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. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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