etc., R. Co. v. Wood, supra. This duty existed regardless of whether the company’s easement was held by deed, condemnation judgment, or prescription. A fence, erected under the mandatory provisions of the law, constitutes a monument sufficient to enable a surveyor to locate the boundary line. The objection was insufficient to repel appellee’s demurrer.

6.

The complaint alleges that it is appellee’s intention to construct on the right of way sought, a telephone line for the exclusive use of appellee, to aid it in the operation of the proposed electric transmission line. In the seventeenth objection, appellants aver that at no time did appellee attempt to negotiate or agree with appellants for a right of way for the proposed telephone line. For the reasons stated in relation to the eighth objection, there was no error in sustaining a demurrer to the seventeenth. It is contended, the court erred in sustaining a demurrer to the nineteenth objection, which avers that appellee is not a good faith corporation — that it is a subsidiary one acting in combination with other similar ones in pursuit of an unlawful monopolistic conspiracy in restraint of trade, to control the production of electric energy and increase the price thereof to the general public by preventing competition ; that appellee, in combination with other like companies, has entered into a conspiracy to destroy competition in generating electricity in certain named cities and towns of Indiana. The objection is a collateral attack on the legality of appellee’s corporate existence. Such attack is not permissible in an eminent domain proceeding. The validity of appellee’s organization, or the exercise of its charter powers, legal on the face thereof, eannot be questioned collaterally. The proper remedy is by information in the nature of quo warranto. State, ex rel. v. Portland, etc., Oil Co. (1899), 153 Ind. 483, 53 N. E. 1089, 53 L. R. A. 413, 74 Am. St. 314; Aurora, etc., R. Co. v. City of Lawrenceburg (1877) , 56 Ind. 80, 87; Williams v. Citizens R. Co. (1891), 130 Ind. 71, 75, 29 N. E. 408,15 L. R. A. 64, 30 Am. St. 201, and authorities cited; Richland School Tp. v. Overmeyer (1905), 164 Ind. 382, 387, 73 N. E. 811, and cases cited; Modlin v. State (1911), 175 Ind. 511, 94 N. E. 826, Ann. Cas. 1913 C 669. The demurrer was properly sustained.

7.

The twenty-third objection challenges the lawful power of appellee to operate a telephone line, for its own use, on the right of way sought. We are of the opinion that §8 of the act of 1907, supra, authorizes the use of such line as incidental to the proper discharge of appellee’s public duties in the operation of a high voltage electric transmission line. Western Union Tel. Co. v. Rich (1878) , 19 Kan. 517, 27 Am. Rep. 159; 1 .Lewis, Eminent Domain (2d ed.) §141a. There was no error in .sustaining the demurrer to the objection.

8.

The court sustained appellee’s demurrer to objections Nos. 24 and 25, which sought to challenge the right of appellee to go on appellants’ premises, outside of, and adjoining the strip appropriated, to cut trees, overhanging branches, etc. No such right is sought by the amended complaint, on which the hearing was had, nor is such right conferred by the judgment appealed from. The original complaint did seek the right to cut trees, etc., on “the premises of the defendants adjoining the same (strip appropriated) on either side,” but this clause was omitted from the amended complaint. Evidently the objections were prepared before the complaint was amended, and counsel for appellants overlooked the fact that the objectionable clause had been omitted from the amended complaint.

9.

The twenty-sixth objection alleges that appellee is not authorized, by its charter, to appropriate appellants’ land for the use sought. It appears that appellee’s contention is based on §10, of the act of 1907, supra, which, before its amendment in 1909, limited the application of the provisions of the act to electric companies organized to produce electricity by water power. By the amendment of 1909 however (Acts 1909 p. 276, §5083 Burns 1914) the privileges and powers enumerated in the act were extended to all companies “organized to produce electricity.” Illyes v. White River Light, etc., Co. (1911), 175 Ind. 118, 93 N. E. 670. By virtue of the amendment of §10, appellee is authorized to appropriate the land for the use it seeks, and the demurrer to the objection was properly sustained.

10.

In appellants’ thirty-one objections, covering twenty-one pages of their brief, appears much unnecessary repetition. Objections Nos. 20, 21 and 30 are construed by appellants as general demurrers to the complaint. The court overruled a demurrer to the three objections. After hearing the evidence submitted, appellants moved to set aside the submission on the ground that the court, by overruling appellee’s demurrers to said objections thereby in effect held the complaint insufficient, and, as no amended complaint was subsequently filed, it is contended that appellee had no complaint on file. A general demurrer to a general demurrer is as frivolous as a motion to strike out a motion, and overruling such demurrer did not involve a consideration of the complaint’s averments. Blemel v. Shattuck (1893), 133 Ind. 498, 33 N. E. 277. There was no error in overruling appellants’ motion to set aside the submission. Some other questions are presented, and have been considered, but we do not deem them of sufficient importance to warrant their discussion. There is no error in the record. Judgment affirmed.

Note. — Reported in 105 N. E. 234. As to proceedings to condemn property under the right of eminent domain, see 22 Am. St. 49. As to who may exercise power of eminent domain, see 40 L. Ed. U. S. 138. See, also, under (1) 16 Cyc. 859; (2) 15 Cyc. 853, 859; (3) 15 Cyc. 855; (6) 10 Cyc. 256; (7) 15 Cyc. 1024; (8) 31 Cyc. 358; (9) 15 Cyc. 600; (10) 31 Cyc. 273.