Indiana § 8-4-10-1 - Authority to construct and operate; eminent domain

§ 8-4-10-1. Authority to construct and operate; eminent domain

Sec. 1. (a) The owner or owners or their lessees of lands, mills, blast-furnaces, quarries, iron ore, coal mines, or other minerals, or other real estate or any company of persons who desire to construct a lateral railroad, not exceeding ten (10) miles in length, may locate and construct the lateral railroad to any other railroad, canal, or slack-water navigation on, over, through, or under any intervening lands. The engineers, agents, artists, and assistants of the owner or owners or their lessees may enter upon any intervening lands, doing no unnecessary damage, and survey, mark, and lay out a route for the proposed lateral railroad.

(b) A person described in subsection (a) may present a petition to the circuit court, superior court, or probate court of the county in which the intervening lands are situated that sets forth the beginning, course, distance, and termination of the proposed lateral railroad, together with a map or profile of the route, indicating the excavations and embankments on the route, and designating, particularly, the name or names of the owner, owners, occupant or occupants, and agent or agents of such intervening lands, with a particular description of the same. The petition must be filed in the court.

(c) After the petition is filed, the court shall appoint:

(1) one (1) disinterested freeholder of the county; and

(2) two (2) disinterested appraisers licensed under IC 25-34.1;

who are residents of Indiana as viewers. One (1) of the appraisers appointed under subdivision (2) must reside not more than fifty (50) miles from the land.

(d) After five (5) days notice, to be given by the applicant to each of the owners, occupants, or agents of the intervening lands, of the time and place, and after being duly sworn to discharge their duties fairly and honorably as viewers, the viewers shall view the proposed route as marked and laid out for the railroad. The viewers or a majority of the viewers shall assess the damages, if any, that may be sustained by the owners, separately, of the intervening lands by reason of the location, construction, and use of the proposed lateral railroad, and report the assessment in writing to the clerk of the court immediately after the assessments are made. The report shall be filed in the office of the clerk of the court.

(e) If a party does not reject the report within twenty (20) days after the filing of the report, by writing on the report "not accepted" and signing the report, the report shall be confirmed by the court. If any party rejects the report, the report shall stand for trial.

(f) At trial, the general denial to the petition and report shall be taken as filed, and all matters of defense and reply may be given in evidence under the general denial. The party rejecting the report has the affirmative of the issues. The viewers or jury trying the cause shall, in assessing damages, take into consideration the advantages that may be derived by the owner or owners of the lands passed on, over, through, or under by the proposed lateral road by its location and construction.

(g) Upon the filing of the report by the viewers in the court, the damages assessed by the viewers shall be paid to the clerk, to be tendered to the party in whose favor the damages are awarded or assessed.

(h) After payment or tender is made under this section, the person, persons, or company of persons, and their lessees described in subsection (a), may hold and take possession of the interests in the intervening lands or materials appropriated, and the privileges of using any materials on the roadway within fifty (50) feet on each side of the center of the roadway for the use described in subsection (a).

(i) The costs of the assessments by the viewers and the costs in case of trial shall be paid as in other cases.

Formerly: Acts 1869(ss), c.46, s.1. As amended by P.L.1-1990, SEC.118; P.L.113-2006, SEC.4; P.L.84-2016, SEC.38.