Appeals court lets stand contested court order for I-69 land

A Morgan County couple lost their challenge of a court order appropriating land in which they had an easement interest for the construction of the new final leg of Interstate 69.

The order in Herbert C. Haggard and Alice M. Haggard v. State of Indiana and Jerry L. Hillenburg and Morgan County, Indiana, 20A-PL-1502, lets stand a court order appropriating land owned by Jerry Hillenburg that the state needed as right-of-way for the new section of I-69 that will eventually connect Indianapolis with southwestern Indiana. The property includes a billboard leased by Hillenburg, and the court-ordered appraisal totaled $334,000.

Herbert and Alice Haggard had an easement interest in the property that was recorded by deed, but the trial court found that they did not have to be given notice of the state’s offer to purchase the property because they didn’t meet the definition of owners. The COA panel agreed.

“The State was not required to provide a pre-complaint offer to the Haggards because they do not have title to the real estate the State is seeking to condemn,” Judge James Kirsch wrote. “As holders to an easement interest in the property, the Haggards are appropriate defendants to the State’s condemnation suit for determination of any just compensation they are due for their interest in the easement. Ind. Code § 32- 24-1-4. However, an interest in property alone is not ownership of the real estate entitled to an offer as a condition precedent to the State’s condemnation suit. See Ind. Code § 34-24-1-2; Ind. Code § 34-24-1-3 (requiring the condemnor to make a good faith effort to purchase the property from the owner of the property).

“The owner of the property that the State seeks to condemn, who was entitled to an offer to purchase as a precondition to the filing of a complaint, was Hillenburg because he holds title to the property at issue, is listed on the tax assessment rolls as being responsible for the payment of real estate taxes imposed on the property, and is the person in whose name title to real estate is shown in the records of the recorder of the county in which the real estate is located,” the panel found.

And while the Haggards objected based on claims that the court ruled in spite of deadline tolling orders issued by the Indiana Supreme Court due to COVID-19, the appellate panel found no grounds for such arguments.

“Although the Haggards allege that the trial court overruled their objections and motion to vacate the appropriation at least partly due to untimeliness, the trial court’s order does not reflect that, and as we have determined above, their objections had no merit,” Kirsch wrote. “Further, the Haggards have not shown how they were prejudiced because they were allowed to file their objections on July 6, 2020, to which the State filed a motion to overrule and the Haggards filed a response to, and the trial court, thereafter, reviewed such objections and denied them in the order from which the Haggards now appeal. We do not find that the trial court erred in overruling the Haggards’ objections and motion to vacate the order of appropriation.”

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