Bussing v. Indiana Dept. of Transp.

• Decision Date: 27 November 2002
• Docket Number: No. 82A01-0111-CV-433.,82A01-0111-CV-433.
• Citation: 779 N.E.2d 98
• Parties: W.C. BUSSING, Jr. and Bussing Construction Corp., Appellants-Plaintiffs, v. INDIANA DEPARTMENT OF TRANSPORTATION, Appellee-Defendant.
• Court: Indiana Appellate Court

779 N.E.2d 98

W.C. BUSSING, Jr. and Bussing Construction Corp., Appellants-Plaintiffs, v. INDIANA DEPARTMENT OF TRANSPORTATION, Appellee-Defendant.

No. 82A01-0111-CV-433.

Court of Appeals of Indiana.

November 27, 2002.

Leslie C. Shively, Shively & Associates, Evansville, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

Appellants, W.C. Bussing, Jr., and Bussing Construction Corp. (collectively "Bussing"), sued Appellee, the Indiana Department of Transportation ("INDOT"),¹ under the theory of inverse condemnation after INDOT informed Bussing of its intention to eliminate left-hand turns from State Road 66 onto Brentwood Avenue, which connects Bussing's apartment complex to S.R. 66. Following the trial court's judgment in favor of INDOT, Bussing presents two issues for our appellate review, which we restate as whether the trial court erred in concluding that there had been no compensable taking of Bussing's property.

We affirm.

The record reveals that Bussing owns the Fielding Court Apartments, which are located at the southwest corner of S.R. 66 and Brentwood.² State Road 66 runs east and west and is intersected by Brentwood, which runs north and south. Bussing began construction of these apartments in 1968, at which time S.R. 66 was a two-lane road known as Division Street. Brentwood runs adjacent to the east side of the apartment complex and provides access to S.R. 66 from the apartments. In 1984, INDOT began a project to enlarge S.R. 66 into a four-lane highway known as the Lloyd Expressway. As part of this process, INDOT initiated condemnation proceedings to acquire a strip of land owned by Bussing. As part of the expansion project, INDOT constructed a sixty-foot wide median on S.R. 66 at the Brentwood intersection. The median was constructed with left-hand turn lanes for both eastbound and westbound traffic on S.R. 66. Thus, a driver traveling in either direction on S.R. 66 was able to turn southbound onto Brentwood and access the Bussing property.

On March 19, 1986, INDOT informed Bussing of its intention to maintain the existing access to Brentwood. Through an agreed finding and judgment, filed on May 27, 1986, Bussing relinquished his interests in the property sought by INDOT and granted a temporary easement for highway right-of-way and easements of ingress and egress to, from, and across S.R. 66.

On January 25, 1999, INDOT sent Bussing a letter informing him that it planned to eliminate the left-hand turn at the intersection of Brentwood and S.R. 66. Bussing eventually filed an amended complaint against INDOT on October 25, 1999, under the theory of inverse condemnation. The complaint requested that the trial court find that a taking of Bussing's property and access rights had occurred and requested an order directing the matter to proceed under Indiana's eminent domain statutes for an assessment of damages.³ On August 6, 2001, the trial court held a trial on the issue of whether a taking had occurred. On October 16, the trial court entered findings of fact and conclusions of law in favor of INDOT, finding that no compensable taking had occurred.

At Bussing's request, the trial court entered special findings and conclusions pursuant to Trial Rule 52. Our standard of review is therefore two-tiered: we determine whether the evidence supports the trial court's findings, and we determine whether the findings support the judgment. Indianapolis Indiana Aamco Dealers Advertising Pool v. Anderson, 746 N.E.2d 383, 386 (Ind.Ct.App.2001). We will not disturb the trial court's findings or judgment unless they are clearly erroneous. Id. Findings of fact are clearly erroneous when the record lacks any reasonable inference from the evidence to support them, and the trial court's judgment is clearly erroneous if it is unsupported by the findings and the conclusions which rely upon those findings. Culley v. McFadden Lake Corp., 674 N.E.2d 208, 211 (Ind.Ct.App.1996). In determining whether the findings or judgment are clearly erroneous, we consider only the evidence favorable to the judgment and all reasonable inferences to be drawn therefrom. Gunderson v. Rondinelli, 677 N.E.2d 601, 603 (Ind.Ct.App.1997). We will neither reweigh evidence nor judge the credibility of witnesses. Anderson, 746 N.E.2d at 386. Here, Bussing is appealing from a negative judgment, and therefore we will reverse the trial court only if the evidence is without conflict and all reasonable inferences to be drawn from the evidence lead to a conclusion other than that reached by the trial court. Id.

Although Bussing fashions his argument as consisting of two issues, his argument essentially is that several of the trial court's conclusions are erroneous. We will address each of Bussing's challenges to the trial court's conclusions in turn.

Conclusion No. 1

Bussing challenges the trial court's Conclusion Number 1, which reads, "The Plaintiffs relinquished all access rights to State Road 66 from the real estates subject to this cause under judgments entered in Vanderburgh Superior Court in 1986." Appendix at 12. The trial court's conclusion appears to be recognition that Bussing relinquished his direct access rights to S.R. 66 to INDOT. This is supported by the language of the judgment itself,⁴ and the testimony of Mr. Bussing, who testified at trial that the 1986 judgment appropriated his right to access S.R. 66 directly from his property.

Bussing claims that the 1986 judgment and settlement preserved his right to access S.R. 66. Specifically, he claims that the judgment provided for "monetary consideration and the creation of a cross over at Brentwood Avenue and the widening of Brentwood Avenue for access." Appellant's Br. at 8. Bussing, however, does not cite to any portion of the 1986 judgment which supports his contention, nor does our review of this document reveal any such support. Instead, we note that the 1986 judgment twice provides that Bussing was to receive monetary compensation for land and property rights taken. Nowhere in the 1986 judgment do we find any reference to the creation of a crossover in the median or the widening of Brentwood as additional consideration offered to Bussing in exchange for the land and property rights taken.

In further support of his argument regarding the 1986 judgment, Bussing refers to that portion of the judgment which created cross easements between the property owned by Bussing Construction Corp. and W.C. Bussing, Jr., individually. The 1986 judgment did call for the creation of a permanent easement in favor of W.C. Bussing, Jr., across the north and west line of the Bussing Construction Corp.'s property to serve as a means of ingress and egress to the Fielding Court Apartments.⁵ Bussing claims this was done to prevent the westernmost parcel of land from being denied "total access" to S.R. 66. Appellant's Reply Br. at 2. We fail to see how the creation of this easement prohibits the elimination of left-hand turns from S.R. 66 onto Brentwood or from Brentwood onto S.R. 66 without further compensation to Bussing.

Mr. Bussing testified at trial that the possibility of INDOT eliminating the left-hand turn lane by constructing a median never came up during his negotiations with INDOT which resulted in the 1986 judgment. If such issues never arose at that time, we cannot see how the 1986 judgment prevented the State from modifying the flow of traffic on S.R. 66 without compensating Bussing. The evidence is not without conflict, and all reasonable inferences to be drawn from the evidence do not lead to a conclusion other than that reached by the trial court.

Conclusion No. 2

Bussing challenges the trial court's second conclusion, which states:

"The Plaintiffs' access to State Road 66 by way of Brentwood Avenue was never special or peculiar to the real estates subject to this cause; but, common to the general public and all property owners whose land abuts or is served by Brentwood Avenue, a dedicated city street that connects with other city streets." Appendix at 12.

The general rule is that, before any basis for compensable damage may be obtained by an owner of real estate in an eminent domain proceeding, either some physical part of the real estate must be taken from the owner or lessor, or some substantial right attached to the use of the real estate taken; it must be special and peculiar to the real estate and not some general inconvenience suffered alike by the public. Young v. State, 252 Ind. 131, 134, 246 N.E.2d 377, 379 (1969), cert. denied 396 U.S. 1038, 90 S.Ct. 685, 24 L.Ed.2d 683 (1970); State v. Jordan, 247 Ind. 361, 368, 215 N.E.2d 32, 35 (1966).

Here, Bussing insists that the access from his apartment complex to S.R. 66 via Brentwood was special and peculiar. Bussing refers to evidence most favorable to his contention. However, we must consider upon appeal only the evidence favorable to the judgment and all reasonable inferences to be drawn therefrom. Gunderson, 677 N.E.2d at 603. Bussing simply invites us to reweigh the evidence and reach a different conclusion than did the trial court. We will not do so.

Moreover, Bussing admitted at trial and acknowledges upon appeal that Brentwood is a public thoroughfare used by other landowners south of the intersection. Although Bussing claims that this fact is irrelevant, we believe this supports the trial court's conclusion that the access from S.R. 66 via Brentwood was not special and peculiar to Bussing's apartment complex alone, but was a general convenience enjoyed alike by the public. See Young, 252 Ind. at 134,

246 N.E.2d at 379; Jordan, 247 Ind. at 368,

215 N.E.2d at 35.

Support for the trial court's conclusion may be found in State v. Ensley, 240 Ind. 472, 164 N.E.2d 342 (1960). In Ensley, no physical property was taken from the landowners. However, the result of the construction of a...