Category: Indiana Eminent Domain

Indiana Lawmakers Dream They Can Control Railroad Use of Eminent Domain

In Indiana, legislators are attempting to enact substantial restrictions on the right of railroads to condemn for public use.

This is “barking up the wrong tree.” The place to stop any kind of condemnation by a railroad is not at the state level, but rather, it’s the Surface Transportation Board in Washington. Possibly this can be done, but a request for release from the Transportation Board is unlikely to succeed.

“House Bill 1260, sponsored by state Reps. Ed Soliday, R-Valparaiso, and Mike Aylesworth, R-Hebron, would obligate railroads to abide by the same “public use” mandate and property appraisal process employed by governments in forcing the sale of a home, farm or other land.
Soliday said existing Indiana law, originally written in the 19th century, gives railroads of just about any size almost unlimited use of eminent domain, including potentially taking land in state parks to build a rail line.

‘Under the current law you can just say, ‘I want to build a railroad; give me your land and I’ll pay you,” Soliday said. ‘(This) raises the bar that you do need to have a compelling public need for the eminent domain.’
Aylesworth indicated the legislation was inspired by the largely negative Region reaction to the plan by Great Lakes Basin Transportation to take a 200-foot wide corridor for its proposed 260-mile freight railroad connecting Northwest Indiana to southeast Wisconsin.”

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The Indiana Supreme Court Protects Property Rights


In a serious challenge to Due Process in basic eminent domain procedure in Indiana, the Indiana Supreme Court reversed the incorrect decision of a trial court and Indiana Court of Appeals affirmance.

The Opinion below provides an appropriate and well-reasoned explanation of how procedure is to apply in a fair fashion in eminent domain proceedings, noting the precedent of the strict construction in favor of the landowner. The Supreme Court recognized the rights bestowed upon owners under the Northwest Ordinance and subsequent Indiana state procedures. Also, for those interested in understanding the delegation, the citation below offers outstanding reading.

As an aside, one has to wonder whether the Fort Wayne Journal Gazette understands that "minutia" means that rights are to be specifically protected. See the writings in January, 2013.

In The Indiana Supreme Court

No. 90S04-1208-PL-450






Appellant (Petitioner below),




Owners Counsel of America Honors an Outstanding Lawyer


A graduate of the University of Arizona College of Law, Mr. Burling joined the Pacific Legal Foundation as an attorney in 1983. Over the last 3 decades, he has litigated cases involving regulatory takings, environmental and land use regulations, eminent domain, and Indian law. In 2001, Mr. Burling successfully argued a landmark property rights case, Palazzolo v. Rhode Island, 533 U.S. 606 (2001), before the United States Supreme Court. Palazzolo established that government is not freed from liability for regulatory infringements against property rights simply because the property might be transferred to a new owner.

Mr. Burling is the Chairman Emeritus of the Federalist Society’s Environmental Law and Property Rights Practice Group and a member of the American College of Real Estate Lawyers. He is a frequent lecturer at continuing legal education courses on topics such as the regulation of wetlands, eminent domain, and the taking of private property. He has also been a panelist at the Brigham-Kanner Property Rights Conference, including the 2011 international conference in Beijing, China. Mr. Burling is often invited to speak before community and property rights organizations on subjects ranging from the regulation of wetlands and endangered species, federal land policy, zoning, regulatory exactions, the public trust doctrine, and the condemnation of private property.

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James Burling, who has worked in the trenches on behalf of property owners for years, deservedly received the Owners Counsel of America 2013 Crystal Eagle Award, signifying his outstanding efforts on behalf of private property ownership. As the Director of Litigation for the Pacific Legal Foundation, Jim has been a pillar working on behalf of private property ownership, dealing with almost every relevant property rights case in our judicial system. He deservedly has received an award and is to be credited with the wonderful work he has done over the years.

Water Company Facing the Meat Cleaver

In setting up the public hearings requiring a response after holding pro-government hearings to acquire a portion of Aqua Indiana, Fort Wayne is setting up Aqua Indiana for a Star Chamber proceeding. However, numerous meetings ahead of time is an invitation for people to be revved up and angry without regard to whether the utility properly can service the community. This is a tough way for a utility invested in the community to fairly have the opportunity to respond. Is this process really required?

The Indiana Utility Regulatory Commission is requiring Aqua Indiana to improve its system in the event of another drought that could create what the commission deems an unacceptable fire protection risk because of the possibility of inadequate water pressure.

On Nov. 30, the IURC released the second phase of an audit evaluating the utility’s ability to meet challenges it faces serving southwest Fort Wayne residents during a drought.

City of Fort Wayne officials said the audit findings support a decision to move forward with the condemnation process. But the company believes it can make other arrangements with the city that would render condemnation unnecessary.

About 70 percent of Aqua Indiana’s 12,000 southwest Fort Wayne customers live within city limits, and Henry has said he is committed to helping them solve the water challenges they face.

Indiana Water Utility Fight Continues

The issue of whether a party may demand a jury trial is established in almost every jurisdiction. However, a northern Indiana water authority has taken a position that the factual determination of value can be established only by a judge. The notion is that the just compensation appeal is simply from a Board of Public Works’ administrative decision.

Despite the Journal Gazette article claim that the decision is likely to be upheld by the Supreme Court, do not be surprised if the notion that juries should determine value in Indiana condemnation proceedings is confirmed by the Indiana Supreme Court.

Fort Wayne Journal Gazette 

Though the state’s highest court will hear legal arguments Sept. 27, the court still will not set the price. The issue now before the court is a Utility Center appeal of a judge’s ruling that the judge will determine the price after a hearing, and the issue will not go to a trial before a jury. The Indiana Court of Appeals upheld that ruling, noting that the role of the lower court is to hear an appeal of the Board of Public Works’ administrative decision to set the price. The judge should examine how the board of works made its decision but not hear testimony and start from scratch in setting a price.

If the Indiana Supreme Court sides with the city, which seems likely, the case goes back to the county court. After that decision is inevitably appealed, the case could well go to the Supreme Court a third time.




Indiana Senate Passes Eminent Domain Compensation Bill

Although the Indiana Senate has now passed a bill that would directly help an individual’s fight against a university expansion, the proposed law must still be approved by the House and Governor.

Frequently, bills easily traverse one chamber of the legislature, only to face a myriad of problems in the second. This is the same type of issue that may occur in Virginia, as its legislature prepares to tackle eminent domain reform during the upcoming legislative session.

Muncie Free Press

The Senate voted 34-13 on the bill filed by Sen. Doug Eckerty, R-Yorktown, that would benefit his Good Government friend ChrisHiatt  who could lose his campus Hiatt Printing business to Ball State University. Sen. Tim Lanane, D-Anderson, voted against the bill that had been opposed by Ball State, Indiana University, Purdue University and others.

 Eckerty said the change would rectify present eminent domain law, which does not require universities to consider loss of future income when providing compensation to business owners. Universities now pay the fair market value of the building and property.