Carrell v. Muncie, Hartford & Ft. Wayne Railway Co.

Black, J. The appellee instituted proceedings for the appropriation of a strip forty feet in width through agricultural lands of the appellant, for the construction of the appellee’s “interurban street railroad,” pursuant to the statute of March 11, 1901 (Acts 1901, p. 461, §5468a et seq. Burns 1901). Among the instructions asked by the appellant which the court below refused to give to the jury was the following: .“The court instructs the jury that in estimating the damages no deduction shall be made for any benefits that may arise or accrue to the landowner by the location, construction and operation of the road.” Since the trial of this cause, the matter involved in this instruction has been examined by this court and has been decided contrary to the ruling here questioned. See Indianapolis, etc., Traction Co. v. Dunn (1906), 37 Ind. App. 248; Indianapolis, etc., Traction Co. v. Ramer (1906), 37 Ind. App. 264. We do not find any reason for departing from the conclusion reached on this subject in those cases. The principles and rules for the assessment of damages in such cases are well ascertained and explained in the decisions; and other questions suggested by counsel may, on another trial, present no difficulty, being approached with the understanding that it is the intention of the legislature that in such cases damages to the landowner should be assessed as in case of the appropriation of land for the use of- a commercial railroad company. Judgment reversed, and cause remanded for a new trial.