ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE
Douglas R. Denmure CITY OF LAWRENCEBURG
Aurora, Indiana Joseph W. Votaw, III
Lawrenceburg, Indiana
ATTORNEY FOR APPELLEE
LAWRENCEBURG CONSERVANCY DISTRICT
Richard A. Butler
Lawrenceburg, Indiana
ATTORNEYS FOR APPELLEE
INDIANA GAMING, L.P.
Peter J. Rusthoven
Jan M. Carroll
E. Timothy DeLaney
Indianapolis, Indiana
______________________________________________________________________________
FILED
In the Apr 20 2010, 12:22 pm
Indiana Supreme Court CLERK
of the supreme court,
court of appeals and
_________________________________ tax court
15S04-0907-CV-310
GLORIA A. MURRAY, ET AL.,
Appellants (Plaintiffs below),
v.
CITY OF LAWRENCEBURG, ET AL.,
Appellees (Defendants below).
_________________________________
Interlocutory Appeal from the Dearborn Circuit Court, No. 15C01-0511-PL-75
The Honorable James D. Humphrey, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 15A04-0803-CV-122
_________________________________
April 20, 2010
Boehm, Justice.
We hold that inverse condemnation is the sole remedy for a governmental act that
purports to exercise all rights of ownership over a parcel of land. We also hold that the six year
statute of limitations for trespass applies to such a claim. As a result, the statute of limitations
bars the plaintiffs’ suit in 2005 seeking to claim ownership of land leased in 1997 by the City of
Lawrenceburg to a private party.
Facts and Procedural History
Because this is an appeal from the denial of a motion for judgment on the pleadings, we
accept the allegations of the complaint as true. Plaintiffs claim ownership of a 0.768 acre parcel
of land located within a 32.074 acre parcel in Lawrenceburg. The larger parcel serves as the
Ohio River docking site of the Argosy Casino operated by Indiana Gaming Company, L.P.
Plaintiffs claim to be successors in interest to the tenants in common who were grantees in an
1886 deed to the disputed parcel. Plaintiffs allege that from 1941 to 1995, the parcel had been
labeled on the Lawrenceburg Flood Control District Land Acquisition Map as having an
“unknown” owner, and during that time no one else had claimed or established ownership over
the parcel. There is no allegation that any plaintiff asserted any rights in the property during that
period.
The complaint alleges the following other relevant facts. On December 28, 1995, the
Lawrenceburg Conservancy District leased the 32.074 acre parcel to the City of Lawrenceburg.
The lease warranted title except for the disputed parcel. On February 1, 1996, the Central
Railroad Company of Indiana gave the City a quitclaim deed for those 0.768 acres accompanied
by an affidavit stating that it obtained title to the parcel through an 1865 deed from the White
Water Valley Canal Company. The City subleased the entire 32.074 acres, including the
disputed parcel, to Indiana Gaming on August 20, 1996, and Indiana Gaming began operations at
the site in December 1997.
On November 21, 2005, more than six but less than ten years after the lease to Indiana
Gaming, plaintiffs filed this suit against the City, the Conservancy District, and Indiana Gaming.
The suit sought to quiet title to the disputed parcel, eject the defendants, and set aside the
quitclaim deed and the leases. It also requested compensation for lost rent under negligence and
unjust enrichment theories. A jury trial was demanded.
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Defendants moved for judgment on the pleadings pursuant to Indiana Trial Rule 12(C),
arguing that even if plaintiffs owned the parcel, their only cause of action was inverse
condemnation which was barred by the six year statute of limitations for injury to real property.
The trial court denied the motion but certified its order for interlocutory appeal. The Court of
Appeals did not accept that appeal, but later accepted this second interlocutory appeal by
plaintiffs from the trial court’s subsequent denial of their demand for a jury trial.
Defendants cross-appealed, again seeking appellate review of the trial court’s denial of
their motion for judgment on the pleadings based on the statute of limitations. The Court of
Appeals allowed defendants’ cross-appeal to proceed, but rejected the merits of defendants’
claim to judgment on the pleadings, ruling that plaintiffs “were not required to bring a claim for
inverse condemnation, because inverse condemnation is not an exclusive remedy and because
ownership of the Disputed Property has not yet been determined.” Murray v. City of
Lawrenceburg, 903 N.E.2d 93, 107 (Ind. Ct. App. 2009). The Court of Appeals also held that
plaintiffs were entitled to a jury trial. Id. at 107–08. We granted transfer.
I. The Propriety of Defendants’ Cross-Appeal
The right to a jury trial is the only issue presented by the order of the trial court that
produced this appeal. A threshold issue is whether the ruling on the motion for judgment on the
pleadings is now before us.
Pursuant to Indiana Appellate Rule 14(B), if a trial court certifies an order for
interlocutory appeal, the Court of Appeals has discretion to accept or reject the appeal, and the
Court of Appeals refused to entertain the limitations issue when it was first certified. Murray v.
City of Lawrenceburg, 903 N.E.2d 93, 97–98 (Ind. Ct. App. 2009). In this second attempt to
present the statute of limitations issue in an interlocutory appeal, the Court of Appeals
acknowledged that in a discretionary interlocutory appeal it normally considers only issues raised
by the trial court’s order that is the subject of the appeal. Id. at 98–100. The Court of Appeals
noted, however, that the issue presented by defendants’ cross-appeal had previously been
certified by the trial court for interlocutory appeal. Id. at 99 (citing Harbour v. Arelco, Inc., 678
N.E.2d 381, 386 (Ind. 1997)). Moreover, the Court of Appeals found precedent for
reconsideration of a motion to accept an interlocutory appeal, and held that it may reconsider any
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ruling while an appeal is pending. Id. at 99 (citing Bridgestone Americas Holding, Inc. v.
Mayberry, 854 N.E.2d 355, 359–60 (Ind. Ct. App. 2006), trans. granted, summarily aff’d in
relevant part by 878 N.E.2d 189, 191 n.2 (Ind. 2007); Miller v. Hague Ins. Agency, Inc., 871
N.E.2d 406, 407 (Ind. Ct. App. 2007), reh’g denied). Finally, because defendants’ motion may
be dispositive of the case and moot the jury issue, the Court of Appeals exercised its discretion to
entertain the issue raised by defendants. Id. at 99–100.
II. Defendants’ Motion for Judgment on the Pleadings
We review de novo a trial court’s ruling on a Rule 12(C) motion for judgment on the
pleadings. We accept as true the well-pleaded material facts alleged in the complaint, and base
our ruling solely on the pleadings. Noblesville Redevelopment Comm’n v. Noblesville Assocs.
Ltd. P’ship, 674 N.E.2d 558, 562 (Ind. 1996). A Rule 12(C) motion for judgment on the
pleadings is to be granted “only where it is clear from the face of the complaint that under no
circumstances could relief be granted.” Forte v. Connerwood Healthcare, Inc., 745 N.E.2d 796,
801 (Ind. 2001) (quoting Culver-Union Twp. Ambulance Serv. v. Steindler, 629 N.E.2d 1231,
1235 (Ind. 1994)).
Defendants’ claim to judgment on the pleadings turns on two issues: whether inverse
condemnation is the only remedy available to plaintiffs, and, if so, what statute of limitations
applies to a claim for inverse condemnation.
A. Inverse Condemnation
The state has inherent authority to take private property for public use. Kelo v. City of
New London, 545 U.S. 469, 477 (2005). The Indiana Constitution and the Fifth Amendment
require just compensation if this authority is exercised. Schnull v. Indianapolis Union Ry. Co.,
190 Ind. 572, 575, 131 N.E. 51, 52 (1921). Indiana Code Chapter 32-24-1 (2004) outlines the
process by which the state is to initiate eminent domain proceedings. If the government takes
property but fails to initiate proceedings, Section 32-24-1-16 explicitly allows an owner of
property acquired for public use to bring a suit for inverse condemnation to recover money
damages:
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A person having an interest in property that has been or may be acquired for a
public use without the procedures of this article or any prior law followed is
entitled to have the person's damages assessed under this article substantially in
the manner provided in this article.
An action for inverse condemnation requires: “(1) a taking or damaging; (2) of private property;
(3) for public use; (4) without just compensation being paid; and (5) by a governmental entity
that has not instituted formal proceedings.” 29A C.J.S. Eminent Domain § 560 (2007).
Plaintiffs argue as a threshold contention that inverse condemnation is inappropriate
because the title to the parcel is clouded. They claim that a quiet title action is therefore the
appropriate means to establish the rightful owner. We disagree. Ownership of an interest in the
property is an element of a claim for inverse condemnation. If plaintiffs did not own the parcel,
they had no claim at all. If they did own it, then the remedy was inverse condemnation.
The complaint alleges, correctly, that both the Conservancy District and the City are
governmental entities. It also alleges that in 1996 a quitclaim deed was recorded purporting to
convey title to the City, and since December of 1997 the parcel has been occupied by the City’s
lessee. This is an allegation that the government exercised ownership rights over the disputed
parcel and deprived the plaintiffs of all use of it. As such, it was a proper subject for an inverse
condemnation action at least by the end of 1997. The issue then becomes whether inverse
condemnation is plaintiffs’ exclusive remedy, or whether the complaint alleges some other viable
theory.
The complaint seeks damages for the allegedly unlawful occupation of this parcel, and
also seeks injunctive relief to, in effect, unwind the transactions in 1996 and 1997 that resulted in
the lease to Indiana Gaming. In Dible v. City of Lafayette, 713 N.E.2d 269 (Ind. 1999),
landowners sought declaratory and injunctive relief against the city regarding sewage and
drainage structures built on their property. We found that “[e]quitable relief is not available to
enjoin an alleged taking of private property for a public use, duly authorized by law, when a suit
for compensation can be brought against the government entity subsequent to the taking.” Id. at
273. In Indiana Department of Transportation v. Southern Bells, Inc., 723 N.E.2d 432 (Ind. Ct.
App. 1999), business owners sought to enjoin the construction of a median that would prevent
traffic from reaching access roads leading to their businesses. The court concluded that
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“[a]lthough injunctive relief may be necessary to remedy interference with landowner rights for a
private purpose, where an alleged taking occurs for what is clearly a public purpose, equitable
relief is generally unavailable as a matter of law where an action for compensation can be
brought subsequent to the taking.” Id. at 434 (citing Dible, 713 N.E.2d at 273). These decisions
make clear that injunctive relief is not available to prevent a taking for a public purpose. They
proceed from the premise that inverse condemnation provides a remedy at law that adequately
compensates for a taking and precludes equitable relief. Carl W. Grow, Note, Inverse
Condemnation and the Right of Access of Abutting Property Owners, 9 Ind. L. Rev. 859, 860 &
n.6 (1976). Although we find little direct authority on this point, we think the same reasoning
applies to attempts to reverse a completed taking. Eminent domain proceedings include
provisions designed to compensate the landowner but also to permit the public need to be
satisfied relatively quickly and at no more than a fair price. Id. at 861 & n.9 (citing Roger
Arnebergh, Recent Developments in the Law of Inverse Condemnation, in 1974 Proceedings of
the Institute on Planning, Zoning, and Eminent Domain 319, 322 (1974)). To allow alternative
remedies would circumvent these provisions.
Plaintiffs cite Calumet National Bank v. AT&T, 682 N.E.2d 785, 791 (Ind. 1997), which
allowed a trespass action against a private utility that had constructed fiber optic cable lines
using an abandoned railroad right-of-way over the bank’s land, for the proposition that “inverse
condemnation is not an exclusive remedy.” The issue in that case was whether a taking had
occurred. The same was true of Indiana & Michigan Electric Co. v. Whitley County Rural
Electric Membership Corp., 160 Ind. App. 446, 312 N.E.2d 503 (1974), which Calumet National
Bank cited to support the quoted language. Moreover, both Calumet National Bank and Indiana
& Michigan Electric Co. were disputes between private parties. One involved a utility easement
and the other turned on whether eminent domain was available for one utility to condemn a yet
undeveloped franchise of another utility. Calumet National Bank also cited an article surveying
the availability of pre-taking trespass claims in addition to inverse condemnation for the value of
the property taken in various jurisdictions. George H. Genzel, Annotation, Award of, or Pending
Proceedings for, Compensation for Property Condemned, as Precluding Action for Damages
Arising from Prior Trespasses Upon It, 33 A.L.R.3d 1132 (1970). Neither Calumet National
Bank nor the authorities it cited addressed an attempt to undo a governmental act after the fact,
or the availability of a damage remedy for a governmental taking of ownership of land freed
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from the procedures of eminent domain. Moreover, as will be seen in Part B, even if a trespass
claim were allowed, it would not help plaintiffs here because the same limitation statute applies
to both inverse condemnation and to trespass on land. We conclude that inverse condemnation is
the only remedy for government’s exercising complete dominance and purported ownership of a
piece of land.
Plaintiffs also argue that inverse condemnation is inapplicable here because the taking
was not for a public use. Defendants respond that providing public routes of access to a private
business is a public use. Plaintiffs are correct that, if there were no public use, neither eminent
domain nor inverse condemnation would apply. But we readily find a public use here. Whether
a particular use is a public use is a question for the courts to determine. 11A Ind. L. Enc.
Eminent Domain § 10, at 254 (2007). Specifically, in Indiana, the taking of private land to
develop public access to private casinos has been held to be a public use. E.g., City of
Hammond v. Marina Entm’t Complex, Inc., 733 N.E.2d 958, 962 (Ind. Ct. App. 2000). Other
jurisdictions have also reached similar conclusions. See, e.g., Detroit v. Detroit Plaza Ltd.
P’ship, 730 N.W.2d 523, 527 (Mich. Ct. App. 2006); City of Atlantic City v. Cynwyd Inv., 689
A.2d 712, 713–14 (N.J. 1997).
B. The Statute of Limitations for Inverse Condemnation
Defendants argue that this case is barred by the six year limitation period for “Actions for
injuries to property other than personal property.” I.C. § 34-11-2-7(3). Plaintiffs contend the
residual ten-year limitation period applies. I.C. § 34-11-1-2(a).
No limitation period applies to an eminent domain proceeding by the state. To the extent
plaintiffs have a claim, it is an inverse condemnation claim by the alleged owners. Acts
constituting unlawful occupation of land by a public agency would be a trespass if committed by
a private entity. In both cases, a party without an interest in the property physically disturbs and
injures the property. A trespass action has long been held to be governed by the six year
limitations period. E.g., Pickett v. Toledo, St. Louis & Kansas City R.R. Co., 131 Ind. 562, 31
N.E. 200 (1892) (applying the predecessor to I.C. § 34-11-2-7). In the most recent case on point,
Scates v. State, the State offered the landowner compensation for land taken to build a highway,
but the parties did not agree on valuation. 178 Ind. App. 624, 624–25, 383 N.E.2d 491, 492
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(1978). When the landowner sued for compensation seventeen years after the action accrued, the
Court of Appeals applied the residual ten-year limitation period. Id. at 625, 383 N.E.2d at 492–
493. The Court noted, however, that “[i]f the State did not formally institute eminent domain
proceedings,” the State’s presence on the land would be “of the nature of a trespass or inverse
condemnation,” and therefore a six year limitation would have applied. Id. at 625 n.2, 383
N.E.2d at 492 n.2 (citation omitted). Accordingly, we agree with the Court of Appeals that the
six year limitation for trespass applies to inverse condemnation actions. See Murray v. City of
Lawrenceburg, 903 N.E.2d 93, 101 (Ind. Ct. App. 2009) (citing Scates, 178 Ind. App. at 625 n.2,
383 N.E.2d at 492 n.2).
Plaintiffs’ action accrued when they could have brought a claim for inverse
condemnation. 18 Ind. L. Enc. Limitation of Actions § 30, at 622–24 (2003). Giving plaintiffs
the benefit of the doubt, the last possible date the action could have accrued was December 1997,
when Indiana Gaming began operations at the site.1 Plaintiffs did not file this suit until
November 21, 2005, almost eight years after the action accrued. Accordingly, plaintiffs’ claim is
barred by I.C. § 34-11-2-7.
Conclusion
The trial court’s order denying defendants’ motion for judgment on the pleadings is
reversed. The case is remanded with instructions to enter judgment for defendants.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.
1
Plaintiffs argue that a “discovery rule” should apply and therefore the cause of action did not accrue until
December of 2003. “Under Indiana's discovery rule, a cause of action accrues, and the statute of limitations begins
to run, when the plaintiff knew or, in the exercise of ordinary diligence, could have discovered that an injury had
been sustained as a result of the tortious act of another.” Doe v. United Methodist Church, 673 N.E.2d 839, 842
(Ind. Ct. App. 1996), trans. denied, (citing Wehling v. Citizens Nat’l Bank, 586 N.E.2d 840, 843 (Ind. 1992)). Even
if the discovery rule applied, plaintiffs in exercising ordinary diligence would have discovered the injury when the
casino began its operations at the docking site in December of 1997.
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