Appeal from the District Court of the United States for the Southern District of Indiana, Indianapolis Division; Robert C. Baltzell, Judge.
Before EVANS and SPARKS, Circuit Judges, and FITZHENRY, District Judge.
FITZHENRY, District Judge.
Appellant Howard sued appellee, Illinois Central Railroad Company, for damages alleged to have been by him suffered through the institution and dismissal of a condemnation suit in the Marion county superior court of the state of Indiana.
In April, 1916, the railroad filed a complaint to condemn certain real estate belonging to Howard, to be used by it in elevating its tracks in the city of Indianapolis.
The complaint in the instant suit recites that in the condemnation suit Howard was awarded a verdict for $9,000 damages, and judgment was entered thereon. From this judgment the railroad appealed to the Supreme Court of Indiana, where the judgment was reversed and the cause remanded. 196 Ind. 323, 147 N.E. 142, 148 N.E. 413. While the action was awaiting a second trial the railroad dismissed its complaint therein; that as a result of the alleged acts Howard was deprived of the possession and the free and unrestricted use of the real estate in question during all of the period from April, 1916, to January 13, 1926; that by reason of the dismissal of the suit plaintiff was damaged because he was forced to employ attorneys to represent him in the above-entitled cause, for witnesses, court costs, and other necessary expenses, aggregating several thousand dollars; that he was deprived from expanding his business upon said premises; that he was required because of the condemnation suit to purchase other property, that he might have a place to remove his business; and that by reason of the litigation and a final dismissal of the suit by the railroad, he suffered other substantial damages.
After certain preliminary pleading, not of importance here, the railroad filed its demurrer to Howard's amended complaint, which demurrer was sustained. Howard stood by his amended complaint; whereupon judgment was entered in favor of appellee.
Error is assigned because, it is contended, the complaint did state facts sufficient to constitute a cause of action against appellee, in that the complaint alleged that appellant was damaged by the acts of the appellee in taking appellant's property for a public use without compensation, for which appellant is given a right to an action for damages under the laws of Indiana and the United States.
The case turns upon the question, as to whether a condemnation proceeding, under the statute of Indiana, may be discontinued by the condemner before taking possession and before final judgment without liability for damage accruing.
Appellant's complaint shows that appellee lawfully commenced suit to condemn certain real estate owned by appellant. The statute of Indiana under which the proceeding was instituted provides that any defendant in a case of that character may object to such proceeding on the ground that the court has no jurisdiction either of the subject-matter or the person, or that plaintiff has no right to exercise the power of eminent domain for the use sought, or for any other reason disclosed in the complaint, or set up in such objections. The statute requires such objections to be in writing, and provides: "But if such objections are overruled, the court or judge shall appoint appraisers as provided for in this act; and from such interlocutory order overruling such objections and appointing appraisers, such defendants, or any of them, may appeal to the Supreme or Appellate Court from such decision as and in the manner that appeals are taken from final judgments. * * *" Section 7684, Burns' Ann. St. Ind. 1926.
In the condemnation case upon which this action is predicated, the objections were overruled and Howard appealed, which stayed the proceeding in the trial court. The judgment was affirmed and the cause remanded. Howard v. Illinois Central R.R. Co., 186 Ind. 88, 115 N.E. 50. The second trial resulted in a verdict for Howard for $9,000. The railroad then appealed to the Supreme Court of Indiana. The judgment was reversed and the cause remanded. Illinois Central R.R. Co. v. Howard, 196 Ind. 323, 147 N.E. 142, 148 N.E. 413. While it was pending on the dockets of the trial court, the railroad concluded to discontinue the cause. At the time of the dismissal of the condemnation suit there was no final judgment and no possession taken of appellant's property.
It is clear that under the general law which obtains in all jurisdictions, except where changed by local statute, there could be no recovery for any incidental damages which may have accrued by reason of the dismissal of the suit by the railroad.
The case of Kanakanui v. United States, 244 F. 923, 926, was before the Circuit Court of Appeals of the Ninth Circuit, and the exact question here involved was under discussion. The court said: "If, as an incident to the right which the United States properly exercised to condemn property to a public use in a proceeding which was subsequently abandoned, the defendants were required to incur expenses, or were incidentally injured, it was a case of damnum absque injuria, and comes within -- 'the universally recognized principle of law which exempts from liability for loss or damage incidentally resulting from the proper exercise of a legal right.'"
In discussing a similar case, the Supreme Court of Minnesota used some language especially applicable to the instant case in Bergman v. St. Paul Ry. Co., 21 Minn. 533: "If the plaintiff is entitled to recover, it must be by virtue of some contract, express or implied, or of some positive rule of law conferring upon him a right of action, or upon the ground that defendant has been guilty of a tort. Certainly there is no contract here, nor is there any positive rule of law upon which plaintiff can base a right ...