Bradley v. Eagle-Union Community School Corp. Bd. of School Trustees

• Decision Date: 14 March 1995
• Docket Number: EAGLE-UNION,No. 06A05-9405-CV-200,06A05-9405-CV-200
• Citation: 647 N.E.2d 672
• Parties: 98 Ed. Law Rep. 975 Lester and Alyce BRADLEY, Appellants-Plaintiffs, v.COMMUNITY SCHOOL CORPORATION BOARD OF SCHOOL TRUSTEES, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 672

647 N.E.2d 672

98 Ed. Law Rep. 975

Lester and Alyce BRADLEY, Appellants-Plaintiffs, v. EAGLE-UNION COMMUNITY SCHOOL CORPORATION BOARD OF SCHOOL TRUSTEES, Appellee-Defendant.

No. 06A05-9405-CV-200.

Court of Appeals of Indiana Fifth District.

March 14, 1995.

Rehearing Denied May 18, 1995.

James P. Buchanan, Buchanan & Buchanan, Lebanon, for appellants.

Kent M. Frandsen, Parr Richey Obremskey & Morton, Lebanon, for appellee.

OPINION

BARTEAU, Judge.

Lester and Alyce Bradley appeal the trial court's denial of their request for attorney's fees and expenses following the abandonment of interest in the Bradleys's property by the Eagle-Union Community School Corporation Board of School Trustees ("Eagle-Union"). The Bradleys also appeal the grant of Eagle-Union's motion for summary judgment. We state the issues raised by the Bradleys as:

1. Whether Eagle-Union initiated condemnation proceedings, thereby entitling the Bradleys to recover attorney fees and expenses incurred in defending the proceedings; and

2. Whether the trial court should have dismissed the Bradleys's tort claim against Eagle-Union without prejudice.

FACTS

The facts relevant to the issues on appeal are relatively simple. Eagle-Union approved a plan in the spring of 1993 for the construction of a new high school. A committee was appointed to make a recommendation as to a site for the new school. On June 21, 1993, Eagle-Union adopted a resolution identifying the Bradleys's property as a site for the school. The superintendent was given the authority to obtain two appraisals for the property and was given the authority to extend an offer to purchase the property.

No offer to purchase was extended and on July 15, 1993, the Bradleys filed a complaint against Eagle-Union seeking to enjoin it from condemning the Bradleys's property. Eagle-Union had not initiated condemnation proceedings. The trial court granted Eagle-Union's motion to dismiss. The Bradleys then filed an amended complaint that repeated the request for an injunction and also sought damages for injuries claimed as a result of the threat of condemnation proceedings. This complaint was again amended in response to a motion to dismiss, or in the alternative, for summary judgment, to allege that Eagle-Union had been served a notice of the tort claim. The notice was served on Eagle-Union on October 28, 1993, at the same time as the filing of the second amended complaint. Eagle-Union amended its motion to address the allegations in the second amended complaint and a hearing was held on November 16, 1993.

On the same day, Eagle-Union filed its motion for an order permitting access to the Bradleys's property for the purpose of conducting soil testing. The Bradleys filed an objection to this motion. Before the trial court ruled on this motion, Eagle-Union withdrew the motion, informing the court that it was suspending all work on the proposed building project and was abandoning any interest in acquiring the Bradleys's property. On February 4, 1994, the Bradleys filed a petition to recover the attorney's fees and expenses they had incurred.

On February 8, 1994, the trial court granted Eagle-Union's motion for summary judgment and on February 14, 1994 denied the Bradleys's petition for recovery of fees and expenses. Other facts will be presented as necessary.

CONDEMNATION PROCEEDING

The Bradleys first raise the issue whether Eagle-Union's request for access to the Bradleys's property for soil testing was an initiation of condemnation proceedings entitling the Bradleys to recovery of fees and expenses once Eagle-Union abandoned its efforts. The Bradleys sought recovery of fees and expenses pursuant to Ind.Code 8-23-17-27(a), which provides:

The court having jurisdiction of a proceeding instituted by an agency to acquire real property by eminent domain shall award the owner of a right, or title to, or interest in, the real property the sum that will on the opinion of the court reimburse the owner for reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of the condemnation proceedings, if:

* * * * * *

(2) the proceeding is abandoned by the agency.

There is no dispute that Eagle-Union is an agency authorized to acquire property by eminent domain. The Bradleys argue that Eagle-Union initiated condemnation proceedings against the Bradleys's property when it asked to access the property for soil testing because soil testing constitutes a taking of property.

Eagle-Union sought permission to access the Bradleys's property under authority of I.C. 32-11-1-1(b) which provides:

Before proceeding to condemn, the person, corporation, or other body [having the right to exercise the power of eminent domain] may enter upon any land for the purpose of examining and surveying the property sought to be appropriated or right sought to be acquired and shall make an effort to purchase for the use intended such lands, right-of-way, easement, or other interest therein or other property right.

This provision gives the condemnor the right to survey and examine property prior to initiating condemnation proceedings for the purpose of determining whether the property is suitable and how much of it is needed before engaging in the expense of condemnation proceedings. Indiana & Michigan Elec. Co. v. Stevenson (1977), 173 Ind.App. 329, 334, 363 N.E.2d 1254, 1259. What constitutes permissible examining and surveying under this statute and what becomes an unconstitutional taking of property has been the subject of court opinions. In Stevenson, this court held that a "taking" occurs when there is a substantial interference with the owner's use and enjoyment of the property. Whether a particular interference is substantial is a question of fact for the fact-finder. 173 Ind.App. at 335, 363 N.E.2d at 1259. Thus, a reasonable person could find that cutting down 1800 feet of corn and cutting down twenty-three trees in order to survey the property pursuant to I.C. 32-11-1-1 substantially interfered with the owner's use of that property and constituted an unconstitutional taking of the property. 173 Ind.App. at 336, 363 N.E.2d at 1260.

Similarly, in Indiana State Highway Com'n v. Ziliak (1981), Ind.App., 428 N.E.2d 275, we held that the trial court properly denied a request pursuant to I.C. 32-11-1-1 to conduct an intensive archaeological survey upon property prior to initiation of condemnation proceedings. The archaeological survey entailed very intrusive digging of the property, including 50-foot long and six-foot wide trenches, or 50-foot square holes, or many five-foot square holes. We concluded that the word "survey" as used in I.C. 32-11-1-1 did not...