[617]*617Achor, J.
The respective actions in the above entitled causes are related to the same subject-matter and involve many of the same issues and are therefore treated concurrently. Both actions challenge the validity of a proceeding whereby appellees by declaratory resolution under §48-2001, et seq., Burns’ 1950 Repl. [Acts 1905, ch. 129, p. 219] determined the necessity, and purported to condemn and award damages for certain lands of appellants, for a sewage disposal plant.
Cause numbered 29645 is an action to enjoin the ap-pellees from taking any further steps under §48-2001, et seq., supra, pursuant to the declaratory resolution. The trial court denied the injunction.
In both actions the errors assigned and argued by appellants upon appeal, are as follows: (1) That the proceedings, by which the declaratory resolution was adopted and the property condemned, was invalid for the reason that the statute [§48-2001, et seq., supra], which authorized the proceedings, provides for a notice by publication only to the owners of land prior to the appropriation thereof by the municipality;1 (2) that no steps had been taken in the proceedings to negotiate with appellants regarding the amount of their damages, and that if appellees were permitted [618]*618to condemn appellants’ property under §48-2001, et seq., supra, they would be denied this and other- rights which are expressly granted under the general Eminent Domain Act [§3-1701, et seq., Burns’ 1946 Repl.] . [Acts 1905, ch. 48, p. 59]; (3) that the declaratory-.resolution and, therefore, the appropriation thereunder, is invalid for the reason that the description of the easement, sought to be appropriated as a right-of-way between the highway and other land condemned, is not described in said resolution with such certainty as to give the proceeding validity.2
In addition to the above issues raised in both actions, in the latter case appellants also assign as. error, (4) that the damages assessed are inadequate, for the reason that the court failed to take into consideration the value of appellants’ property as a business.
One: The question herein is whether, the action under §48-2001, et seq., supra, violates the constitutional right of due process, guaranteed to the appellants. Specifically appellants assert that condemnation under said Act violates Art. 1 §§12 and 21 of .the Constitution of Indiana and the Fourteenth Amendment to the Constitution of the United States, in that such action would deprive the appellants of their property without due process (or due course) of law, for the reason that the act does not provide for personal service [619]*619of notice upon persons whose property is condemned, prior to the appropriation thereof. In support of their position,, appellants cite the fact that the .said act makes no express- provision for the filing of objections to the taking after notice by personal service as provided- in Section 48-2005 of the Statutes. They then cite the cases of The Cemetery Co. v. Warren Sch. Twp. et al. (1957), 236 Ind. 171, 178, 139 N. E. 2d 538, and Mullane v. Central Hanover B. & T. Co. (1950), 339 U. S. 306, 314, 94 L. Ed. 865, as sustaining their position that, in the absence of service of notice and opportunity to object to the taking, the act is unconstitutional.
In the Cemetery case, supra, this court correctly stated the law as follows: . At some place in the proceedings, and by some method the landowner is entitled to contest the legality, of the condémnation proceedings, and question the authority under which the attempt is being made to take his property . . .
In the Mullane case, supra, the United States Supreme Court stated the accepted rule regarding due process as follows: “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances to apprise interested parties of the pendency of the action and to afford them an opportunity to present their objections. . . .” This court has heretofore been called, up on to consider . substantially these same principles as applied to the condemnation statute here in question. In the case of Falender v. Atkins (1917), 186 Ind. 455, 459-461, 114 N. E. 965, this court stated the law as follows:
“ ‘Due process of law’ within the meaning of the fourteenth amendment, supra, is not - intended "
[620]*620to control the power of the State to determine by what process legal rights may be asserted, provided such procedure will afford reasonable notice and a fair opportunity to be heard before final determination. Iowa Central R. Co. v. Iowa (1895), 160 U. S. 389, 16 Sup. Ct. 344, 40 L. Ed. 256. . . .
“. . . The sections of the act to which we have referred provide for notice to all persons interested or who may be injuriously affected, and for a day when they may be heard concerning each step to be taken by the board, beginning with notice of the adoption of the resolution, down to the final action on the assessments or awards, and for an appeal to the circuit or superior court of the county by any party who may feel aggrieved by the board’s action. If, as appellant contends, this is an action for damages for property taken, or an invasion of his private right, then the act in question clearly gave him a remedy, and an opportunity to be heard before a tribunal vested with power or jurisdiction to determine his rights in the premises, and notice which the legislature has deemed sufficient. Under these circumstances we cannot say that the proceedings were not well within the principle required to constitute due process of law. Bowlin v. Cochran (1903), 161 Ind. 486, 69 N. E. 153; Strange v. Board (1909), 173 Ind. 640, 91 N. E. 242; Hudson Tp. v. Smith, supra (182 Ind. 260, 106 N. E. 359).”
In the more recent case of Slentz et al. v. City of Fort Wayne et al. (1954), 233 Ind. 226, 229, 118 N. E. 2d 484, this court also considered the constitutionality of the act now in question. In the latter case the issue of constitutionality was first presented on appeal from the board of public works to the Superior Court of Allen County. It was there asserted among other things that the act was unconstitutional for the reason “. . . that the provision of the statute making the action of the board in confirming, modifying or rescinding a resolution after hearing, as provided in the act, final [621]*621and conclusive on all persons is in violation of Article I of Section 12 of the Constitution of Indiana.”
In deciding the case this court enunciated the following principles of law: (1) It is not essential to due process that an appeal from a decision of an administrative board be provided at every step of the proceedings for condemnation, but (2) the legislature cannot deprive courts of their inherent power to review such actions when they are infested with fraud, capriciousness or illegality.
Free access — add to your briefcase to read the full text and ask questions with AI
[617]*617Achor, J.
The respective actions in the above entitled causes are related to the same subject-matter and involve many of the same issues and are therefore treated concurrently. Both actions challenge the validity of a proceeding whereby appellees by declaratory resolution under §48-2001, et seq., Burns’ 1950 Repl. [Acts 1905, ch. 129, p. 219] determined the necessity, and purported to condemn and award damages for certain lands of appellants, for a sewage disposal plant.
Cause numbered 29645 is an action to enjoin the ap-pellees from taking any further steps under §48-2001, et seq., supra, pursuant to the declaratory resolution. The trial court denied the injunction.
In both actions the errors assigned and argued by appellants upon appeal, are as follows: (1) That the proceedings, by which the declaratory resolution was adopted and the property condemned, was invalid for the reason that the statute [§48-2001, et seq., supra], which authorized the proceedings, provides for a notice by publication only to the owners of land prior to the appropriation thereof by the municipality;1 (2) that no steps had been taken in the proceedings to negotiate with appellants regarding the amount of their damages, and that if appellees were permitted [618]*618to condemn appellants’ property under §48-2001, et seq., supra, they would be denied this and other- rights which are expressly granted under the general Eminent Domain Act [§3-1701, et seq., Burns’ 1946 Repl.] . [Acts 1905, ch. 48, p. 59]; (3) that the declaratory-.resolution and, therefore, the appropriation thereunder, is invalid for the reason that the description of the easement, sought to be appropriated as a right-of-way between the highway and other land condemned, is not described in said resolution with such certainty as to give the proceeding validity.2
In addition to the above issues raised in both actions, in the latter case appellants also assign as. error, (4) that the damages assessed are inadequate, for the reason that the court failed to take into consideration the value of appellants’ property as a business.
One: The question herein is whether, the action under §48-2001, et seq., supra, violates the constitutional right of due process, guaranteed to the appellants. Specifically appellants assert that condemnation under said Act violates Art. 1 §§12 and 21 of .the Constitution of Indiana and the Fourteenth Amendment to the Constitution of the United States, in that such action would deprive the appellants of their property without due process (or due course) of law, for the reason that the act does not provide for personal service [619]*619of notice upon persons whose property is condemned, prior to the appropriation thereof. In support of their position,, appellants cite the fact that the .said act makes no express- provision for the filing of objections to the taking after notice by personal service as provided- in Section 48-2005 of the Statutes. They then cite the cases of The Cemetery Co. v. Warren Sch. Twp. et al. (1957), 236 Ind. 171, 178, 139 N. E. 2d 538, and Mullane v. Central Hanover B. & T. Co. (1950), 339 U. S. 306, 314, 94 L. Ed. 865, as sustaining their position that, in the absence of service of notice and opportunity to object to the taking, the act is unconstitutional.
In the Cemetery case, supra, this court correctly stated the law as follows: . At some place in the proceedings, and by some method the landowner is entitled to contest the legality, of the condémnation proceedings, and question the authority under which the attempt is being made to take his property . . .
In the Mullane case, supra, the United States Supreme Court stated the accepted rule regarding due process as follows: “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances to apprise interested parties of the pendency of the action and to afford them an opportunity to present their objections. . . .” This court has heretofore been called, up on to consider . substantially these same principles as applied to the condemnation statute here in question. In the case of Falender v. Atkins (1917), 186 Ind. 455, 459-461, 114 N. E. 965, this court stated the law as follows:
“ ‘Due process of law’ within the meaning of the fourteenth amendment, supra, is not - intended "
[620]*620to control the power of the State to determine by what process legal rights may be asserted, provided such procedure will afford reasonable notice and a fair opportunity to be heard before final determination. Iowa Central R. Co. v. Iowa (1895), 160 U. S. 389, 16 Sup. Ct. 344, 40 L. Ed. 256. . . .
“. . . The sections of the act to which we have referred provide for notice to all persons interested or who may be injuriously affected, and for a day when they may be heard concerning each step to be taken by the board, beginning with notice of the adoption of the resolution, down to the final action on the assessments or awards, and for an appeal to the circuit or superior court of the county by any party who may feel aggrieved by the board’s action. If, as appellant contends, this is an action for damages for property taken, or an invasion of his private right, then the act in question clearly gave him a remedy, and an opportunity to be heard before a tribunal vested with power or jurisdiction to determine his rights in the premises, and notice which the legislature has deemed sufficient. Under these circumstances we cannot say that the proceedings were not well within the principle required to constitute due process of law. Bowlin v. Cochran (1903), 161 Ind. 486, 69 N. E. 153; Strange v. Board (1909), 173 Ind. 640, 91 N. E. 242; Hudson Tp. v. Smith, supra (182 Ind. 260, 106 N. E. 359).”
In the more recent case of Slentz et al. v. City of Fort Wayne et al. (1954), 233 Ind. 226, 229, 118 N. E. 2d 484, this court also considered the constitutionality of the act now in question. In the latter case the issue of constitutionality was first presented on appeal from the board of public works to the Superior Court of Allen County. It was there asserted among other things that the act was unconstitutional for the reason “. . . that the provision of the statute making the action of the board in confirming, modifying or rescinding a resolution after hearing, as provided in the act, final [621]*621and conclusive on all persons is in violation of Article I of Section 12 of the Constitution of Indiana.”
In deciding the case this court enunciated the following principles of law: (1) It is not essential to due process that an appeal from a decision of an administrative board be provided at every step of the proceedings for condemnation, but (2) the legislature cannot deprive courts of their inherent power to review such actions when they are infested with fraud, capriciousness or illegality. This court then construed this provision of the statute merely to mean that in the absence of fraud, capriciousness or illegality, the action of such municipal body is “final and conclusive” upon the legislative question as to the necessity for taking and that such determination cannot again be questioned at subsequent steps in the proceedings. In that case this court held that the act does not presume to prohibit a review of such action for grounds of fraud, capriciousness or illegality and that the issue of illegality was properly presented to the trial court on a “Complaint of Appeal” from the action of the Board of Public Works.
It necessarily follows from the decisions in the Slentz and Falender cases, supra, that, notwithstanding the language of the statute [§48-2005, supra], any issue as to the legality of the condemnation proceedings under the special statute here in question, may be presented on appeal to a trial court, as part of such proceedings. This right to judicial review is significant as related to the question of due process for the reason that the statute [§48-2003, supra] provides for service of personal notice upon each property owner whose land is appropriated prior to final action by the board of public works, which action, in turn, precedes “appeal” of the proceedings to a court. Thus the owner of the property is given an [622]*622opportunity to challenge the legality, of-the proceedings after personal notice is served upon him. - In.this manner, the right of due process, which requires reasonable notice and a fair opportunity to be heard before final determination is met. Falender v. Atkins, supra [186 Ind. 455, 460].
Two: Appellants assert that, having -adopted the declaratory resolution, appellees were required to proceed under the Eminent Domain Act [§8-1701, et. seq., supra], and not under the special statute [§§48-2001, 48-2003, 48-2005, supra]. It is appellants’ contention that the Eminent Domain Act superseded the conflicting provisions of the special act. In support of this position, appellants cite §3-1701, supra, which expressly provides, in part:
“Any person, corporation or other body having the right to exercise the power of eminent domain for any public use, under any statute, existing or hereafter passed, and desiring to exercise such power, shall do so only in the manner provided in this act, except as otherwise provided herein. . . .”
A decision upon the question here presented requires an understanding regarding the history of the respective statutes. The Eminent Domain Act was enacted in 1905. It is a general act, applicable to the state and all subdivisions and agencies thereof, created by the legislature. However, the same legislature also, by separate act, established the procedure by which “any city” shall exercise the right of condemnation. [§48-2001, supra.]
The rule of statutory construction applicable under the above circumstances has been stated as- follows:
“General and special acts may be in pari materia. If so, they should be construed together. Where one statute deals with a subject in general terms, and another deals with’ a part of the same subject in a more detailed way, the two [623]*623should be harmonized if possible; but if there is any conflict, the latter will prevail, regardless of whether it was passed prior to the general statute, unless it appears that the legislature intended to make the. general act controlling.” Horack’s Sutherland Statutory Construction, 3rd Ed., Vol. 2, §5204, pp. 541-542. Kingan & Co. v. Ossam (1921), 190 Ind. 554, 131 N. E. 81; Huff v. Fetch (1924), 194 Ind. 570, 143 N. E. 705; City of New Albany v. Lemon (1925), 198 Ind. 127, 149 N. E. 350, 152 N. E. 723; Starr v. City of Gary (1934), 206 Ind. 196, 188 N. E. 775.
Where the same session of the legislature adopted a general law regarding the condemnation of property by eminent domain [§3-1701, et seq., supra], and also adopted a special law with limited
application upon the same subject [§48-2001, et seq., supra], we must assume that the legislature intended the special law to operate as an exception to the general law, as relating to actions by cities and towns. However, in support of their position to the contrary, appellants cite the cases of State v. Pollitt (1924), 220 Ind. 593, 600, 45 N. E. 2d 480, and Halstead v. City of Brazil (1925), 83 Ind. App. 53, 57, 147 N. E. 629. Although these cases contain language which lends support to appellants’ position, they are not controlling of the facts here presented. The case of Pollitt, supra, involved a condemnation of land by the State of Indiana through the Highway Commission. The court correctly held that the proceeding was controlled by the . general Eminent Domain Act since the action did not fall within any exception to the general act, as is true in the case at bar. True, in that ease, this court stated:
“The act supersedes all other statutes prescribing condemnation procedure, save one mentioned in §12 [Art. 1, §12]. The words ‘or other body having the right to exercise the power of eminent [624]*624domain . . .’ in §1 are broad enough to include the State or any of its administrative agencies.”
However, this language must be considered in the light of the facts actually before the court. It is not controlling of the issues before us.
In the Halstead case, supra, the Appellate Court held that injunction would not lie against the city of Brazil to prevent it from appropriating lands for a sewage treatment plant. The action was prosecuted on the ground "that the common council of the city had ‘not adopted any ordinance providing a method for the exercise of its general powers for condemnation of land.’ ” The allegation itself is ambiguous and, with regard thereto, this court stated: ". . . the method of procedure was provided by statute . . . and no ordinance as to the method was required.” The injunction was denied on the ground that the Eminent Domain Act provided adequate remedy at law under which the condemnation proceedings could be contested. Whether or not the ruling of the court upon this issue was in error, we need not decide. Clearly appellant in the case at bar had a legal remedy under §48-2001, et seq., and therefore, the injunction was properly denied.3
In the absence of a statute which specifically provides the procedure by which a municipality shall condemn property, it is not disputed that such proceedings shall be governed by the Eminent Domain Act. However, where, as in this case, [625]*625a special act was concurrently enacted which specifically provides that a different procedure shall be followed, the municipality, having only that authority which is granted it by the state, must follow the procedure prescribed by the legislature. Horack’s Sutherland Stat. Constr., 3rd Ed., Vol. 2, §5203, p. 541. Kingan & Co. v. Ossam, supra (190 Ind. 554, 131 N. E. 81). Therefore, we conclude that these proceedings were properly initiated and conducted by the appellees under §48-2001, et seq., supra.
Three: We consider whether or not in the case at bar the declaratory resolution by which appellees sought to appropriate an easement upon appellants’ land as a right of way, described the easement with sufficient certainty to give the proceeding validity.4 The land was described in the declaratory resolution as follows:
“Also an easement for a right of way for the purpose of installing, operating, maintaining, repairing and replacing a sewer over and across a tract of land lying south of State Highway No. 69, between the lands of The Texas Company and the Sohio Pipe Line Company in Sections 7 and 18, Township 7 South, Range 13 West, said easement to include a strip of land 40 feet wide, being 20 feet on each side of the center line of a sewer which shall leave State Highway No. 69 at a point east of the bridge and lead directly to the Sewage Disposal Plant as proposed to be constructed by the City of Mount Vernon according to the plans and specifications now on file in the office of the Clerk-Treasurer of said city, which plans and specifications are, by reference made a part hereof the same as if copied herein.” [P. 41 Appellants’ Br.]
[626]*626In the instant case the declaratory resolution, although indefinite upon its face, incorporates by reference the plans and specifications for the project in describing the location of the easement in question. These and the record in this proceeding were on file in the office of the city clerk, This procedure has been approved by the decisions of this court as a means of identifying with certainty the land described in condemnation proceedings. Prather v. The Jeffersonville, Madison and Indianapolis Railroad Co. (1875), 52 Ind. 16, 40; Indianapolis and Vincennes Railroad Company v. Newsom (1876), 54 Ind. 121; Southern Ind. R. Co. v. Indianapolis, etc., R. Co. (1907), 168 Ind. 360, 81 N. E. 65. Furthermore, the rule in this state is now well settled that the description of real estate is sufficient for condemnation purposes if the same can be determined and. the land identified from the intrinsic record by one skilled in such matters, such as a surveyor or engineer. In such proceedings it is the office of a description not necessarily to fully identify, but to furnish the means by which the land may be identified with certainty. When that office is fulfilled, the description is sufficient.. Darrow v. Chicago, etc., R. Co. (1907), 169 Ind. 99, 104, 81 N. E. 1081; The German Mutual Insurance Company of Indianapolis v. Grim and Others (1869), 32 Ind. 249; Pittsburgh, etc., Ry. Co. v. Beck (1899), 152 Ind. 421, 53 N. E. 439.
In the case at bar, a professional engineer stated that through the description contained in the declaratory. resolution, adopted by appellee, City .of Mt. Vernon, and the plans and specifications, referred to therein, the location and extent of the easement could be determined with certainty. Therefore, we conclude that the land was sufficienty identified in the declaratory resolution which incorporated, by [627]*627reference, the plans and specifications. However, the tract having been identified only by resort to plans and specifications, the judgment should have reduced the description thereof to legal terms, from which judgment, standing alone, the land could be identified as to its location, boundary and/or area and entered within the deed records of the county as notice to the public. This would seem to be a minimum requirement for identifying the land for tax and other public purposes, which is an essential function of the judgment.
Four: The final question presented is related to the sufficiency of the damages awarded.' Appellants assert that the award is erroneous as a- matter of law, for the reason that the court failed to consider and assess as damages the value of their property as a business operation, Appellants ássert that by reason of this failure, the taking was in violation of Article 1, §21 of the Constitution of Indiana, which forbids the taking of property for public purpose without just compensation.
The evidence regarding appellants’ business operations as related to the land appropriated, is summarized as follows: The area appropriated consists of 7.75 ¿eres. It was part of a 10 acre, tract. This 10 acre tract and a 75 acre tract across the road had for several years been used by appellants for dry feeding cattle. After the appropriation the remaining part of the 10 acre tract was not adaptable to this purpose. Half the cattle were put on the 10 acre tract and half on the 75 acre tract. Part of these cattle were raised by appellants on other farms owned by them, with no record kept regarding their cost. Part were bought and fattened. Appellants assert that half their average yearly profits from the sale of these cattle should be credited to the 10 acre tract, in the sum of $2,767.00. [628]*628Except for “the water supply, the barns and the feeding troughs and the convenience of the thing, there is no difference in that land than any other.” [Tr. p. 171.]
As a general rule, it has been held that:
“. . . profits derived from a busines conducted on property is too speculative, uncertain, and remote to be considered as a basis for computing or ascertaining the market value of the property in condemnation proceedings. On the other hand, the courts as a general rule accede to the view that income from property in the way of rents and profits is an element of consideration in arriving at the market value or measure of compensation to be paid for taking property in eminent domain proceedings. See annotations in 65 ALR 456.
“. . . It seems proper to draw a distinction between income which represents the profits earned by a business conducted on the land in question (which would, of course, be attributable in many instances not only to the property itself but also to such other considerations as market conditions, the skill and knowledge of the proprietor of the business, etc.) and income which is attributable solely or primarily to the use of the property itself, such as rents.” Annotations 184 ALR 1125-1126.
Whether on the one hand the dry feeding of live stock upon this particular tract of land constituted a business conducted on the property, profits from which were “too speculative, uncertain and remote” to be considered in determining the value of the land appropriated, or whether, on the other hand, the income was “attributable solely or primarily to the me of the property itself,” was a question of fact which the jury decided adversely to the appellants. The evidence upon this issue is indefinite and conflicting and, therefore, not conclusive in support of appellants’ position. The damages awarded were within the range of the evidence. This court, on [629]*629appeal, will not weigh the evidence or substitute its judgment or conclusion for that of the trial court or jury. City of Terre Haute v. Myers (1940), 216 Ind. 349, 24 N. E. 2d 698; Sims Mtr. Transp. Lines, Inc. v. Davis, Admx. (1955), 126 Ind. App. 344, 130 N. E. 2d 82; Armstrong Cork Co. v. Maar (1953), 124 Ind. App. 105, 111 N. E. 2d 82, 112 N. E. 2d 240; Hinds, Executor, etc. v. McNair, et al. (1955), 235 Ind. 34, 129 N. E. 2d 553; Love v. Harris (1957), 127 Ind. App. 505, 143 N. E. 2d 450; Gates v. Petri (1957), 127 Ind. App. 670, 143 N. E. 2d 293.
The judgment is therefore affirmed, except as to that part thereof which incompletely describes the easement appropriated in the proceedings, as follows:
“Also an easement for a right of way for the purpose of installing, operating, maintaining, repairing and replacing a sewer over and across a tract of land lying south of State Highway No. 69, between the lands of the Texas Company and The Sohio Pipe Line Company in Sections 7 and 18, Township 7 South, Range 13 West, said easement to include a strip of land 40 feet wide, being 20 feet on each side of the center line of a sewer which shall leave State Highway No. 69 at a point east of the bridge and lead directly to the Sewage Disposal Plant as proposed to be constructed by the City of Mount Vernon according to the plans and specifications now on file in the office of the Clerk-Treasurer of said City, which plans and specifications are, by reference, made a part hereof the same as if copied herein.”
And the court is ordered to modify its decree as to the description of said easement by describing the same in specific legal terms, and the court is authorized to reopen the case and hear additional evidence, solely for that purpose, if necessary.
Judgment affirmed in part and ordered modified in part.
[630]*630Bobbitt, C. J., Emmert and Landis, JJ., concur.
Arterburn, J., dissents with opinion.