Opinion
Theodore L. Sendak, Atty. Gen., David L. Steiner, Deputy Atty. Gen., Indianapolis, for plaintiff-appellant.
Richard W. Gates, James R. Heuer, Gatess&sGates, Columbia City, for defendants-appellees.
HOFFMAN, Judge.
Appellant State of Indiana filed an action in condemnation against appellees to extinguish all rights and easements of ingress and egress to U.S. 30 for the purpose of establishing a limited access facility. The jury awarded appellees damages in the amount of $3,900, with interest, and judgment was entered accordingly.
IC 1971, 8-11-1-1 et seq. (Burns Code Ed.).
The sole error raised on appeal is the refusal of the trial court to give the State's Tendered Instruction No. 1, which reads as follows:
"Loss of access is compensable and may be considered by you in determining the damages to be awarded the defendant(s) only when such loss of access is special and peculiar to this property, and only when no other reasonable means of access is available to the property."
The land in question is unimproved and had no established entrances from the highways. It is a triangular piece of real estate: one leg bordering on new U.S. 30, the limited access road; another bordering on old U.S. 30; and the third bordering other real estate. The State fenced new U.S. 30 preventing any ingress or egress. Entrance to the parcel had to be from old U.S. 30 and then onto new U.S. 30.
The facts in the case of Beck v. State (1971), 256 Ind. 318, 268 N.E.2d 746, are similar to those in the case at bar. A limited access fence was constructed baring access from Highway 460. It was necessary to enter upon a frontage road before entering Highway 460. An identical instruction was given and our Supreme Court held that it was a proper instruction.
A party is entitled to have an instruction based upon his theory of the case submitted to the jury if within the issues and if there is evidence to support it. Indianapolis Horse Patrol, Inc., A Corp. et al. v. Ward (1966),247 Ind. 519, 525, 217 N.E.2d 626.
Appellees do not argue that the refused instruction was covered by other instructions, thus it can be presumed that it was not.
The trial court erred in refusing to give State's Tendered Instruction no. 1.
Judgment reversed.
LOWDERMILK, J., participating by designation, concurs.
GARRARD, J., dissents with opinion.
GARRARD, Judge, dissenting.
The State of Indiana, having previously acquired the necessary land for U.S. Highway 30, instituted this action against adjoining landowners to convert the highway to a limited access highway pursuant to IC 1971, 8-11-1-5.
The court properly instructed the jury as to the burden of proof, the necessary certainty of damages, and that damages to the residue "are measured by the difference between the fair market value of the land prior to the taking of the access rights and the fair market value of the remaining land as affected by the taking." Proper instructions were given defining fair market value and "highest and best use." The court, however, refused the state's tendered instruction # 1 which stated, "Loss of access is compensable and may be considered by you in determining the damages to be awarded the defendant(s) only when such loss of access if special and peculiar to this property, and only when no other reasonable means of access is available to the property."
Refusal of the proffered instruction was correct.
In State v. Hastings (1965), 246 Ind. 475, 206 N.E.2d 874, our Supreme Court recognized that the limited access authority provided by IC 1971, 8-11-1-5 "expressly provides for compensation to abutting property owners for loss of access."
In the case before us the instructions given by the court as to the measure and necessary proof of damages clearly satisfy the Beck requirement of special injury by limiting recovery to the diminution in fair market value of the real estate occasioned by the taking of the landowner's access rights.
The critical portion of the tendered instruction then becomes its concluding phrase,
". . . and only when no other reasonable means of access is available to the property."
The Court in Beck did not have before it the issue of the propriety of this language, since no objection was made to that portion or aspect of the instruction. Justice Prentice, in concurring, pointed out why the majority opinion should not be interpreted as a judicial indorsement of the instruction. The coupling of this phrase as an apparently additional requirement to the necessity of establishing special injury is both confusing and misleading to the jury. It is certainly true that whether the landowner is left with reasonable access to his realty bears greatly on whether he had indeed suffered special injury. However, it must be borne in mind that his damage entitlement is to be based upon the highest and best use of the property at the time of the taking. Thus, if the highest and best use before the taking was for residential or commercial purposes, and because of the access available after the taking, the property was no longer suitable for that use, but was still suitable for a less valuable use, the owner would be entitled to the damages reflecting the diminished value.
Where the issues in the case include a dispute as to the highest and best use or diminished value for that use, the concept that there is no compensable injury unless "no other reasonable means of access is available," to be correct, must contemplate reasonableness in terms of the highest and best use of the property immediately prior to the take. As Justice Prentice pointed out, where, as here, that relationship is not made clear, the instruction tends to mislead and confuse the jury into the belief that it should award no damages if there remains a reasonable means of securing ingress and egress for any purpose. Such a construction would deny the landowner damages to which he might be properly entitled.
It is well established that for the court to commit reversible error in refusing to give an instruction, the instruction must do more than embody an idea. It must correctly present the law to the jury. Mosier v. Stoll (1889), 119 Ind. 244, 20 N.E. 752; Indianapolis Transit System, Inc. v. Williams (1971), 148 Ind.App. 649, 269 N.E.2d 543.
Since the state's instruction # 1 was confusing, misleading and prejudicial as tendered, the court committed no error in refusing to give it to the jury.
The judgment should be affirmed.