§ 8-4-1-16 — Eminent domain; damages; appraisals; appeals

(a) A railroad is authorized to enter upon any
land for the purpose of examining and surveying its railroad line. A rail
carrier may appropriate as much land as is deemed necessary for its
railroad, including necessary side-tracks and water stations, materials
for constructing, except timber, a right-of-way over adjacent lands
sufficient to enable the company to construct and repair its road, and
a right to conduct water by aqueducts, and the right of making proper
drains.
(b) The rail carrier shall deposit with the clerk of the circuit court of
the county where the land lies, a description of the rights and interests
intended to be appropriated. The land, rights, and interests shall belong
to the rail carrier, to use for the purpose specified, by making or
tendering payment as provided in this section.
(c) The rail carrier may, by its directors, purchase lands, materials,
rights-of-way, or interests of the owner of the land, or, in case the land
is owned by a mentally incompetent person or a person under eighteen
(18) years of age, at a price to be agreed upon by the guardian or parent
of the mentally incompetent person or person under eighteen (18) years
of age, if the land, material, right-of-way, or interest is appraised by the
court in which the description is filed. Upon agreement and approval,
the owner, guardian, or parent, as the case may be, shall convey the
premises purchased, in fee simple or otherwise, as the parties may
agree, to the rail carrier. The deed, when made, shall be valid in law.
(d) If the rail carrier does not agree with the owner of the land, or
with the owner's guardian, if the owner is incapable of contracting,
concerning the damages sustained by the appropriation, the rail carrier
shall deliver to the owner or guardian, if within the county, a copy of
the instrument of appropriation. If the owner or the owner's guardian,
in case the owner is incapable of contracting, is unknown or does not
reside within the county, the rail carrier shall publish, in a newspaper
of general circulation in the county, for three (3) weeks, an
advertisement, concerning the substance of the instrument of
appropriation.
(e) Upon filing an act of appropriation and delivery of a copy, or
making the publication, the circuit court in the county where the land
lies, upon the application of either party, shall appoint, by warrant:
(1) one (1) disinterested freeholder of the county; and
(2) two (2) disinterested appraisers licensed under IC 25-34.1;
who are residents of Indiana to appraise the damages which the owner
of the land may sustain by the appropriation. One (1) of the appraisers
appointed under subdivision (2) must reside not more than fifty (50)
miles from the land. The appraisers shall be duly sworn. They shall
consider the injury that the owner may sustain by reason of the rail
carrier. The appraisers shall return their assessment of damages to the
clerk of the court, setting forth the value of the property taken or injury
to the property which they assess to the owner, or owners separately, to
be filed and recorded by the clerk. The rail carrier shall pay to the clerk
the amount thus assessed, or tender the amount to the party in whose
favor the damages are awarded or assessed.
(f) On making payment or tender in the manner required, it is lawful
for the rail carrier to hold the interests in the lands or materials
appropriated, and to use the materials on the roadway and within fifty
(50) feet on each side of the center of the roadway. The cost of the
award shall be paid by the rail carrier. On notice by any interested
party, the court may order payment and enforce the payment by
execution.
(g) The award of the arbitrators may be reviewed by the court in
which proceedings may be had, on written exceptions filed by either
party in the clerk's office within twenty (20) days after the filing of the
award. Notice of filing of the arbitrators' award shall be given by the
clerk of the court to all known parties to the action and their attorneys
of record by certified mail. The period of exceptions shall run from and
after the date of mailing. The court shall make an order as right and
justice may require by ordering a new appraisement on good cause
shown.
(h) Notwithstanding an appeal, the rail carrier may take possession
of the property described in the exceptions, and the subsequent
proceedings on the appeal only affect the amount of compensation to
be allowed. If, prior to the assessment, the rail carrier shall tender to the
owner (or the owner's guardian, if the owner is unable to contract) an
amount equal to the award that was made, exclusive of costs, the costs
of arbitration shall be paid equally by the rail carrier and the owner or
guardian.
Formerly: Acts 1852, 1RS, c.83, s.15; Acts 1973, P.L.22,
SEC.4; Acts 1973, P.L.23, SEC.3. As amended by P.L.33-1989, SEC.7;
P.L.113-2006, SEC.3; P.L.146-2017, SEC.7.