Sec. 16. (a) A railroad is authorized to enter upon any land for the purpose of examining and surveying its railroad line. A rail carrier may appropriate as much land as is deemed necessary for its railroad, including necessary side-tracks and water stations, materials for constructing, except timber, a right-of-way over adjacent lands sufficient to enable the company to construct and repair its road, and a right to conduct water by aqueducts, and the right of making proper drains.

     (b) The rail carrier shall deposit with the clerk of the circuit court of the county where the land lies, a description of the rights and interests intended to be appropriated. The land, rights, and interests shall belong to the rail carrier, to use for the purpose specified, by making or tendering payment as provided in this section.

     (c) The rail carrier may, by its directors, purchase lands, materials, rights-of-way, or interests of the owner of the land, or, in case the land is owned by a mentally incompetent person or a person under eighteen (18) years of age, at a price to be agreed upon by the guardian or parent of the mentally incompetent person or person under eighteen (18) years of age, if the land, material, right-of-way, or interest is appraised by the court in which the description is filed. Upon agreement and approval, the owner, guardian, or parent, as the case may be, shall convey the premises purchased, in fee simple or otherwise, as the parties may agree, to the rail carrier. The deed, when made, shall be valid in law.

     (d) If the rail carrier does not agree with the owner of the land, or with the owner’s guardian, if the owner is incapable of contracting, concerning the damages sustained by the appropriation, the rail carrier shall deliver to the owner or guardian, if within the county, a copy of the instrument of appropriation. If the owner or the owner’s guardian, in case the owner is incapable of contracting, is unknown or does not reside within the county, the rail carrier shall publish, in a newspaper of general circulation in the county, for three (3) weeks, an advertisement, concerning the substance of the instrument of appropriation.

     (e) Upon filing an act of appropriation and delivery of a copy, or making the publication, the circuit court in the county where the land lies, upon the application of either party, shall appoint, by warrant:

(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 to appraise the damages which the owner of the land may sustain by the appropriation. One (1) of the appraisers appointed under subdivision (2) must reside not more than fifty (50) miles from the land. The appraisers shall be duly sworn. They shall consider the injury that the owner may sustain by reason of the rail carrier. The appraisers shall return their assessment of damages to the clerk of the court, setting forth the value of the property taken or injury to the property which they assess to the owner, or owners separately, to be filed and recorded by the clerk. The rail carrier shall pay to the clerk the amount thus assessed, or tender the amount to the party in whose favor the damages are awarded or assessed.

     (f) On making payment or tender in the manner required, it is lawful for the rail carrier to hold the interests in the lands or materials appropriated, and to use the materials on the roadway and within fifty (50) feet on each side of the center of the roadway. The cost of the award shall be paid by the rail carrier. On notice by any interested party, the court may order payment and enforce the payment by execution.

     (g) The award of the arbitrators may be reviewed by the court in which proceedings may be had, on written exceptions filed by either party in the clerk’s office within twenty (20) days after the filing of the award. Notice of filing of the arbitrators’ award shall be given by the clerk of the court to all known parties to the action and their attorneys of record by certified mail. The period of exceptions shall run from and after the date of mailing. The court shall make an order as right and justice may require by ordering a new appraisement on good cause shown.

     (h) Notwithstanding an appeal, the rail carrier may take possession of the property described in the exceptions, and the subsequent proceedings on the appeal only affect the amount of compensation to be allowed. If, prior to the assessment, the rail carrier shall tender to the owner (or the owner’s guardian, if the owner is unable to contract) an amount equal to the award that was made, exclusive of costs, the costs of arbitration shall be paid equally by the rail carrier and the owner or guardian.

Formerly: Acts 1852, 1RS, c.83, s.15; Acts 1973, P.L.22, SEC.4; Acts 1973, P.L.23, SEC.3. As amended by P.L.33-1989, SEC.7; P.L.113-2006, SEC.3; P.L.146-2017, SEC.7.