City of Hammond, Lake County v. Drangmeister

• Decision Date: 30 June 1977
• Docket Number: No. 3-274A22,3-274A22
• Parties: The CITY OF HAMMOND, LAKE COUNTY, Indiana, a Municipal Corporation, Defendant-Appellant, v. Bruno DRANGMEISTER and Lydia Drangmeister, Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 157

364 N.E.2d 157

173 Ind.App. 476

The CITY OF HAMMOND, LAKE COUNTY, Indiana, a Municipal

Corporation, Defendant-Appellant, v. Bruno DRANGMEISTER and Lydia Drangmeister, Plaintiffs-Appellees.

No. 3-274A22.

Court of Appeals of Indiana, Third District.

June 30, 1977.

Owen W. Crumpacker, Richard A. Miller, John R. Stanish, City Atty., Hammond, for defendant-appellant.

George H. Dragus, Hammond, George Vann, Kentland, for plaintiffs-appellees.

HOFFMAN, Judge.

This is an inverse condemnation action tried by the parties pursuant to the provisions of IC 1971, 32-11-1-12 (Burns Code Ed.). The action arises from the alleged taking of Bruno and Lydia Drangmeister's property by the construction of a street thereon by defendant-appellant City of Hammond (City). After an evidentiary hearing based upon a stipulation of facts between the parties, the trial court found that a taking had occurred and appointed appraisers to assess the damages and benefits sustained as a result thereof. The appraisers' report was filed on December 7, 1970. Thereafter, exceptions to such report were filed by the parties and a jury trial requested. Appellees Drangmeister later withdrew their exceptions to the appraisers' report and, subsequently, filed a motion to strike City's exceptions. Thereafter, a pretrial order was entered setting the issue of damages to be tried by a jury and sustaining the motion to strike City's exceptions. Following trial to the jury, a verdict was returned in favor of appellees in the amount of $23,000, plus interest to be computed by the court, and judgment entered thereon in the total amount of $27,934.77.

The issues presented for review are whether the trial court erred in finding that a taking occurred, whether the trial court's order sustaining appellees' motion to strike City's exceptions resulted in there being no issue upon which a trial could be had, and whether the appraisers' report should be set aside.

There are two stages in an action for inverse condemnation. The first stage involves the issue of whether a taking of property has occurred. At this stage, the landowner must show that he has an interest in land which has been taken for a public use without having been appropriated under eminent domain laws. If the trial court finds that a taking has occurred, the action proceeds to its second stage wherein appraisers are appointed by the court, and damages are assessed. Schuh v. State (1968), 251 Ind. 403, 241 N.E.2d 362.

The first issue presented for our resolution focuses upon the question of whether a "taking" occurred. ¹ "Our review of the trial court's determination that a taking occurred is limited to a consideration of the evidence presented at the evidentiary hearing on this issue." City of Gary, etc. v. Ruberto (1976), Ind.App., 354 N.E.2d 786, at 792. Such evidence was presented to the trial court upon a stipulation of facts and exhibits. Such stipulation is mutually binding on the parties, but will not be construed as admitting facts obviously intended to be in controversy. On appeal, we view only the pertinent portions thereof, and these, in a light most favorable to the trial court's finding. Anuszkiewicz v. Anuszkiewicz (1977), Ind.App., 360 N.E.2d 230.

The stipulation of facts disclose that in August, 1956, appellees became the owners of a certain parcel of real estate. On July 1, 1967, City began construction of a road known as "171st Street" in Hammond, Indiana. The road was constructed over and across the parcel of real estate owned by appellees. Before proceeding with the road construction, the City failed to negotiate with appellees for the purchase, rental or lease of the real estate or to appropriate the real estate under the powers of eminent domain. Such land was taken and appropriated by City without the institution of any proceedings to assess the value of appellees' land or any damages suffered. It was further stipulated that since appellees became the owners of the foregoing parcel of real estate, they have occupied and used the whole thereof, including that portion on which 171st Street was constructed.

It was also stipulated that Declaratory Resolution No. 1105 for the opening and widening of what is now known as 171st Street was adopted, that on July 14, 1924, a "Notice of Hearing For Remonstrances" was published and that thereafter Confirmatory Resolution No. 1105 for the opening and widening of 171st Street, which included the parcel of real estate involved in the case at bar, was adopted.

In the trial court, City contended that the Eminent Domain Act of 1905 ² was inapplicable since there was a dedication of the right-of-way to the City. However, there is nothing in the stipulation of facts which support a dedication. On appeal, City concedes in its reply brief that dedication was an unfortunate choice of words to describe the manner in which 171st Street was allegedly obtained by the City and that a more appropriate description of the proceedings is condemnation pursuant to statutory powers.

The Eminent Domain Act of 1905 provides that the failure to take possession of such land and adopt it to the use for which it was appropriated within five years after payment of the award amounts to a forfeiture. IC 1971, 32-11-1-11 (Burns Code Ed.). The City did not use the land for the purpose for which it was appropriated until 1967. Moreover, it has been held that an easement acquired by condemnation proceedings may be lost by nonuser for an unreasonable length of time. 30 C.J.S. Eminent Domain § 457, at p. 658. Thus there was sufficient evidence to support the finding that a taking had occurred.

The next question to be resolved is whether there was any issue to be presented to a jury by reason of the fact that the trial court granted appellees' motion to strike City's exceptions to the appraisers' award. The record discloses that the appraisers' report was filed with the court on December 7, 1970. On December 17, 1970, each party filed its exceptions to the report and requested a jury trial. The appellees thereafter...