ILNews

Judges rule on New Albany land case

Michael W. Hoskins
January 1, 2007
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Debate over land once earmarked for the 1960s expansion of Interstate 64 through New Albany has gone to the Indiana Court of Appeals, which ruled today in that case.

The three-judge panel ruled in Donald Jensen, et al. v. The City of New Albany, et al., holding that a reversionary clause in a 1960 deed was unenforceable after land was transferred to the state more than four decades ago.

Land in question was 5.82 acres known as the Fawcett property, which the original owner had left in a 1935 warranty deed to the city of New Albany for use as a municipal park and golf course. When the state began preparing to construct part of I-64 through the city, it purchased the course and Fawcett property. However, a large amount was not used and through the years was used for various recreational purposes. The state eventually executed a quitclaim deed in 2004 returning the unused I-64 land to Floyd Memorial Hospital and Community Housing Development Organization, which wanted to build houses on the property.

Appellants - six couples describing themselves as residents and park users, and some relatives of the original land owner - filed a complaint, noting the 1935 deed and reversionary clause, claiming that if the land wasn't used for its intended purpose (the park or ensuing interstate project), it would revert to the rightful heirs. The trial court denied the defendants' request for summary judgment, but it also denied appellants' request for declaratory judgment and an injunction.

In its opinion, the Court of Appeals wrote that the 1935 deed was extinguished upon the 1960 deed's execution. The decision is controlled by an Indiana Supreme Court decision - Dible v. City of Lafayette, 713 N.E.2d 269 (Ind. 1999) - which said that neither a restrictive covenant nor reversionary clause is "enforceable against an entity with the power of eminent domain."

"Appellants apparently believe that the rule in Dible is limited to those situations in which a condemning authority has actually exercised its power of eminent domain," the court wrote. "This is not the case. The question is not whether an entity condemned property, but whether the entity had the power to do so, the rationale being that if the property owner refused to sell the property, the condemning authority would simply exercise its power of eminent domain."
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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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