State v. Stefaniak
| Decision Date | 10 July 1968 |
| Docket Number | No. 1267S143,1267S143 |
| Citation | 238 N.E.2d 451,250 Ind. 631 |
| Parties | STATE of Indiana and State Highway Commission, Appellants, v. Bronislaw L. STEFANIAK and Dorothy J. Stefaniak, Appellees. |
| Court | Indiana Supreme Court |
John J. Dillon, Atty. Gen., Murray West, Thomas J. Kern, Deputy Attys. Gen., for appellants.
William J. Reinke, Jack C. Dunfee, Jr., Thornburg, McGill, Deahl, Harman, Carey & Murray, South Bend, for appellees.
This action was brought in the St. Joseph Circuit Court by appellees (plaintiffs) against appellants (defendants) to recover damages for an alleged 'taking' and deprivation of property rights under the inverse condemnation statute, Ind.Ann.Stat. § 3--1711 (1968 Repl.), and Ind.Ann.Stat. § 36--3105 (1949 Repl.) of the eminent domain law. The cause was tried by jury and a verdict was returned for appellees, plaintiffs below, in the sum of $4,000.00. Judgment was rendered accordingly and appeal was taken directly to this Court under the provisions of Ind.Ann.Stat. § 4--214 (1968).
The error assigned and relied upon by the appellants is the overruling of their motion for new trial which is as follows:
'Motion For New Trial
Come now the defendants, State of Indiana and State Highway Commission, by John J. Dillon, Attorney General, and Thomas J. Kern, Deputy Attorney General, and respectfully move the Court for a new trial in this cause for the following reasons:
1. Irregularity in the proceedings of the Court by which defendant was prevented from having a fair trial in this, to-wit:
The Court erred in the original interlocutory proceedings by overruling rhetorical paragraphs 1, 2, 3 and 4 of defendants' objections to Paragraph I of plaintiffs' complaint, which objections were in the nature of a demurrer to plaintiffs' complaint; the Court erred further in overruling rhetorical paragraphs 9 and 10 of defendants' objections to Paragraph I of plaintiffs' complaint.
The Court also erred in not sustaining defendants' Motion to Dismiss Paragraph II of plaintiffs' complaint.
2. Error of law occurring at the trial in that the Court failed to sustain defendants' motion for a directed verdict at the close of plaintiffs' opening statement.
3. Error of law occurring at the trial in that the Court failed to sustain defendants' motion for a directed verdict at the close of plaintiffs' evidence.
4. Error of law occurring at the trial in that the Court failed to sustain defendants' written motion for a directed verdict at the close of all the evidence in the case.
5. The verdict of the jury was not sustained by sufficient evidence and was contrary to law.
6. Error of law occurring at the trial as follows:
(a) The Court erred in giving to the jury over written objection by the defendants, plaintiffs' written preliminary instruction No. 1.
(b) The Court further erred in giving to the jury over objection by defendants, plaintiffs' written tendered instructions numbered 2, 3, 6 and 10.
WHEREFORE, defendants respectfully move the Court to grant them a new trial in this cause.'
Specifications of error one (1) and five (5) raise essentially the same question and were grouped together for argument by appellants. In essence, appellants' position is that appellees were and are merely inconvenienced, and that the damages are therefore too remote and inconsequential for the granting of compensation.
The record of evidence viewed most favorable to the appellees along with all reasonable inferences to be drawn therefrom, reveals the following:
Bronislaw and Dorothy Stefaniak, appellees, owned real estate at 56638 South Sundown Road, South Bend, Indiana (St. Joseph County). They purchased this real estate in 1952 and built a dwelling on it in 1955, a one story ranch type house with attached garage and breezeway which faced in a westerly direction. At that time Sundown Road, which runs north and south, was the only street adjacent to the dwelling and extended to Western Avenue and to Grant Road. Western Avenue and Grant Road run east and west and are parallel to each other. In order to get to Grant or Western, the Stefaniaks could either proceed north or south on Sundown Road.
Then in 1962, the State of Indiana, in constructing Highway 20 Bypass, dead-ended Sundown Road just north of appellees' property and dead-ended Sundown Road south of appellees' property at a point just before its intersection with Grant. To provide the residents of Sundown Road with access to Western and Grant, the State constructed Huron Street immediately to the south of appellees' property, thus placing appellees' dwelling in a cul-de-sac. Another access road, adjacent to the east of appellees' property, was also constructed. Subsequent to the State's highway construction, appellees could go to Western or Grant by going east on the specially constructed Huron Street to other roads which lead to Western or Grant.
Before the highway construction, appellees' lot was an inside lot. A South Bend zoning ordinance requires the dwelling, with regard to inside-lot side yards, to be at least ten (10) feet from the property borderline. As a result of the State's Construction of Huron Street, said lot has now become a corner lot. Under the South Bend zoning law, with regard to corner-lot side yards, the dwelling is required to be at least 35 (thirty-five) feet from the street line. Appellees' dwelling is only 10 (ten) feet from the Huron Street line and thus violates the zoning ordinance. There are now six zoning restrictions on the uses which appellees may make of their property which did not exist prior to the aforementioned construction. These additional restrictions are not waivable by the Board of Zoning Appeals and do not apply to other property which conforms to the zoning laws.
The bypass constructed by the State is somewhat elevated and a new limited access fence constructed just to the north of appellees' property causes drifts of snow to accumulate three or four feet high, blocking appellees' agress from their driveway. Appellees must maintain their own snow removal equipment to remedy this situation which did not exist before the construction.
The State also constructed a drainage ditch along the western and southern boundary of appellees' lot. On two occasions visitors immobilized their vehicles by driving into this ditch. The post office department ordered the appellees to move the mailbox from Sundown Road to Huron Street. Since the Stefaniak house now faces in an unorthodox direction, there has been a loss of privacy in their back yard.
Although the defense witness Bernard Bickel, building commissioner for St. Joseph County, testified that probably no enforcement action would be taken against the Stefaniaks for the technical violation of the zoning law, there is now a non-conforming use of the property, and the zoning law places certain restrictions on non-conforming buildings, namely: repairs and alterations, additions and enlargements, relocation of building or structure, restoration of damage, and expansion of use.
Plaintiffs' witness, Hubert Weaver, a real estate appraiser and realtor, testified that in his opinion the value of the Stefaniak property had suffered a $5,000 decrease in fair market value due to (1) restricted ingress and egress, (2) violation of the zoning ordinance, and (3) disqualification of the property for mortgage loan financing by reason of the zoning violation and the restricted access. Charles Keller, plaintiffs' witness, who had previously been retained by the State of Indiana to appraise the Stefaniak property, testified that in his opinion there was a loss of $3,500 in the value of the property due to the deadening of Sundown Road, but this appraisal did not consider the zoning violation.
A summary of the record reveals that the State of Indiana condemned land on all sides of the Stefaniak property thus placing the Stefaniak residence in an unorthodox position in relation to the abutting streets; the lot is now located on a cul-de-sac; and the dwelling is in violation of the South Bend zoning ordinances. The State of Indiana argues that, conceding the value of the Stefaniak property was reduced about $5,000, as a matter of law, the above stated 'damages' are not compensable under eminent domain law.
Article 1, § 21 of the Constitution of The State of Indiana provides:
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