The Richmond palladium and sun-telegram. [volume] (Richmond, Ind.) 1907-1939, 1915-05-22

price fixed. man Of prudence re-
linquishes a project when he finds the
costs is likely to exceed in large
measure the benefits; it would seem
intolerably unreasonable to require
the agent of the public to pursue the
opposite course"
The supreme court Of New Jersey,
in considering this question, says:
The public authorities in the alb
sence of any statutory provision to the
contrary have reasonable time given
them after the ascertainment of the
expense of the scheme to decide
whether to accept or refuse the land
at the price fixed. On every account
that rule commends itself to my judg
ment. With respect to the land owner
the procedure is fair and just: it calls
for reasonable valuation of his land
and if the public reject it at the esti-
nation, he suffers in general no detri
ment; and if in any exceptional case
an injury is done to him, he is entitled
to reparation. On the other side the
rule in question is necessity in view
of the rational conduct of public af-
fairs. The question whether public
improvement is wise or unwise, eXpe-
dent or inexpedient, can not be an
swered by any one who is ignorant
of the expense that it involves, and
therefore to require public agents in
handling these matters to disregard
this plan would be altogether absurd.
In constituting any statute au-
thorizing one of these undertakings
every reasonable intendment should
be against reading it in sense that
would put the public in this false po-
sition. The legal effect ofs such acts
should be held to be that they COM
pei the land owner to offer the public
the required land at the ascertained
price and that when the price has
been finally ascertained the public has
a reasonable time within which to
make an election either to accept or
reject the offer. The doc
trine as settled has the great prepon-
derance of judicial opinion in its favor,
and it should not be disturbed or call
ed in question:
The American and English Encyclo-
pRda of Law, in considering this
question, says:
I'm the majority of states the rule
is that the taking is not completed
until there has been payment or Sc
curity Of compensation, or until the
| condemning party has entered into
possession of the land. At any time
before this the company may abandon
the proceedings and no payment of
compensation will be necessary"
/ The supreme court of California. in
|. discussing this question, uses this Ian
guage:
1T is a mistake to suppose that any
title comes from mere appropriation
of another's property or from the TAX
ing of the legal proceeding to con
denim it. The right to take
under the terms adjudicated accrues
from the legal proceeding-the petit
! tion-the report-the confirmation
then the price becomes fixed. But no
right to entry-much less Of title-ac-
crues so far. The petitioner condemn
| ing, the representative of state. is
| then in condition to be purchaser;
the other party is in a situation OF
vender making an agreement of sale
on condemnation precedant but retain
| ing his title and possession until pay
ment The report and as
sessment of the commissioners are
only effectual to fix price for the
property for the purpose of enabling
| the company to take it at that price
! at the time or within a short period
after the assessment and the confirm
alton of the report To entitle the
company to take the property they
| must avail themselves OF the priv
! leges within a proper time. A lapse
of reasonable time without availing
, themselves of the privilege was itself
an abandonment of all claim to it
The supreme court of Kansas, in
| discussing this question, says:
After the Judgment is rendered in
! case of this kind. then the railroad
company may take the land or not at
it's option. But until it pays for the
! land it gets no title.
The court of appeals Of the District
| of Columbia, in considering similar
question. says:
THE proceeding to condemn prop
| erty for public use is not in the ma
ture of a contract between the owner
and the condemning party. and, until
the property is actually taken and
compensation made or provided, the
power Of the condemnins party is not
exhausted Accordingly, it is rule
of almost universal application that in
the absence of any statutory provl-
sion showing a legislative intent to
the contrary, condemnation proceed
ings may be discontinued by the con-
! 0omQlQS party dl dNS tllut DSloi liiC
right of the property has become COM
pleted."
The Cyclopedia of Law and Proceed
ure on this question says:
The proceeding may be abandoned
even after the damages are assessed
and a reasonble time should be given,
after the price of the land is fixed, for
the petitioner to reject the award and
abandon the proceeding"
t Dillon on Municipal Corporations
which is a text book of high authority,
in discussing this question, says:
Until the assessments for damages
have been made, the amount cannot be
known; and on the whole it is season
able that after having ascertained the
expense of the project the corporation
should have discretion to go on with
it or not as it sees fit, it being liable
in proper cases in damages for any
wrongful acts injurious to the owner.
In support of this proposition the
author cites many authorities from
elmost every state in the union, and
among them cases from this state.
Lewis on Eminent Domain, which
is we'll recognized authority, in con-