¶1Concurring Opinion
¶2It occurs to me that an additional statement in support of the decision of the court herein is appropriate for the purpose of clarifying what, in my opinion, is the applicable law where there is a taking of a business property or of the access thereto.
¶3As stated in my concurring opinion in the case of Elson v. City of Indianapolis (March 9,1965), 204 N. E. 2d 857, 863, in a condemnation proceeding, it seems appropriate that evidence may be admitted as to the volume of business conducted on the premises involved, for the sole purpose of establishing the suitability, and therefore the value of the property for the purpose for which it is used. Similarly, as this court held, the rental received for a business property may properly be considered in determining the value of the property appropriated. Hagemann et al. v. City of Mount Vernon et al. (1958), 238 Ind. 613, 154 N. E. 2d 33.
¶4However, in a condemnation proceeding, the business operated on the property appropriated is not taken but remains the property of the condemnee, and the profits realized from such a business operation are subject to many intangibles, such as the personality and business ability of the proprietor thereof, which can in many in*485stances be profitably employed in another location. Therefore, although loss of business may be considered as it is related to the character, and therefore the value of the land appropriated, the loss of profits from a business operated thereon may not be considered as an element of damages. This is true because, first, as noted above, loss of profits, which necessarily includes the elements of good will and the business ability of the proprietor of the particular business, is too speculative to be considered as a significant factor in determining the value of the property appropriated. Hagemann et al. v. City of Mount Vernon et al., supra. And secondly because, as noted in my concurring opinion in the Elsoncase, supra, the statute was not intended to authorize the payment of such damages.
¶5For these reasons, I am of the opinion that the second paragraph of appellee’s instructions number 1 and appellee’s instruction number 2 were erroneous and that the giving of such instructions constituted reversible error.
¶6Note. — Reported in 206 N. E. 2d 874.
¶7. This court may have been mislead as to the proper construction of §3-1706, Burns’ 1946 Replacement in State v. Stabb (1948), 226 Ind. 319, 79 N. E. 2d 392, because the briefs gave little attention either to the historical background of the pertinent provision of the statute or to the almost universal construction placed thereon in other jurisdictions.