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

Ceedlng, but IN such event II
sion law, Acts 1913, page 167, etc, is
stated as follows:
ANY municipality shall have the
power, subject to the provisions of
this act, to acquire by condemnation
the property Of any public utility
etc. This is the power which the city
is now exercising.
Another provision of this act is as
follows:
ANY municipality shall have the
power, subject to the provisions OF
this act, to purchase by an agreement
with any public utility any part OF any
plant, provided that such purchase
and the terms thereof shall be approx
ed by the commission after a nearing
as provided in this act
1t seems to me that those who re-
gard that the city has already pur-
chased, must be considering this part
of the statute. 1t no doubt would be
true that if the city and this utility
were to enter into contract con-
tanning definite terms and conditions,
which of course would include the
price to be paid, and then submit the
same to the commission for approval,
that such contract would become
binding on both parties when the COM
mission approved the same. But we
are not proceeding in this manner,
and therefore this provision can not
apply. We are seeking to condemn
exercising the power OF eminent 90
MAN," as delegated to the city by the
sovereign power of the state, and our
rights, duties and liabilities must be
measured by the statutory provisions
applicable to this method of procedure
That the city has the absolute and
unqualified right to abandon the pro-
ceeding which it instituted herein, l
haven't the slightest doubt, and this
opinion is supported by an unbroken
line of numerous authorities, both in
text books and by supreme courts
Will any one contend, who is at all
familiar with the subject, that the city
would not have the right at this stage
of the proceeding if it were seeking
to condemn land for street, sewer or
other lawful purposes, to abandon
such proceedin? Surely not What
is there, then, in this particular pro-
ceeding which places 1t entirely out
side of the universal rule in all SINH
lar condemnation proceedings? A rail-
road company or other corporation
invested with the power Of eminent DO
main under the laws Of this state
has such right. and what reason. there
fore, can be given to deny such rlght
to a city?
The provisions Of our statute con-
fer upon counties the right to acquire
real property by condemnation tor GER
tain purposes, but under we'll recog-
nized authorities the county may aban-
don such proceeding after the price
is judicially determined, and II so IL
will not become liable to pay to the
owner of such property the value
thereof If, however, the county con-
summaries the transaction. it must
pay the price before it gets title
These same propositions are equally
applicable to the state. Although the
provisions of these statutes are not eN-
actly like the one now under consld-
Grafton, yet the method OF procedure
is somewhat analogous.
The supreme court of Kentucky IN
considering this question says:
THE weight of authority undoubt-
edlv is that in the absence OF statutory
provision. the effect of provisions TOT
condemnation is simply to fix a price
at which the party cordemnlns can
take the property, and that even a1'er
condemnation or judgment the pur-
pose for taking the property may De
abandoned without mourning any H.
ability to pay the damages awarded
Such is the correct rule on the SUD
iect and to adjudge otherwise would
require such applicant, whether prl-
nicipality, to submit to the imposition
of exorbitant values upon property
condemned for public use, and to often
take possession of or purchase that
which might be detrimental instead or
beneficial to the public interests,
Whether the power is exercised by the
government or by a corporation, to
whom that power is delegated, the
same rule should apply. The right is
given for the reason that the public
good demands the use Of the property
and the rule applicable to the state
should apply to the corporation.
The same court in later case at
some length approved this former de-
cision.
The supreme court or Iowa III con
sidering this question says:
he plUCSCuluSo tiAoSi 'AAS
for the condemnation OF lands to the
use of railroad simply fixes the
price at which upon actual payment
the company may take the right OF
wav. The judgment assessing the
amount of the damages passes no title
to the company before payment, and
does not bind to accept the lands and
nav the amount assessed"
The supreme court of Illinois in dis
cussing this question says:
Where the company has not appro'
priated the land at the time of the
trial it would be improper to render
Judgment for the recovery of the
money or to award execution because
it can not be known that the company
will not enter upon the land. 1t is
under the statute the payment of the
money found by the jury and not the
order of the court alone that confers
the right. Although petition has been
filed and damages assessed and the
order of the court pronounced and en-
tered, the money must be paid before
the right to enter attaches, and until
they pay the damages they have the
right to abandon the location OF the
route thus made and adopt some
other"