Tuesday, February 09, 2016
Ind. Decisions - 7th Circuit decided Indiana case yesterday
In Robert Hoyt v. Michael Benham (SD Ind., Young), a 12-page opinion, Judge Posner writes:
Robert Hoyt—owner since 2001 of a 40-acre lot (on which there is a cabin) in a heavily forested region about an hour’s drive from Bloomington in southwestern Indiana—has a problem. His lot is surrounded by lots owned by others, and none of the others will allow him to use any part of their land to enable vehicular access to his property. No public roads touch his land. To reach a public road he has to be able to drive through at least one of the lots that surround him. The owner of the lot directly to his north allows him to walk through that lot to and from his lot, but that’s it so far as access is concerned. So Hoyt has turned to law, thus far unsuccessfully. * * *
He brought this suit to vindicate his claims in an Indiana state court in 2001, and later added claims against the Forest Service under both Indiana law and the federal Quiet Title Act, 28 U.S.C. § 2409a, and also (though just under Indiana law) against the owners of the other two roads. The Forest Service (technically the United States) removed the suit against it to federal district court in 2008. The district court retained supplemental jurisdiction over the private defend ants, 28 U.S.C. § 1367, and as far as we’re aware there’s been no further litigation in state court.
The district judge granted motions to dismiss or motions for summary judgment in favor of the defendants on some counts of the complaint, and entered judgment for them on the remaining counts after a bench trial. So Hoyt lost his case, and now appeals. * * *
So plainly there is no public road between Hoyt’s lot and the West Burma Road in the southern lot, and equally plainly he has no right to insist on free passage from his lot to the public road over the string of roads discussed in this opinion.
There are some other issues, but they are of no general significance and we’ll let their resolution by the district court stand without further discussion—with one exception. The owners of the southern lot ask us to award them fees under Fed. R. App. P. 38 to compensate them for the cost of opposing Hoyt’s appeal, on the ground that the appeal is frivolous. But to be entitled to such fees they would have had to ask for them in a separate motion, Heinen v. Northrop Grumman Corp., 671 F.3d 669, 671 (7th Cir. 2012), which they failed to do. And so their motion for fees is denied and the judgment of the district court is AFFIRMED
Posted by Marcia Oddi on February 9, 2016 09:21 AM
Posted to Ind. (7th Cir.) Decisions