State Ex Rel McNutt v. Orcutt , 211 Ind. 523 ( 1936 )

ON PETITION FOR REHEARING In their briefs on petition for rehearing, appellees assert that the opinion in the instant case is in irreconcilable conflict with the opinion in the case of State v. Patten etal. (1936), 209 Ind. 482, 199 N.E. 577, handed down the same day. But in this they are clearly in error. The Patten Case dealt with the right of the state to change the grade and elevation of a highway upon land previously condemned. It was contended that, by elevating the grade, approaches to the road were destroyed and the landowners were put to additional expense in building driveways and bridges. It was held that the expense and inconvenience incident to reaching the highway, no matter what the grade, must be deemed to have been taken into consideration in fixing the damages in the original condemnation proceeding.

The case of Cleveland, C.C. St. L. Ry. Co. v. Hadley etal. (1913), 179 Ind. 429, 101 N.E. 473, 45 L.R.A. (N.S.) 796, is cited and relied upon in both opinions. In the Patten Case it was relied upon as authority for the proposition that, in the taking of a right of way by the state, damages must be assessed in the first instance, upon the basis that the state will have the right to construct its highway in any way, and upon any grade, that it pleases. The Hadley Case is a railroad case, and it was deemed authority in a case where the condemnation of a right of way was by the state. As pointed out in the original opinion in the instant case, it may be inferred from the language used in the opinion in the Hadley Case that: "Where a railroad condemns a right of way which divides the owner's land, the owner has the right to a crossing as a way of necessity, and that the cost and expense of constructing the crossing and maintaining it was a proper element to take into consideration in fixing the damage." As pointed out further in the original opinion, it was expressly held in Cleveland, C.C. St. L. Ry. Co. v. Smith (1912),177 Ind. 524, 97 N.E. 164, that the right to a way of necessity was reserved in the owner of lands where a portion of the land was condemned by a railroad. The instant case went no further than to apply the rule to condemnation proceedings by the state itself, in the same manner in which the last quoted case applied it to condemnation proceedings by a railroad. In the Patten Case the same analogy is drawn, and the rule concerning damages in the case of condemnation by a railroad is applied to condemnations by the state itself.

A careful examination of the opinions and authorities relied upon will disclose that there is no conflict, and that both are sustained by former decisions of this court in every respect, except upon the question as to whether or not the same rules of law apply to condemnation proceedings by the state itself that have been applied to condemnation by railroads or other quasi-public institutions. Both cases hold that the same rules apply, and therefore the decisions are consistent and support each other.

In State v. Hamer et al. (1936), post 570, 199 N.E. 589, the case of Schnull et al. v. Indianapolis Union Railway Co. (1921), 190 Ind. 572, 131 N.E. 51, is quoted to the effect that the landowner is entitled to interest upon the full amount of the award of damages from the time the condemnor took possession of the property. The question of whether the amount of interest was to be determined and awarded by the court or by the jury was not presented either in the Schnull Case or the Hamer Case. Upon that question we abide by the rule laid down in the instant case, that the interest must be considered part of the compensation, and that it should be taken into consideration by the jury in fixing the compensation.

It is suggested that the opinion does not touch upon a matter which will be of importance upon another trial. We quote from the brief: "The record discloses that on that part of the 8, 9. 120 acres of land which was taken, the roadway referred to was at times obstructed by bars or other barriers. This is highly important for the reason that if another trial is to be had, the extent of the damage to the remainder of the land will be determined in no small degree upon whether or not appellee will have an open and unobstructed roadway from the remainder of the 120 acres to the highway or whether it will be subject to obstruction by gates or bars. While the court places its decision on the theory of a way of necessity, no notice is taken of the rule which allows a servient estate to obstruct a way of necessity with gates or bars unless otherwise expressed in the transaction out of which the right arose, and that such right is inconsistent with a taking by eminent domain." No authority is cited as supporting the rule referred to in the last sentence quoted.

In John Hancock Mutual Life Insurance Co. v. Patterson (1885), 103 Ind. 582, 586, 2 N.E. 188, 191, 53 Am. Rep. 550, 554, cited in the original opinion, it is said that the way will continue "in substantially the same condition in which it appeared and was used when the grant was made." The record shows that the 120 acres of land was used as a berry and fruit farm; that the products of the farm were sold to customers who came upon the place to purchase them; in other words, it was a market as well as a farm; that, to accommodate these customers, the way was left open during the fruit and berry season, but that at times out of the fruit and berry season it was obstructed by bars. No reason is seen why the owner of the remainder of the 120 acres should not place barriers upon the dividing line, since, while the owner of the dominant estate has the right to cross the land which is taken, the owner of the servient estate has no right to use the way across the land into the dominant estate. The character of the way is to be determined from the facts in each particular case. A mere temporary or provisional arrangement or use will not control the character of the way, but if, from the character of the use which the owner made of the berry and fruit farm, it is apparent that it is necessary to its fair enjoyment, for the purposes for which it was used, that the way to it shall be open, the character of the way will be established by the necessity for such use, and the right to continue it as an open way will continue. John Hancock Mutual Life InsuranceCo. v. Patterson, supra.

It will be noted that in the trial court and here appellees have insisted that the state had got something by the condemnation proceeding that it did not claim, and did not want, and insisted that it did not have, in order to claim damages, upon the theory that the value of the entire 120-acre tract had been destroyed, and was useless for want of a means of ingress and egress. If the determination of the jury as to the value of the land was correct, and no more nor less than compensation, and it must be assumed to be, appellees are not harmed or injured in any way by the reversal of this judgment, since it is now made clear that they have the use of their farm and the use of a means of egress and ingress. On the contrary, appellees may benefit by the reversal, since it is a matter of common knowledge that the value of farm lands generally and their use has increased in the interval. The effect of the opinion is to protect the rights of land owners against the state and others who exercise the right of eminent domain. The vigor with which appellees contend for the affirmance of the judgment would seem to indicate that they consider the money judgment of more value than the use of the land.

Rehearing denied.