Continental Enterprises, Inc. v. Cain

• Decision Date: 29 March 1979
• Docket Number: No. 3-376,3-376
• Citation: Continental Enterprises, Inc. v. Cain, 387 N.E.2d 86, 180 Ind.App. 106 (Ind. App. 1979)
• Parties: CONTINENTAL ENTERPRISES, INC., Plaintiff-Appellant, v. Mildred CAIN, Defendant-Appellee. A 55.
• Court: Indiana Appellate Court

Page 86

387 N.E.2d 86

180 Ind.App. 106

CONTINENTAL ENTERPRISES, INC., Plaintiff-Appellant, v.Mildred CAIN, Defendant-Appellee.

No. 3-376 A 55.

Court of Appeals of Indiana, Third District.

March 29, 1979.

Kenneth A. King, Kendallville, for plaintiff-appellant.

John C. Thrapp, Thrapp & Thrapp, Kendallville, James R. Heuer, Gates & Gates, Columbia City, for defendant-appellee.

GARRARD, Presiding Judge.

Appellant(Continental) is the owner of a peninsula which extends into Sylvan Lake.Both the lake and peninsula were formed around 1838 when the state dammed the Little Elkhart River.This appeal stems from Continental's second unsuccessful attempt to acquire an easement over the only unsubmerged land adjoining the peninsula.In its earlier action Continental had relied on the common law doctrine of easement by necessity, but because its land and the adjoining land of appellee(Cain) had never been held by a common grantor, we held that unity of ownership had not been established and the easement could not be granted.Continental Enterprises, Inc. v. Cain(1973), 156 Ind.App. 305, 296 N.E.2d 170.

Continental's present effort is based on IC 32-5-3-1 which provides:

"In all cases where, heretofore or hereafter, the lands belonging to a landowner or to landowners in this state, shall have been shut off from a public highway, because of the straightening of any stream, or the construction of any ditch, under the laws of the state of Indiana, or by the erection of any dam constructed by the state of Indiana or the United States or any of their agencies or political subdivisions under the laws of the state of Indiana, and in case the owner or owners of lands thus affected cannot secure an easement or right-of-way on and over the lands adjacent thereto, and intervening between such lands and the public highways most convenient thereto, either because the adjacent and intervening landowner or landowners refuse to grant such easement, or because the interested parties cannot agree upon the consideration to be paid by the landowner or landowners so deprived of such access to the highway, he or they shall have such right of easement established as a way of necessity under the provisions of IC 1971, 32-11-1 (32-11-1-1 32-11-1-13).(Acts 1935, ch. 56 § 1, p. 150: 1973, P.L. 302 § 1, p. 1613.)"

At trial the appellee contended that the statute was unconstitutional because it permitted the taking of private property for private purposes.The trial court did not reach the issue of whether the statute was unconstitutional per se.It held that it was the intent of the legislature that the relief provided by this statute be available only to those who held title to affected land at the time it was deprived of access by the state, and that to construe the statute to allow a taking by a subsequent owner would sanction a taking for a private purpose in violation of the Indiana Constitution.In addition, the court found that Continental sought the easement for the private use of its land.Those grounds were sufficient to deny relief to the appellant.

Continental raises numerous challenges to the decision, most of which need not be resolved if it can be established that the easement sought would not serve a public purpose.We do point out, however, that Continental's contentions that the court had no authority to consider either the constitutionality of the statute or the intent of the legislature are without merit.Continental asserts that Cain failed to give the required notice to the Attorney General of the constitutional challenge to the statute.That claim is refuted by the record.Continental also contends that it was necessary for Cain to present evidence on the unconstitutionality of IC 32-5-3-1 and that she failed to do so, leaving the court with no basis to consider the challenge according to Board of Commissioners of Howard County v. Kokomo City Plan Commission(1975), 263 Ind. 282, 330 N.E.2d 92.However, Cain alleged that the particular condemnation desired by Continental would be a violation of the constitution.Thus, evidence which of necessity was presented by Continental as to the particular use to be made of the land to be condemned, determined whether the taking could be done within the confines of the constitution.By revealing that purpose, the divergent evidentiary goals of both parties were attained.Therefore, the trial court did not need to rule that IC 32-5-3-1 was unconstitutional.In finding that if applied as Continental wished, a constitutional violation would occur, the court decided the case so as to leave the statute, itself, in effect.Thus, the court acted within the scope of Board of Commissioners of Howard County, supra, 330 N.E.2d at 96.

Continental raises two arguments to support its claim that the trial court was not justified in attempting to ascertain the intent of the legislature in regard to the statute's retroactive applicability.It points to the use of the word "heretofore" in the statute as being sufficient to demonstrate an intent of retroactivity.Although Cain concedes that retroactivity is contemplated by the use of the word "heretofore,"she urges that the language does not convey a meaning of Unlimited retroactivity.She points out that a reading of "heretofore" with the words "lands belonging to a landowner or landowners" may imply limited retroactivity.That is, that the statute's relief is available at any time after access has been cut off to those who held title to the land at the time of the deprivation.We agree that the language chosen by the legislature does not mandate unlimited retroactivity and, therefore, the court was correct in attempting to determine the legislature's intent within the confines of the constitution.¹

Moreover, we do not agree that the trial court could not construe the statute because Cain asserted a challenge which supported an interpretation of unlimited retroactivity.Cain had alleged that in response to our 1973 decision holding that a common law easement was unavailable, Continental's attorney succeeded in having IC 32-5-3-1 amended into its present form so that the statute would specifically cover Continental's situation.Even if we were to assume that Continental's attorney did secure the amendment, "the motives of the sponsors (of legislation) cannot be imputed to the Legislature unless there is basis for it in its statutory expression."Tinder v. Clarke Auto Co., Inc.(1958), 238 Ind. 302, 310, 149 N.E.2d 808, 818.The statute as expressed through its language does not clearly indicate applicability to Continental's situation, nor to others who have taken title to land after it has been deprived of access.

Both parties have presented arguments on the constitutionality of IC 32-5-3-1.However, because we can resolve this appeal without determining the constitutional validity of the statute, we need not and should not reach that issue.Rather we limit our discussion here to the question of whether the appellant has shown the one requisite factor which must attend any particular condemnation, regardless of its statutory authorization, and which must be present to assure that the specific taking is consonant with the constitution.Art. 1 § 21 of our Constitution provides that "(n)o man's property shall be taken by law, without just compensation."As is the case with similar provisions in other states, this language has been held to mean not only that compensation must be given for a condemnation for a public purpose, but also that private property may not be taken for a private purpose.²Great Western Natural Gas & Oil Co. v. Hawkins(1903), 30 Ind.App. 557, 66 N.E. 765;26 Am.Jur.2dEminent Domain, § 25.Continental asserts that the use to be made of the land it seeks to condemn will serve a public purpose.

Continental's complaint sought to have title to the proposed easement vested in itself and alleged the easement was necessary in order to "make use" and "obtain fair enjoyment" of the peninsula.After the decision of the trial court, Continental moved to amend its claim to allege a public purpose and to have title to the easement vested in the county.Because IC 32-11-1-5 states that if the objections made by a defendant in a condemnation action are sustained, the plaintiff may amend the complaint on appeal to this court or the Supreme Court, Continental urges that amendment is a matter of right.The trial court, however, denied the motion on the ground that evidence of public purpose had been taken into consideration when it made its finding that Continental sought the easement for a private purpose.The court correctly denied the motion.Amendments under IC 32-11-1-5 are proper only when necessary to make the complaint conform to the evidence.Indianapolis Water Co. v. Lux(1946), 224 Ind. 125, 64 N.E.2d 790.As can be seen from the discussion below, an allegation of public purpose was not supported by the evidence.

Continental argues that a public purpose may be found whenever property is made accessible for its fullest use, although no particular use is specified.At trial, however, it suggested two types of uses which we discuss in order to stress the fact that public purpose entails something more than accessibility by some members of the public.

Continental's president testified that although no plans had been drawn up, the peninsula might be used as a "church site or something of that nature."Such a use of the peninsula would not imbue the condemnation of the easement with a public purpose.The fact that the party seeking the condemnation is of a religious, educational or other "public benefit" nature does not entitle it to take private land for its own purposes rather than for public purposes.That view has been expressly disavowed lest ". . . churches, lodges, clubs, civic organizations, temperance organizations, theatres, circuses . . . an endless chain . . . ." acquire a power which is an attribute of...