Opinion
No. 26,256.
Filed November 26, 1935.
1. EMINENT DOMAIN — Proceedings — Process or Notice — Waiver of Defects by Appearance. — Where defendants in condemnation proceeding appeared and filed objections, without appearing specially or moving to quash service, they waived any defects in the service of process or notice. p. 242.
2. PROCESS — Defects — Waiver by General Appearance. — Process cannot be attacked by demurrer and a general appearance waives defects and irregularities therein. p. 242.
3. EMINENT DOMAIN — Delegation of Power — To Private Corporation — Necessity to Show Right for Specific Purpose. — Private corporation claiming the right of eminent domain must show statutory power delegated to it by grant sufficiently broad to cover the specific purpose for which it is sought to be exercised. p. 243.
4. EMINENT DOMAIN — Water Supply — Generally. — Private water company has power to acquire its water supply by condemnation. p. 243.
5. EMINENT DOMAIN — Proceedings — Conditions Precedent — Franchise or Other Authority to Operate. — A franchise from the city which a water company contemplates serving, or a finding of convenience and necessity by the Public Service Commission, held not essential to water company's right to condemn land to carry out its corporate purposes. p. 244.
6. EMINENT DOMAIN — Water Supply — Subterranean Waters. — A water company has the same right to condemn land to secure the underlying waters through the means of wells as a source of water supply as it has to take surface water. p. 244.
7. EMINENT DOMAIN — Proceedings — Defenses and Objections — Uncertainty as to Value of Property Taken. — Where a water company sought by condemnation to secure a subterranean water supply, the fact that the amount of underlying water and the value thereof could not be readily determined was held no cause for denying the right to condemn, but to present a fact question to be determined upon the report of appraisers. p. 244.
8. EMINENT DOMAIN — Proceedings — Pleading — Objections. — Objections to the complaint or petition for condemnation, contemplated by statute, may serve the purpose of a demurrer, or an answer, or both. p. 244.
9. EMINENT DOMAIN — Proceedings — Hearing on Objections — Evidence. — If issues of fact are raised by objections in condemnation proceedings, the objectors may introduce evidence to support the allegations of their objections. p. 244.
10. EMINENT DOMAIN — Proceedings — Hearing on Objections — Evidence. — Objectors' complaint that they were given no opportunity to offer evidence in support of their objections was unavailing where no offer to introduce evidence was made and no material issue of fact was raised by the objections. p. 244.
11. EMINENT DOMAIN — Proceedings — Right to Institute Proceedings — Effect of Prior Lease of Water Plant to Town. — The fact that a private water company had leased its plant to the town to be served and that the town contemplated operating the water company did not destroy the company's right to condemn a water supply in its own name. p. 245.
12. EMINENT DOMAIN — Proceedings — Conditions Precedent — Authority to Lay Water Mains in Public Highway. — Where a water company sought to condemn land to secure a water supply, use of which would require laying of pipes in public highways, it was not essential to the right to condemn to show that a right of way over the highways for the laying of pipes had first been obtained. p. 245.
From Ripley Circuit Court; Frank Gardner, Judge.
Action by the Milan Water Company, Incorporated, against William Reuter and others for the condemnation of land to secure a water supply. From an order appointing appraisers, defendants appealed. Affirmed.
Wycoff Wycoff, for appellants.
Sam A. Connelly, for appellee.
The appellee, by its complaint, alleged that it is a corporation organized under the laws of this state for the purpose of constructing, erecting, and maintaining a waterworks system for the town of Milan, and for the purpose of supplying the town, its inhabitants, and communities adjacent thereto with water for domestic use and other purposes; that the defendants (appellants) are the owners of certain described real estate; that in order to enable the plaintiff to furnish a sufficient and adequate supply of water it is necessary that it acquire and appropriate defendants' described real estate for the production of water to be pumped from wells to be constructed thereon; that it has been unable to agree with the owners of said land for its purchase. Judgment was asked accordingly. Appellants appeared to the action and filed eighteen numbered objections. The objections were overruled. The court found that the allegations of the complaint were true. There was an interlocutory judgment appointing appraisers, from which this appeal is taken.
Error is predicated upon the overruling of all of appellants' objections except numbers 1, 7, and 12. The second objection is, "that the court has no jurisdiction of the person of the 1, 2. defendants or either of them." In support of their contention that it was error to overrule this objection, appellants contend that the summons served upon them was not sufficient under the statute. The record discloses that appellants appeared to the action and filed their objections, which are directed to the complaint and serve the purpose of a demurrer, an answer, or both. There was no motion to quash the service and no special appearance. The sufficiency of the process cannot be questioned by demurrer, and a general appearance waives any irregularity in service.
Appellants correctly contend that the right of eminent domain is inherent in the state, and that a private corporation claiming the right must point to some statute by which the power 3, 4. is delegated to it, and that the grant of power must be sufficiently broad to cover the specific purpose for which the property in question is sought to be appropriated. They assume that the appellee's right to condemn is controlled by sections 5573-5582, Burns 1926, and insist that the right to condemn a water supply is not granted by those sections. This view does not take into consideration chapter 218, Acts of 1929, page 800, section 1 of which provides: "That any corporation organized under the law of the State of Indiana, authorized by its articles of incorporation to furnish, supply, transmit, transport or distribute . . . water . . . to the public or to any town or city, . . . is hereby authorized and empowered to take, acquire, condemn and appropriate land, real estate or any interest therein, for carrying out such purposes and objects . . ."
Section 4897, Burns 1926, authorizes the organization of corporations to promote, finance, construct, equip, rent, own, and operate waterworks. It is claimed by appellee that it was organized under the statute last referred to, and this contention is not seriously controverted.
The act of 1929 above referred to expressly authorizes the condemnation of land for carrying out the purposes and objects for which the corporation was organized, and a 5. franchise from a city which it contemplates serving, or a finding of necessity or convenience by the Public Service Commission, is not essential to its exercising the right. Lowe et al. v. Indiana, etc., Power Co. (1926), 197 Ind. 430, 151 N.E. 220.
It is also contended that there is a distinction between condemning land for the purpose of procuring the use of a supply of water in a surface lake or reservoir, or stream running 6. upon the surface, upon the one hand, and for the use of a supply of water in a subterranean body or stream, upon the other. No authority is cited to sustain the contention, and we can see no distinction.
Appellants assert that there is no basis for determining the amount of water that will be taken, and therefore the appraisers will have no basis for fixing a value. But this is a 7. question of fact which must be determined upon the report of the appraisers.
The objections contemplated by the statute may answer the purpose of a demurrer, or an answer, or both, and, if issues of fact are raised, the objectors may introduce evidence to 8-10. support the allegations of their objections. Appellants complain that they were given no opportunity to introduce evidence in support of their objections. But it does not appear that they offered to introduce evidence. However, no material issue of fact was raised by any of the objections.
It is alleged in the eighth objection that the use for which plaintiff seeks to condemn defendants' land is a private use. This merely negatives an allegation of the complaint to the effect that the water underlying appellants' land is necessary as a source of supply for furnishing water to the town of Milan and the communities adjacent thereto, and the allegations of the complaint were found to be true.
It is also alleged that the plaintiff has already leased its proposed waterworks to the town of Milan, to be operated 11. by the town. We cannot see how this is material, even if admitted.
It is alleged that, in order to pipe water from the lands sought to be condemned, it will be necessary for plaintiff to lay its pipes upon and along the public highway, and that it 12. is not shown in plaintiff's petition that it had acquired the right of way over and along the public highway. But we cannot see that this is material to the issue. Neither is the fact that plaintiff has not obtained a franchise from the town.
It is also contended that there may be other water supplies equally available. The complaint alleges that in order to enable plaintiff to produce a sufficient and adequate supply of water it is necessary that plaintiff acquire and appropriate the real estate of the defendants. The allegations of the complaint were found to be true.
Judgment affirmed.