Dager v. Indiana Suburban Sewers, Inc.

258 N.E.2d 406, 254 Ind. 137, 1970 Ind. LEXIS 531

• Court: Indiana Supreme Court
• Decided: May 22, 1970
• Docket: No. 369 S 59
• Status: Published

Opinions

Givan, J.

The appellee has filed a motion to dismiss in this case. It is the opinion of this Court that the motion is well take] \, and it is, therefore, granted.

This is a condemnation action brought by appellee to condemn an easement across appellants’ property for a public sewer. Appellants filed a response to appellee’s complaint stating they had no objection to the installation of the sewer, but that they were not in agreement with the amount of compensation offered. Thus, the sole issue for trial was the measure of damages resulting from the taking.

The trial court appointed appraisers and at the same time the appellee filed a motion for an order to compel the appellants to temporarily remove wrecked automobiles that were stored on the strip of ground which was the subject of the condemnation. The trial court ordered the automobiles temporarily removed on or before February 24, 1969, which was the date set for the appraisers’ report. The appellants had asked for and the court had given an instruction to the appraisers to allow as part of the damages the reasonable cost of temporarily removing the automobiles and in replacing them following the construction.

The court appraisers returned an award of damages in the amount of $3,000, which we must presume in the light of the court’s instruction included the cost of removing the automobiles.

The appellee paid the amount of the award to the Clerk of the Court, and the appellants withdrew the amount of the award and did not file any exceptions to the award within the 10 days provided by statute.

Appellants claim that the trial court erred in requiring them to temporarily remove their personal property from the land without notice and without hearing, and alleging that the trial court erred in overruling appellants’ motion to set aside and expunge this order. Although the trial court may have been somewhat premature in ordering the removal of the automobiles before the appellee had a right of possession by reason of paying the amount of the court appraisers’ award to the Clerk of the Court, any right which the appellants may have had to retain possession of the ground until payment of the award has been waived by reason of their acceptance of the benefits of the judgment by failing to file exceptions within the 10 days provided by statute. State v. Kraszyk (1960), 240 Ind. 524, 167 N. E. 2d 339.

For this reason the appellee’s motion to dismiss is sustained.

Hunter, C.J., Arterburn and DeBruler, JJ., concur; Jackson, J., dissents without opinion.

Note. — Reported in 258 N. E. 2d 406.