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State Highway Commission v. Dey

Decided: January 31, 1933.

STATE HIGHWAY COMMISSION, APPELLANT,
v.
EDGAR G. DEY, RESPONDENT



On appeal from a judgment of the Mercer County Circuit Court.

For the appellant, William A. Stevens, attorney-general, Edwin G. Scovel and Walter H. Bacon, Jr.

For the respondent, Philip M. Chamberlin.

Donges

The opinion of the court was delivered by

DONGES, J. The state highway commission constructed a road in Hamilton township, in Mercer county, across a farm of Amos M. Dey and Lillie B. Dey. The farm was encumbered by a first mortgage of $12,000, held by a Federal Land Bank, and a second mortgage of $6,000, held by Edgar G. Dey, the respondent herein. The commission received a deed of the fee from Amos M. Dey and Lillie B. Dey, in consideration of the payment of $1. It purchased for $1 a release of the lands so conveyed from the first mortgage held by the Federal Land Bank. The second mortgagee refused to release the lands from the operation of his mortgage, whereupon the commission instituted proceedings to condemn the strip of land under the provisions of the Eminent Domain act.

Commissioners were appointed, who viewed the land, received testimony and made a report fixing the value of the

land at $1,350. Appeal was taken to the Mercer County Circuit Court. Upon stipulation it was heard by Circuit Judge Oliphant without a jury. He fixed the value of the land at $1,350, and ordered judgment to be entered.

The highway commission appeals and writes down five grounds of appeal.

The first and second grounds of appeal are argued together and seek to present that the testimony did not support the conclusion of the trial court that the value of the land taken and damage by reason of the taking of $1,350.

The appellant argues that the value found is without support in the testimony, but an examination of the testimony discloses that all witnesses, both for the commission and the respondent, substantially agreed as to the value of the land. There was some disagreement between the witnesses as to consequential damage. We conclude that there being testimony to support the finding of the trial judge, such finding will not be disturbed.

The third, fourth and fifth grounds of appeal seek to raise the question that the trial court should have determined the value of the interest of Edgar G. Dey as mortgagee, instead of fixing the ...


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