Eckart v. Fort Wayne & Northern Indiana Traction Co.

Morris, C. J. This was an action by appellee, a street railway company, engaged in operating a system of street and interurban railroads, against appellants, to appropriate, for terminal purposes, etc., a tract of appellant Anna Eckart’s land, in the city of Fort Wayne. Errors are here assigned by appellant Anna Eekart only, and, for convenience, she will be designated as “appellant” in this opinion. To appellee’s complaint filed under the provisions of the eminent domain act of 1905 (Acts 1905 p. 59, §929, et seq. Burns 1908), appellant filed seventeen written objections. The trial court sustained a demurrer to objections Nos. 14 and 15. Prior to the trial, the court, deeming objections Nos. 1, 2, 4, 5, 6, 7, 8, 16 and 17, as intending to present only issues of law, and to be insufficient for such [355] purpose, overruled each of them. There was a trial on objections Nos. 3, 9, 10, 11, 12 and 13, with special findings of fact and conclusions of law. The court overruled said objections and adjudged that appellee was entitled to appropriate the land, and appointed appraisers to assess appellant’s damages. From such interlocutory judgment, this appeal is prosecuted. §933 Burns 1908, Acts 1905 p. 59, §5. 1. Appellant claims the complaint does not sufficiently aver a necessity for the taking. Its only averment in this respect is as follows: “which lands plaintiff deems to be and are necessary for its use and purposes aforesaid.” It is contended by appellant that such averment is a mere conclusion of the pleader. If it be conceded that the complaint should aver a necessity for the taking, the averment here must be held sufficient. Domestic Block Coal Co. v. DeArmey (1913), 179 Ind. 592, 100 N. E. 675, 102 N. E. 99. 2. 3. By objections Nos. 11 and 12, appellant denied each averment of the complaint except that she is the owner of the real estate in controversy. Much evidence was given by appellee to prove the necessity of the appropriation of appellant’s land, to wit, lot No. 6, in block 12, of Ewing’s Addition to Fort Wayne. The court, in finding No. 3, found “that said lot is necessary for the plaintiff’s use for stations, depots and offices in the maintenance and operation of its lines and system of street and interurban railroads.” Appellant excepted to each conclusion of law, and contends that finding No. 3, must be disregarded because it finds no fact, but states a mere conclusion; that with such finding eliminated, the court’s conclusions of law are unsupported. The case was tried on the theory that the necessity of the taking of the lot was one of the ultimate facts in issue. We are of the opinion that appellant’s criticism of the finding is unwarranted. Under our statute (§577 Burns 1908, §551 R. S. 1881), the office of a special finding is the statement of the ultimate facts [356] in issue. Perkins v. Say ward (1890), 124 Ind. 445, 24 N. E. 1033; Taylor v. Canady (1900), 155 Ind. 671, 675, 57 N. E. 524, 59 N. E. 20. Evidentiary facts, in such findings, must be disregarded. Bartholomew v. Pierson (1887), 112 Ind. 430, 14 N. E. 249. 4. [357] 5. [356] Appellant contends that as the evidence shows that three other interurban railway companies, and an express company have been using the old terminal facilities of appellee and will continue to do so when the new terminal shall be located on the ground of which appellant ’s land forms a part, that the decision is contrary to the evidence; that appellee has no power to condemn land for another’s use, or for the purpose of enlarging terminals to be in part rented to others. In 1899, the legislature adopted an act (Acts 1899 p. 230, §5632 Burns 1908), which required street railroad companies in cities with a population between 35,000 and 49,000, according to the preceding United States census, to permit any interurban railroad the use of its tracks in the city, whenever the.board of public works and common council of such city shall grant certain rights of way. In 1902, the Port Wayne Traction Company was operating a street railroad system in Port Wayne, then a city of 45,115, as shown by the census of 1900. Pursuant to the provisions of §5632 Burns 1908, supra, the common council of Port Wayne, in August, 1902, adopted an ordinance which required the Port Wayne Traction Company, and its successors to permit cars of any interurban company to be transported over its tracks, in the city. Appellee has acquired all the property and franchises of the Port Wayne Traction Company. One public service corporation may not condemn property for the use of another in the absence of express legislative authority. Mull v. Indianapolis, etc., Traction Co. (1907), 169 Ind. 214, 218, 81 N. E. 657, and cases cited. Here, however, whatever incidental benefits that may accrue to the other interurban railroads result from express legislative sanction under the provisions of [357] said act of 1899. It is lawful for an express company to carry property over an interurban railway, and it is proper for tbe latter to furnish terminal facilities for the convenient handling of the goods carried by the express company. We hold that said uses by the express company and the interurban companies do not affect appellee’s right to appropriate the real estate in controversy. 6. The court admitted in evidence, over appellant’s objection for insufficient authentication, what purported to be a copy of the minutes of a meeting of appellee’s board of directors, held in New York City, declaring a necessity to exist for the taking of appellant’s land and authorizing 'its condemnation. To this copy was attached the affidavit of appellee’s secretary, sworn to before a notary public of Philadelphia, Pa., certifying to the correctness of the minutes. There was no certificate by any clerk that the notary was authorized by the laws of his state to administer oaths. See §§498, 489 Burns 1908, §§476, 467 R. S. 1881. Appellant cites Jackson v. State (1903), 161 Ind. 36, 67 N. E. 690, and other cases, in support of her contention. Conceding that the admission of the document in evidence was erroneous, we fully concur in the view of appellee’s counsel that the error was a harmless one. What, if any, resolution was adopted by appellee’s board of directors, was not material. The filing of the complaint itself implied that appellee deemed the appropriation necessary. Pittsburgh, etc., R. Co. v. Town of Wolcott (1904), 162 Ind. 399, 402, 69 N. E. 451; 2 Dillon, Mun. Corp. (4th ed.) §601. 7. [358] 8. 9. 8. [359] 10. [357] Appellee, in its examination of S. W. Greenland, asked the following question: “Your connection with the business is one of the officers and directors of that company. I will ask you whether or not in your judgment it was necessary for the acquirement of this territory and lot up there for the purpose of an interurban station?” Appellant objected because the question was one for the sole determination of the court. The objection was over [358] ruled, and the witness was permitted to state that in his opinion “it is needed.” This was error. The question called for an opinion on the exact point in issue — a thing not permissible. Hughes v. Beggs (1888), 114 Ind. 427, 16 N. E. 817; Hamrick v. State, ex rel. (1893), 134 Ind. 324, 34 N. E. 3, and cases cited. Two other questions, of similar import, were answered over like objections. Do such errors require a reversal of the judgment! Section 700 Burns 1908, §658 R. S. 1881, provides that no judgment shall be reversed where it shall appear that the merits have been fairly tried and determined. Though the ease was tried below on the theory that appellee was not authorized to condemn land unless reasonably necessary for its use, and even then not in an unnecessary quantity, appellee here contends that the determination of the question of reasonable necessity has been left by the legislature to appellee. In support of this claim, its counsel cites §5679 Burns 1908, Acts 1903 p. 92, which provides that the street or interurban railroad may appropriate such land ‘ ‘ as may be deemed necessary for its railroad, including necessary side tracks”, etc. The above is found in §3 of the amendatory act of 1903 (Acts 1903 p. 92). By clause 3, §1, of the same act (Acts 1903 p. 92, §5675 Burns 1908) the company is authorized to acquire by condemnation, grant, etc., “all such lands * * * as may be necessary for the construction * * * and operation of its railroads”, etc. (Italics ours.) Legislative grants of the right to exercise the power of eminent domain are strictly construed. Kinney v. Citizens Water, etc., Co. (1909), 173 Ind. 252, 90 N. E. 129, 26 L. R. A. (N. S.) 195. Considering the statute as a whole, we are of the opinion that it was the intention of the legislature to grant the right to exercise the power of appropriation of such realty only as may reasonably be necessary for the public use, and that the question of the necessity of taking particular property for a particular purpose is a [359] judicial one, upon which the owner has a right to he heard. Chicago, etc., R. Co. v. Baugh (1911), 175 Ind. 419, 427, 94 N. E. 571, and authorities cited. Appellee also cites Richland School Tp. v. Overmeyer (1905), 164 Ind. 382, 73 N. E. 811, where this court held that, under the particular statute which authorizes an appropriation of land for school purposes, “Whenever, in the opinion * * * of the township trustee * * * it shall he considered necessary”, the landowner cannot raise the question of the necessity o± the appropriation or of the quantity appropriated, because the statute confers on the school authorities the exclusive right to determine such questions. This court, in its opinion, on page 388 “sharply limited” its decision to the question there involved, and we are' of the opinion that such decision cannot be deemed as applicable to the statute here under consideration. The question of the necessity of the appropriation under this statute is not limited by a consideration of absolute or indispensable needs of the railroad. Necessary land here must be held such as is reasonably proper, suitable and useful for the purpose sought. Chicago, etc., R. Co. v. Baugh, supra 425. Some discretion must be allowed the railroad in determining the needs of itself and the public. In limiting the power of appropriation to that which is necessary, it is manifest that it was the legislative purpose to prevent the abuse of the power by making appropriations for speculative, monopolistic, or other purposes, foreign to the legitimate objects contemplated by the corporation’s charter. 2 Lewis, Eminent Domain (2d ed.) §393. We are further of the opinion that courts, in determining the question of necessity, may, and in proper cases should, consider not only the present needs of the company but also those likely to arise in the future. The public, no less than the stockholders of the corporation, is vitally interested in the question of adequate' terminal facilities for a public carrier. [360] 11. [359] The evidence here shows that appellee already owns a [360] tract of ground 150 feet wide, north and south, by 260 feet long, east and west. Appellant’s land adjoins this tract, and, if acquired, the entire tract will be 150 feet wide and 310 feet long. It is intended to lay ten tracks on the tract, running north and south. These tracks will be 18 or 20 feet apart from, center to center. A large amount of space will be required around the buildings for sidewalks and driveways for vehicles carrying passengers, express matter and baggage. It is intended to locate a permanent depot, general office building, and other structures necessary for handling baggage and express matter, on appellant’s land. 180 interurban cars, including 134 designed for passenger traffic, enter the terminal each day. These cars are from 60 to 62 feet long. Each track will accommodate two cars. During the year preceding the trial 1,174,848 interurban passengers were handled. Appellee, with two interurban lines, and three other interurban companies, with lines entering the city, use the terminal. If interurban cars are left standing on the streets, the latter will be blocked against traffic by the city cars and other vehicles. A consideration of all the evidence relating to the necessity of the appropriation, aside from, the opinion evidence erroneously admitted, discloses no fact or circumstance warranting an inference of a speculative or monopolistic purpose on the part of appellee. Nor is any fact shown which would warrant the inference that the land sought will be used for any purpose other than a legitimate one, and hence we conclude that the record affirmatively shows the error harmless in admitting the opinion evidence in regard to necessity. Other questions are presented, some of which are necessarily determined by the rulings already made. As to the remaining ones, it is sufficient to say that no harmful error is disclosed. Judgment affirmed. Note. — Reported in 104 N. E. 762. As to when the question of public use may be considered, see 88 Am. St. 926. As to the exer [361] eise of the power of eminent domain by one corporation for a public purpose to be subserved by another, see 21 L. R. A. (N. S.) 448. As to the judicial power over the right of eminent domain, see 22 L. R. A. (N. S.) 1.