State Ex Rel McNutt v. Orcutt

199 N.E. 595, 211 Ind. 523, 1936 Ind. LEXIS 176

Opinions

Fansler, J.

— Appellant began this proceeding in the exercise of the power of eminent domain for the purpose of appropriating two certain tracts of land, the first, containing 6.65 acres, being the property of Minnie P. Orcutt, and the second, consisting of .85 part of an acre, being the property of Minnie P. Orcutt and Charles S. Orcutt, her husband, as tenants by the entireties. It is alleged that the land condemned is to be used for state forestry purposes. Appraisers appointed by the court fixed the damages of Minnie P. Orcutt at $424.50, and the damages of Minnie P. Orcutt and Charles S. Orcutt, at $25.50. Exceptions to this report were filed by each of the parties, and the cause being at issue upon the question of the amount of damages was submitted to the jury for trial, which resulted in a verdict against appellant and in favor of Minnie P. Orcutt in the sum of $9,710.15, and in favor of Minnie P. Orcutt and Charles S. Orcutt in the sum of $17. Appellant’s motions for a new trial and to modify the judgment were overruled, and these rulings are assigned .as error.

It appears that appellee Minnie P. Orcutt is the owner of 120 acres of land, consisting of three 40-acre tracts lying in a row from east to west; that the 6.65 acres appropriated is an irregular piece out of the north part of the east 40 and the northeast corner of the middle 40; that appellees, Minnie P. Orcutt and Charles S. Orcutt, are the owners as tenants by the entireties of a' 5-acre tract immediately adjoining the northeast corner of the each 40 acres of Minnie P. Orcutt’s land upon the east. The .85 part of an acre appropriated is part of this 5-acre tract. The 120 acres do not touch upon any public highway, but are entirely surrounded by land owned by the state, except at one point where they adjoin the land of a stranger and the point where they adjoin the land of Minnie P. Orcutt and Charles S. Orcutt. The 5-acre tract belonging to Minnie P. Orcutt and Charles S. Orcutt is located upon a public highway. Title to the 120 acres and the 5 acres was formerly united in the same person. At that time there was a roadway leading from the public highway across the 5-acre tract and across the 6.65 acres appropriated out of the 120-acre tract, and into the 120-acre tract, which was used as a means of ingress and egress from the 120 acres, and the same road has been continuously used for the same purpose until the present time, and is the only means of ingress and egress from the 120 acres and from what will remain of the 120 acres after the appropriation of the 6.65 acres.

The case was tried, evidence was admitted, and jury instructed upon the theory that the appropriation of the 6.65 acres entirely cuts off the right to use the private way above described as a means of ingress and egress from the remaining 113 acres, and damages were assessed upon the theory that the 113 acres were entirely cut off from any means of reaching the public highway. The correctness of this theory is questioned by the errors assigned.

There is a universally accepted doctrine that: “Where, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which at the time of the severance is in use, and is reasonably necessary for the fair enjoyment of the other, then, upon a severance of such ownership, whether by voluntary alienation or by judicial proceedings, there arises by implication of law a grant or reservation of the right to continue such use. In such case, the law implies that with the grant of the one an easement is also granted or reserved, as the case may be, in the other, subjecting it to the burden of all such visible uses and incidents as are reasonably necessary to the enjoyment of the dominant heritage, in substantially the same condition in which it appeared and was used when the grant was made.” John Hancock Mutual Life Insurance Co. v. Patterson (1885), 103 Ind. 582, 586,2 N. E. 188. The private way in question was in use when all of the tracts of land here involved were in the possession of a common owner, and was then, and has continued to be, the only means of reaching the public highway from the interior of the 120-acre tract. Whether the 5-acre tract or the 120-acre tract was first conveyed by the common owner does not appear nor is it material, since there was an obvious servitude imposed upon the 5-acre tract, now owned by Minnie P. Orcutt and Charles S. Orcutt, in favor of the 120-acre tract, to the extent of the use of the way as a means of communication with the public highway. The same roadway has been in continuous use for more than twenty years, not only across the 5-acre tract, but also the 6.65 acres, which are by this proceeding appropriated out of the 120-acre tract. Appellees do not question that, under the rule of law above referred to, in the absence of an express provision to the contrary, a way of necessity would be implied upon a severance of the land appropriated by grant or judicial proceeding, but they insist that the rule does not apply where the severance is brought about by exercise of the power of eminent domain; that there is no grant or contract involved in a condemnation proceeding; and that it is not a judicial proceeding, since the power of eminent domain vests in the legislative branch of the government. They rely upon those authorities which say that a way of necessity rests upon the implied intention of the parties, and contend that in a condemnation proceeding there can be no implied grants or reservations, since there is no contractual relationship.

It is unquestionably the rule that the right to a way of necessity cannot arise against the lands of a stranger. The right can only be asserted where the tract claiming the right of way and that over which it is claimed descended from a common owner. The court, in Stewart v. Hartman et al. (1874), 46 Ind. 331, 341, 342, quotes as follows: “Kent says: ‘Sergeant Williams is of opinion, that the right of way, when claimed by necessity, is founded entirely upon grant, and derives its force and origin from it. It is either created by express words, or it is created by operation of law, as incident to the grant; so that, in both cases, the grant is the foundation of the title. If this be a sound construction of the rule, then it follows, that, in the cases I have mentioned, the’ right of the grantor to a way over the land he has sold, to his remaining land, must be founded upon an implied restriction, incident to the grant, and that it cannot be supposed the grantor meant to deprive himself of all use of his remaining land. This would be placing the right upon a reasonable foundation, and one consistent with the general principles of law.’ 3 Kent Com. 423, original paging. Blackstone says: ‘A right of way may also arise by act and operation of law: for, if a man grants me a piece of ground in the middle of his field, he at the same time tacitly and impliedly gives me a way to come to it; and I may cross his land for that purpose without trespass.’ 2 Bl. Com. 36, star paging. In the same place, Mr. Chitty, in his notes, says: ‘A way of necessity, when the nature of it is considered, will be found to be nothing else but a way by grant. It derives its origin from a grant, for there seems to be no difference where a thing is granted by express words, and where by operation of law it passes as incident to the grant; and of course it is as necessary to set forth the title to a way of necessity as it is to a way by express grant’.” And concludes that: “There cannot legally exist a general way of necessity without reference to the manner whereby the land over which the way is claimed became charged with the burden.” It may be that the necessity of tracing title to a common owner to find a basis for the right to a way of necessity induced the statements that the right derives its force and origin from a grant, and still it is recognized that the right arises by operation of law, and not in any event by express contract. It is often said that the taking of land under the power of eminent domain is in the nature of a compulsory sale at a price to be agreed upon, or, upon failure of agreement, to be fixed by judicial determination. See cases, 20 C. J. 515, note 11. It is said upon abundant authority: “As in the case of the implication of easments generally, and with more potent reasons, a right to a way of necessity may arise where the severance of land is affected by judicial or legal proceedings.” 9 R. C. L. 771. But it is clear that in many, if not in most, judicial proceedings there is no express grant from the owner, if there be grant at all, and that in most cases the severance is involuntary. Where there are express convenants in a deed, conveying all right, title, and interest of every kind and character, the implication that the parties contracted for, and that there was a grant of an easement for, a way is contrary to the express convenants, so that, in fact, it cannot be truly said that the right of way was created by grant or agreement of the parties. It may be more correctly said that it is created notwithstanding the terms of a contract to the contrary, and it is clearly apparent that the right is enforced without any evidence whatever of the intention of the parties. It would seem that to treat the transaction’ as an enforced grant or sale by the owner involves no more difficulties than are involved in implying an intention contrary to that which is expressed in a written conveyance. It is said in Dillman et al. v. Hoffman (1875), 38 Wis. 559, that the doctrine originally arose because it was for the public good that the land should not be unoccupied, and it is said by the annotator in 8 L. R. A. 329, that this public policy is probably the true foundation for the doctrine. But, whatever is said to be the source of the doctrine, it is clearly apparent that it did arise in fact from the consciousness of courts that any other rule would be against the public interest. And if public policy requires that, in the absence of an express agreement to the contrary, the reservation of a way of necessity will be implied as against one who takes by private grant, no reason is seen why the same policy should not require the same result where the state enforces its right to take private property. If the public good is promoted in one instance it is in the other. The reasons for enforcing the right are identical in either case, and no good reason is seen why the state should not be presumed to have intended that which its policy presumes was intended by an individual under like circumstances.

In Cleveland, C. C. & St. L. R. Co. v. Smith (1912), 177 Ind. 524, 539, 97 N. E. 164, the question under consideration was whether a landowner had an easement to pass over a railroad right of way through his land which had been taken by condemnation. It is said: “There was, after the 1869 condemnation, no practical means of travel to or from the tract south of the railroad and west of the creek, except over appellant’s right of way, and in such case, a right of way of necessity, was, by legal implication, reserved in the owner, when the original condemnation proceedings were had.” The cases cited and relied on are John Hancock Mutual Life Ins. Co. v. Patterson, supra, and others dealing with the right to a way of necessity in transactions between individuals. The court obviously believed that the same principles controlled the situation, and that the right to a way of necessity arises by implication of law where property is appropriated through the power of eminent domain, in the same manner as in the case of transactions between individuals. The court there apparently saw no distinction, and no distinction is seen now. And there is no basis for a distinction between cases where the state itself takes or where the power of eminent domain is exercised by municipalities or private corporations. There is nothing inconsistent with this view in the opinion in Cleveland, C. C. & St. L. R. Co. v. Hadley et al. (1913), 179 Ind. 429, 101 N. E. 473. It may be inferred from the language of that opinion 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. There is now a statute providing for such crossings. In the case of New Jersey, etc., R. Co. v. Tutt et al. (1907), 168 Ind. 205, 80 N. E. 420, it was held that, when a railroad condemns a right of way over land through which there is an artificial ditch which serves the purpose of carrying away surface water only, there was no easement or right in the landowner to have the ditch maintained across the right of way, and it was assumed that damages for its obstruction were awarded at the time of the condemnation. The decision is based upon the ground that one may take such measures as he may deem expedient to keep surface water off from him, and, quite clearly, the court did not understand that the rule of a way of necessity was broad enough to include the right to drain surface water. The opinions in Evansville Terminal Railway v. Heerdink (1910), 174 Ind. 537, 92 N. E. 548, and Louisville & N. R. Co. et al. v. Western Union Telegraph Co. (1916), 184 Ind. 531, 111 N. E. 802, deal with and distinguish unaccepted promissory stipulations for future undertakings on the part of the condemning party of its own motion from reserved rights and easements, and there is nothing in those opinions inconsistent with the views here expressed. Appellees cite

the case of Cedar Rapids, etc., R. Co. v. Raymond et al. (1887), 37 Minn 204, 33 N. W. 704, which holds that in the case of condemnation of land by a railroad there are no implied reservations of a way of necessity. An examination of the opinion indicates that the decision was influenced by a statute. They also cite Banks et al. v. School Directors, etc., of McLean County (1901), 194 Ill. 247, 62 N. E. 604. That case involved the condemnation of a site for a school house in the center of a pasture. There are expressions in the case which seem to sustain appellees’ view, but the decision rests upon the ground that, by the issues and judgment, a way to the land condemned was excluded from the consideration of the jury in fixing the damages.

The court therefore erred in the giving and refusal of instructions and the admission of evidence, upon the theory that the doctrine of way of necessity does not apply to condemnation proceedings.

Upon motion of appellees, the court awarded judgment for the amount of the verdict plus interest at the rate of 6 per cent, per annum from the 19th day of July, 1933, which is said in the judgment to be the date on which the plaintiff took possession. Appellant contends that the state is not liable for the payment of interest, except where there is a positive statute or an express contract providing for interest. But the Constitution provides that: “No man’s property shall be taken by law, without just compensation.” Art. 1, §21, Constitution of Indiana. In New York, C. & St. L. R. Co. v. Roper et al. (1911), 176 Ind. 497, 96 N. E. 468, it is held that, in cases in which the jury is required to determine the value of property at a given date in awarding damages, interest should be added to the date of verdict, and that otherwise the injured party is not fully compensated. Many persuasive reasons are ■given in demonstrating that compensation in such cases is not complete without interest for delay in payment. The reasoning fully applies to condemnation cases, and requires us to conclude that interest is a proper element of damage. But the interest should be included in the verdict, and the jury should be-instructed accordingly, and there should be evidence as to the date of taking, for, if the landowner is permitted to remain in possession, notwithstanding title may be treated as passing as of the filing of proceedings, and remains in possession and enjoys the benefits of the appropriated land, interest should not be allowed. The question of interest in any given case is one of fact for the jury. For a discussion of other elements which affect the rule, see Schnull et al. v. Indianapolis Union Railway Co. (1921), 190 Ind. 572, 131 N. E. 51; and State v. Hamer et al. (1936), post 570, 199 N. E. 589. Appellees were entitled to an instruction covering the elements of damage, and if interest was not included they cannot complain. The court erred in adding interest to the amount of the verdict.

In view of what we have said, the other questions presented are not likely to arise upon another trial.

Mrs. Orcutt’s land is used as a fruit and berry farm. In the court below it was insisted that by the condemnation she would be deprived of access to the remaining 113 acres, and evidence was introduced to show that without a means of reaching the highway the land would be of no value whatever. Appellant insisted that it took the condemned land subject to a right of way of necessity over the driveway which •had been used in connection■ with the farm, and that the remaining 113 acres would continue to have the right to use the driveway, and that damages should be fixed accordingly, and consistently objected to testimony offered and instructions which were tendered upon the contrary theory, and tendered instructions consistent with its own theory. Since Mrs. Orcutt did not seem to wish to be deprived of the use of her remaining land, and since appellant insisted that it did not want to deprive her of that use, it is difficult to understand why the pleadings were not amended or other steps taken at the trial to clarify the issue and accomplish a result satisfactory to both parties. The case was tried upon appellee’s theory, and the amount of recovery clearly indicates that the jury understood and believed that appellee’s 113 acres would be useless. Upon a retrial it will be understood that appellees are entitled to damages based upon the value of the land taken, and any incidental damage to their remaining land, and that they cannot be deprived of their right of way to the public highway except in a proceeding which expressly condemns and deprives them of that right.

Judgment reversed, with instructions to sustain appellant’s motion for a new trial, and for further proceedings not inconsistent with this opinion.

Treanor, J., dissents.