Opinion
No. 27,598.
Filed February 9, 1942.
1. EMINENT DOMAIN — Proceedings — Appeal — Decision Sustaining Objections to Complaint Appealable. — The provision of the statute pertaining to appeals taken by a plaintiff who is seeking to condemn real estate and whose right so to do is challenged by objections of defendants whose lands or interests therein are affected does not authorize an appeal from an order appointing appraisers, but that which is to be reviewed by such appeal is the decision sustaining the objections to the complaint and denying plaintiff's right to take the land. p. 426.
2. EMINENT DOMAIN — Proceedings — Appeal — Determination — Effect of Affirmance or Reversal. — If, on appeal from the decision of the court sustaining the objections to a complaint seeking to condemn real estate and denying plaintiff's right to take the land, the decision is sustained, the case is ended, but if it is reversed, appraisers are appointed, and the cause proceeds to final judgment from which either party may appeal. p. 426.
3. EMINENT DOMAIN — Proceedings — Appeal — Parties Who May Appeal. — Under the statute giving the right to defendants or any of them to appeal from an interlocutory order appointing appraisers in an eminent domain proceeding, only the persons whose lands are about to be taken or whose interests therein are affected by the proceedings may appeal. p. 427.
4. EMINENT DOMAIN — Proceedings — Appeal — Right of State to Appeal — Construction of Statute. — In a proceeding by a landowner against the State for the assessment of damages for lands condemned for highway purposes, the statute concerning appeal from an interlocutory order appointing appraisers by defendants did not give the right to the State to appeal from such order, since the word "defendant" refers to the person against whom the power of eminent domain is asserted. p. 427.
5. EMINENT DOMAIN — Proceedings — Appeal — Application of Statute — Parties Designated. — Under the statute concerning appeals in eminent domain proceedings before final judgment, the word "plaintiff" refers to the State or corporation having the sovereign power of eminent domain, and the word "defendant" refers to the person against whom the power is sought to be asserted. p. 427.
6. CONSTITUTIONAL LAW — Distribution of Governmental Powers and Functions — Judiciary — Construction of Statutes — Provisions Not Supplied. — In construing a statute, the Supreme Court cannot supply a provision which the Legislature did not choose to make. p. 427.
7. EMINENT DOMAIN — Proceedings — Appeal — Statute Special in Character — Procedure to Be Followed. — The statute concerning appeals in eminent domain proceedings before final judgment is special in character, and the party appealing thereunder must bring himself clearly within the procedure which he undertakes to invoke. p. 428.
8. STATUTES — Construction — Right of Appeal From Interlocutory Orders — Strict Construction Required. — Statutes providing for appeals from interlocutory orders must be strictly construed. p. 428.
9. EMINENT DOMAIN — Proceedings — Appeal — Interlocutory Order Appointing Appraisers — Question of State's Right Jurisdictional. — The question as to whether the State had a statutory right to appeal from an interlocutory order appointing appraisers for the assessment of lands taken by the State for highway purposes is jurisdictional and cannot be waived. p. 428.
10. EMINENT DOMAIN — Proceedings — Appeal — Final Judgments — Scope of Statute. — Since statutes recognize the right of appeal from final judgments in proceedings for the assessment of damages for property taken by eminent domain, in such appeal the whole case may be reviewed as in other appeals from final judgments. p. 428.
From the Hancock Circuit Court; John H. Morris, Special Judge.
Proceeding by George Wood against the State of Indiana for the assessment of damages for a taking by the State for highway purposes of his interest in real estate. From an interlocutory order appointing appraisers, the State appealed.
Appeal dismissed.
George N. Beamer, Attorney General, Caleb J. Lindsey, Deputy Attorney General, and Arthur C. Van Duyn and John Hawk, both of Greenfield, for appellant.
Connor D. Ross and O.B. Hangar, both of Indianapolis, and W.E. Bussell, of Greenfield, for appellee.
Appellee contends, and the trial court adopted his theory, that this proceeding begun by him was filed pursuant to § 3-1711, Burns' 1933, § 14071, Baldwin's 1934, for assessment of damages for a taking by the State for highway purposes of his interest in real estate. Appellant has another theory which it is not necessary here to note.
The parties agree that the appeal is from an interlocutory order appointing appraisers and governed by § 3-1705, Burns' 1933, § 14065, Baldwin's 1934. Both sections are a part of the Eminent Domain Act of 1905. As pointed out in Hallett v. Calvert (1934), 207 Ind. 25, 191 N.E. 77, there are two separate provisions for appeal in the latter section.
The first provision pertains to appeals taken by a plaintiff who is seeking to condemn real estate and whose right so to do is challenged by objections of defendants whose lands or 1, 2. interests therein are affected. This provision does not authorize an appeal from an order appointing appraisers. That which is to be reviewed by such appeal is the "decision" sustaining the objections to the complaint and denying plaintiff's right to take the land. If on appeal the decision is sustained the cause is ended; if it is reversed appraisers are appointed, and the cause proceeds to final judgment from which either party may appeal.
The second provision specifically gives the right to appeal from an interlocutory order appointing appraisers but the right is given only to "defendants, or any of them"; namely, the 3. persons whose lands are about to be taken or whose interests therein are affected by the condemnation proceedings.
The fact that in cases like the one at bar the land owner is the moving party or the plaintiff and that the State is the defendant may create the impression that the State is 4, 5. within the designation "defendants, or any of them." But it seems clear from the context that the Legislature used the word "plaintiff" in this section as meaning the State or the corporation having the sovereign power of eminent domain and equally clear that "defendant" refers to the person against whom the power is sought to be asserted. Nowhere in the whole statute are the words "plaintiff" and "defendant" used in any different sense.
Section 3-1711, Burns' 1933, § 14071, Baldwin's 1934, provides that a person whose land has been taken for a public use "may proceed to have his damages assessed under this act, 6. substantially in the manner herein provided." The complaint in this proceeding is founded upon the fact that there has been a taking. The right to take is the only question litigated in an appeal under the first provision. But in this proceeding that right is conceded and is not in litigation. While there may be good reason why the Legislature should have provided an appeal from an interlocutory order determining that there has been a taking, we find no such provision. It cannot be inferred from the first part of § 3-1705, Burns' 1933, § 14065, Baldwin's 1934, and as before stated only the person injured by the taking can appeal under the second part of the section. We cannot supply a provision which the Legislature did not choose to make.
This statute is special in character and as stated in Indiana Service Corp. v. Town of Flora (1941), 218 Ind. 208, 211, 31 N.E.2d 1015, 1016, the appellant "must bring himself 7, 8. clearly within the procedure which he undertakes to invoke," for statutes providing for appeals from interlocutory orders must be strictly construed. Nisius v. Chapman (1912), 178 Ind. 494, 496, 99 N.E. 785, and cases cited.
We are aware that in State Highway Commission v. Sandbrink (1939), 215 Ind. 71, 18 N.E.2d 382, a similar appeal was taken and decided. But neither the parties nor the court seem to 9. have been cognizant of the failure of the statute to authorize such an appeal. The question is jurisdictional and therefore cannot be waived.
Section 3-1707, Burns' 1933, § 14068, Baldwin's 1934, and § 3-1710, Burns' 1933, § 14070, Baldwin's 1934, recognize the right of appeal from the final judgment in this kind of a 10. proceeding. We see no reason why in such appeal the whole case may not be reviewed as in other appeals from final judgments.
This appeal, being unauthorized by statute, is dismissed.
NOTE. — Reported in 39 N.E.2d 448.