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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. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  2. wow is this a bunch of bs! i know the facts!

  3. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  4. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  5. It's a capital offense...one for you Latin scholars..

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