dissenting.
It is my opinion that the court should declare that the right to a change of venue from the county in eminent domain proceedings cannot be exercised until the issue of damages has been formed by the filing of exceptions to the report of appraisers. This is the express holding of Matlock v. Bloomington Water Co. (1925), 196 Ind. 271, 146 N.E. 852. It is predicated upon the proposition that the right of the landowner to resist an alleged unlawful seizure of private property by government through an exercise of the power of eminent domain is restricted by statute to a summary proceeding in which "the territorial location of the court can make no possible difference, until the point is reached of trying the question of damages." Matlock at p. 275, 146 N.E. 852. State ex rel Chambers v. Jefferson Circuit Court (1974), 262 Ind. 337, 816 N.E.2d 353 followed by the majority opinion, is a change of judge case, and does not hold as declared by the majority that there is a right to a change of venue from the county in the summary proceeding of an eminent domain action, however, even if it did, through its recognition of the applicability of Ind.R.Tr.P. 76(8), we should now, in light of the detailed consideration of the precise issue, overrule any such implicit holding.
The serious impingement which the majority policy inflicts without good cause upon the rights of the parties in eminent domain cases is obvious. It will delay the right of entry of the government, and it will render the right of the landowner to resist more costly. It will obstruct the assessment of damages by court-appointed appraisers and render them more costly. These are real costs, and they far outweigh any need to reduce the potential for "confusion".
This court has repeatedly sanctioned restrictions upon the right to change of venue from the county that it would not approve for the right to change of venue from the judge, and for good reason. There is for example no right to a change of venue from the county at all in the Marion Municipal Courts where cases of substantial nature are tried. Our own rule governing post-conviction remedies provides for a change of venue from the judge while denying the right to change of venue from the county. In this case, we should permit the balance struck by the legislature in the eminent domain statute between the citizen landowner and the government which arises from its declaration that early proceedings be summary and then followed by the assessment of damages by court-appointed appraisers, to override our desire for uniformity in application of the change of venue rule.