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Sunday, March 23, 2008
Ind. Decisions - "Condo owners fail to win damages: Claimed Kamm Island span blocked their river view"
Reporting on the Court of Appeal's March 20th opinion in Center Townhouse Corp et. al. v. City of Mishawaka (ILB entry here, 3rd case), Marti Goodlad Heline writes today for the South Bend Tribune:
Five years ago, owners of condominiums near Kamm Island hired an attorney to attempt to stop the city from building a bridge they said would interfere with their view of the St. Joseph River.After five years of litigation, they are no better off than when they started. A ruling from the Indiana Court of Appeals in Indianapolis affirmed a jury verdict that gave no monetary damages to the owners.
A request for an injunction failed and the pedestrian bridge to Kamm Island was built as part of Mishawaka's Riverwalk.
The Schellinger Square condominium owners' 2002 lawsuit in St. Joseph Circuit Court also sought compensation from the city of Mishawaka for what they said was an unlawful taking of their property to build the bridge.
The first trial in the lawsuit took place in 2004. The ruling by then-Circuit Court Magistrate David Chapleau found the owners of the condos, located behind the 100 Center, were entitled to compensation for their loss of their "riparian" rights to freely use the water adjacent to their shoreline but not for their loss of a scenic view.
A second trial in 2006 was held to determine what damages, if any, were owed the five owners. After appraisals were done following the ruling in the 2004 trial, the owners insisted they were owed at least $145,000 from the city of Mishawaka.
The owners maintained the bridge not only interfered with their view of the river but restricted where they could swim, cast a fishing line or use a pontoon boat on the river or build a pier.
At the second trial in 2006, the jury found the loss was too minimal, so the city of Mishawaka owed no monetary damages to the owners.
That was despite a ruling that the city's action amounted to an "inverse condemnation" by the city because the bridge did affect the owners' rights to fully use their property, according to the 2004 ruling.
Both sides appealed after the 2006 verdict. The owners challenged the zero verdict and the instructions the jury was given. The city of Mishawaka challenged the ruling that an involuntary taking of property occurred.
In a 17-page ruling issued Thursday, the Indiana Court of Appeals upheld the jury verdict and prior rulings by Circuit Judge Michael Gotsch and Chapleau.
The appellate judges said the city failed to meet the burden to show the ruling was in error that Mishawaka had taken the owners' riparian rights involuntarily.
The appellate court also found the ruling issued was correct in that riparian rights do not include an unobstructed view of water. There was no problem with the jury instructions, the appeals judges said.
Either side may ask the Indiana Supreme Court to review the case, but that court is under no obligation to do so.
Posted by Marcia Oddi on March 23, 2008 11:11 AM
Posted to Ind. App.Ct. Decisions