If you're wondering what to do if, during the course of an eminent domain lawsuit or project, a condemnor (or anyone else with the power of eminent domain) invades, occupies, or affects more property than it acknowledges, check out the Indiana Court of Appeals' opinion in Lake County v. House, No. 20A-PL-1675 (Apr. 14, 2021).
Short story: a part of a larger project, the county brought an eminent domain action seeking a partial take of the owners' property, and offered to pay compensation and relocate a septic system that would be affected to somewhere else on the property. The owners claimed that because they could not relocate the septic system anywhere on property, the court should treat this as a total take of entire property. The trial court agreed.
So the county made new plans, which (it argued) avoided taking any of the owners' property, and would therefore not affect the septic. It dismissed the condemnation lawsuit w/o prejudice, the court ordered it to pay the owners' attorneys fees, and the court entered final judgment.
But the story had not ended. The owners sought to prohibit the county from proceeding with its new plans because, they argued, the “new” plans were not really new, but like the earlier plan, impacted their property. The trial court agreed, and "reopened" the dismissed eminent domain action, and ruled for the owners.
The court of appeals reversed, concluding that the way the owners to raise this claim was not to reopen the closed eminent domain action, but for them to bring an inverse condemnation lawsuit. There's an Indiana statute recognizing property owners' right to bring inverse claims when a condemning agency acquires property without using the eminent domain process. The statute provides that a:
person having an interest in property that has been or may be acquired for a public use without the procedures of this article or any prior law followed is entitled to have the person’s damages assessed under this article substantially in the manner provided in this article.
Indiana Code § 32-24-1-16.
The court of appeals appreciated the trial judge's concern that as a result of this ruling, condemnors could "do what they do" and effectively shift the burden to property owners to show a taking. But ultimately, the court shrugged its shoulders and concluded the legislature has determined the remedy:
At the August 6, 2019, hearing on all pending matters, the trial court expressed concern about accepting the County’s argument that the Houses’ were required to initiate an inverse condemnation proceeding rather than pursue their claims through the reopened condemnation case because it would set a precedent that the County could simply dismiss the case where it had an unfavorable ruling, “do what they want to do,” and then shift the burden to the property owner to prove a taking. (Tr. p. 84). The trial court also expressed a desire to conserve taxpayer and judicial resources. Although we appreciate the concerns of the trial court, we observe that eminent domain proceedings are statutory in nature, and where the statute fixes a definite procedure, it must be followed. Lehnen v. State, 693 N.E.2d 580, 582 (Ind. Ct. App. 1998), trans. denied. The legislature has fixed a procedure for property owners such as the Houses to pursue a claim of a taking, and we are not at liberty to dictate another result. Id.
Slip op. at 16.
Lake County v. House, No. 20A-PL-1675 (Ind. Ct. App. Apr. 14, 2021)
