Dible v. City of Lafayette

Citation713 N.E.2d 269
Decision Date09 June 1999
Docket NumberNo. 79S02-9710-CV-619.,79S02-9710-CV-619.
PartiesLeonard F. and Barbara H. DIBLE, Appellant (Plaintiff below), v. CITY OF LAFAYETTE, Appellee (Defendant below).
CourtSupreme Court of Indiana

Jeffrey S. Dible, Attica, Indiana, Attorney for Appellant.

Jerome L. Withered, Angela M. Service, Withered & Corrigan, Lafayette, Indiana, Attorneys for Appellee.


SULLIVAN, Justice.

Leonard and Barbara Dible sought declaratory and injunctive relief requiring the City of Lafayette to remove sewage and drainage structures it built on a City easement on the Dibles' property. The trial court granted summary judgment in favor of the City. The Court of Appeals reversed, holding the Dibles were entitled to pursue their claim as a public lawsuit. We conclude that if the Dibles are entitled to any relief, it is for inverse condemnation.


In 1971, Leonard and Barbara Dible purchased a residential lot in Tippecanoe County to build a home. A steeply banked and wooded ravine traversed the western end of the lot. The Dibles' property was subject to two restrictive covenants recorded in 1968 reserving easements for "installation of utilities [as well as] drainage of storm water." A third covenant, recorded in 1970, prohibited the filling in or alteration of any natural ravine.

When the Dibles purchased this lot in 1971, there was a sewage lift station on a triangular utility easement, which extended onto part of the ravine. In 1978, the City of Lafayette accepted responsibility for the lift station from the original developers of the subdivision and became the holder of the utility easement on the Dibles' property. In 1992, the City determined that the lift station needed to be replaced and began construction on two projects to improve the subdivision's drainage and sewage systems that affected Dibles' property. The first project involved the installation of new storm sewer drains and the second entailed the construction of a new lift station on the site of the old station.

Throughout 1993, the Dibles objected orally and in writing to the City's work on both projects, which they considered an unlawful taking of their property. The Dibles also regularly contacted the Indiana Department of Environmental Management ("IDEM") to check on the status of the City's construction plans and permit applications. On March 29 and 30, 1993, in connection with the storm drain project, the City excavated most of the Dibles' ravine and cut down or destroyed seventeen large trees. On April 6, 1993, the City installed 105 feet of concrete storm sewer drain in the ravine and covered it with fill dirt. On April 12, 1993, the City obtained a permit to fill in the ravine to construct a building pad for the sewage lift station.

The City began excavation of the station site on June 27, 1994. On June 29, 1994, the Dibles filed this lawsuit, alleging that the construction exceeded the City's easement, violated restrictive covenants, and constituted an unlawful taking of the Dibles' property. The Dibles sought declaratory relief and requested that the trial court issue a preliminary injunction halting any additional construction. After several continuances and one change of judge, the trial court set a trial date of October 24, 1994. Trial was subsequently continued to February 13, 1995. However, the City completed construction of the lift station in January, 1995.

The Dibles amended their complaint to request a mandatory injunction requiring the City to remove those portions of the lift station that represented "an unlawful misuse of a utility easement and an unlawful taking of [Dible's] property without just compensation." The City moved for summary judgment in December, 1995, contending that (1) the Dibles had failed to exhaust their administrative remedies, and (2) the City had constructed the lift station entirely within existing drainage and utility easements and had not encroached on the Dibles' property. In opposition, the Dibles tendered an affidavit from an expert witness, who opined that the lift station's design and construction were "wasteful" and "of no public utility."

The trial court granted the City's motion for summary judgment.1 The Dibles appealed and the Court of Appeals reversed. In its remand order, the Court of Appeals directed that the suit proceed as a public lawsuit. Dible v. City of Lafayette, 678 N.E.2d 1271 (Ind.Ct.App.1997).


In its petition to transfer, the City raises seven arguments, which we consolidate and restate as follows: (1) whether the Court of Appeals erred in reversing the trial court's grant of summary judgment in favor of the City; and (2) whether the Court of Appeals erred in sua sponte remanding the cause for trial as a public lawsuit.


The standard of review we apply today is the same as that applied by the trial court:

Summary judgment is appropriate only when the evidentiary matter designated by the parties shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ind.Trial Rule 56(C). The movant bears the burden of establishing the propriety of summary judgment, and all facts and inferences to be drawn therefrom are viewed in a light most favorable to the non-movant.

Town of Syracuse v. Abbs, 694 N.E.2d 284, 286 (Ind.Ct.App.1998) (citations omitted) (reversing denial of Town's motion for summary judgment where Abbs sought to permanently enjoin the Town from paving a street bordering her property), transfer denied. Where, as here, a defendant moves for summary judgment, the application of this standard of review changes slightly:

When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiff's cause of action or that the defendant has a factually unchallenged affirmative defense which bars the plaintiff's claim.

Carroll by Carroll v. Jagoe Homes, Inc., 677 N.E.2d 612, 615 (Ind.Ct.App.1997)

(citing Moore v. Sitzmark Corp., 555 N.E.2d 1305, 1307 (Ind.Ct.App.1990)).

Accordingly, to prevail on its motion for summary judgment, the City need only have negated one element of the Dibles' claims for declaratory and injunctive relief. While we agree with the trial court that summary judgment for the defendant is proper here, we reach this conclusion on different grounds.2

When considering a motion for declaratory judgment,

the test to be applied is whether the issuance of a declaratory judgment will effectively solve the problem, whether it will serve a useful purpose, and whether or not another remedy is more effective or efficient. The determinative factor is whether the declaratory action will result in a just and more expeditious and economical determination of the entire controversy.

Volkswagenwerk, A.G. v. Watson, 181 Ind. App. 155, 390 N.E.2d 1082, 1085 (1979) (citations omitted). "The use of a declaratory judgment is discretionary with the court and is usually unnecessary where a full and adequate remedy is already provided by another form of action. However, according to [Ind.Trial Rule 57], `The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate.'" Id. (citations omitted).

Requests for mandatory injunctions are subject to similar considerations.

A mandatory injunction is an extraordinary equitable remedy which should be granted with caution. The plaintiff carries the burden of demonstrating injury which is certain and irreparable if the injunction is denied. In making its decision the trial court must weigh whether the plaintiff has an adequate remedy at law and the court must consider whether an injunction is in the public interest.

Campbell v. Spade, 617 N.E.2d 580, 583 (Ind. Ct.App.1993) (citations omitted); see also City of Muncie v. Pizza Hut, 171 Ind.App. 397, 357 N.E.2d 735, 738 (1976)

(holding that injunctive relief will not lie where there is an adequate remedy at law). Hence, before ordering either declaratory or injunctive relief, a court is bound to consider alternate remedies available to the plaintiff.

The Dibles advance a wide assortment of bases for the relief they seek. Central among these claims is the allegation that the City's construction of the sewage lift station—in particular the altering and filling in the natural ravine—misused easements, violated restrictive covenants running with the land, and constituted an unlawful taking of their property. (Appellant's Br. at 2).

A restrictive covenant constitutes a compensable interest in land. Pulos v. James, 261 Ind. 279, 283, 302 N.E.2d 768, 771 (1973); see also Adaman Mutual Water Co. v. United States, 278 F.2d 842, 849 (9th Cir.1960)

(concluding that under Fifth Amendment, a restrictive covenant imposes a duty running with the land and constitutes compensable interest). Such a covenant is not enforceable against an entity with the power of eminent domain—at least to the extent that the entity's use is for a public purpose.3 But if that entity's use violates the restrictions of the covenant, there is a taking that entitles the owners to compensation. See Carolina Mills v. Catawba County Bd. of Educ., 27 N.C.App. 524, 219 S.E.2d 509, 511 (1975) (enforcing a restrictive covenant against condemning authority would defeat the purpose of eminent domain, but use of property—whether purchased or condemned—violating a restrictive covenant, constitutes taking and entitles an owner to compensation); Horst v. Housing Auth., 184 Neb. 215, 166 N.W.2d 119, 120 (1969) (holding that condemnation of land extinguishing restrictive covenant constitutes taking that entitles owners to compensation); Town of Stamford v. Vuono, 108 Conn. 359, 143 A. 245, 249 (1928) (holding that taking of property subject to restrictive easement entitles an owner of property for whose benefit restriction is imposed to compensation); see also R.E. Barber, Annotation, Eminent Domain: Restrictive...

To continue reading

Request your trial
48 cases
  • Daniels v. Area Plan Com'n of Allen County, 01-1158.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 11, 2002
    ...law, an inverse condemnation action is an action at law limited to monetary compensation. See Dible v. City of Lafayette, Page 457 713 N.E.2d 269, 274 (Ind.1999); Indiana Dept. of Transp. v. Southern Bells, Inc., 723 N.E.2d 432, 434 (Ind.Ct. App.1999). However, the manner in which the Plan ......
  • Bezingue v. Steuben Lakes Reg'l Waste Dist.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • December 14, 2020
    ...problem, whether it will serve a useful purpose, and whether another remedy is more effective or efficient. Dible v. City of Lafayette , 713 N.E.2d 269, 272 (Ind. 1999) (citing Volkswagenwerk, A.G. v. Watson , 181 Ind.App. 155, 390 N.E.2d 1082, 1085 (Ind. Ct. App. 1979) ). The determinative......
  • Leigh v. Village of Los Lunas
    • United States
    • Court of Appeals of New Mexico
    • August 11, 2004
    ...taken, "the owner of the property for whose benefit the restriction is imposed is entitled to compensation"); Dible v. City of Lafayette, 713 N.E.2d 269, 274 (Ind.1999) (concluding that restrictive covenants are property rights in the lots restricted and that the owners of those property ri......
  • First Am. Title Ins. Co. v. Calhoun
    • United States
    • Court of Appeals of Indiana
    • June 25, 2014
    ...or that the defendant has a factually unchallenged affirmative defense that bars the plaintiff's claim. Dible v. City of Lafayette, 713 N.E.2d 269, 272 (Ind.1999). “Like the trial court, we construe all evidence and resolve all doubts in favor of the non-moving party, so as to avoid imprope......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT