Jeffrey S. Dible
Jerome L. Withered
Attica, IndianaAttorneys for Appellee
Angela M. Service
Withered & Corrigan
Jeffrey S. Dible
Jerome L. Withered
LEONARD F. and BARBARA H. DIBLE,
Appellant (Plaintiff below),
CITY OF LAFAYETTE,
Appellee (Defendant below).
) Supreme Court No.
) Court of Appeals No.
Leonard and Barbara Dible sought declaratory and injunctive relief requiring the City of Lafayette to remove sewage and drainage structures it built on a City easement on the Dibles' property. The trial court granted summary judgment in favor of the City. The Court
of Appeals reversed, holding the Dibles were entitled to pursue their claim as a public
lawsuit. We conclude that if the Dibles are entitled to any relief, it is for inverse condemnation.
When the Dibles purchased this lot in 1971, there was a sewage lift station on a
triangular utility easement, which extended onto part of the ravine. In 1978, the City of
Lafayette accepted responsibility for the lift station from the original developers of the
subdivision and became the holder of the utility easement on the Dibles' property. In 1992,
the City determined that the lift station needed to be replaced and began construction on two
projects to improve the subdivision's drainage and sewage systems that affected Dibles'
property. The first project involved the installation of new storm sewer drains and the
second entailed the construction of a new lift station on the site of the old station.
The City began excavation of the station site on June 27, 1994. On June 29, 1994,
the Dibles filed this lawsuit, alleging that the construction exceeded the City's easement,
violated restrictive covenants, and constituted an unlawful taking of the Dibles' property.
The Dibles sought declaratory relief and requested that the trial court issue a preliminary
injunction halting any additional construction. After several continuances and one change
of judge, the trial court set a trial date of October 24, 1994. Trial was subsequently continued to February 13, 1995. However, the City completed construction of the lift station in
The Dibles amended their complaint to request a mandatory injunction requiring the City to remove those portions of the lift station that represented an unlawful misuse of a
utility easement and an unlawful taking of [Dible's] property without just compensation.
The City moved for summary judgment in December, 1995, contending that (1) the Dibles
had failed to exhaust their administrative remedies, and (2) the City had constructed the lift
station entirely within existing drainage and utility easements and had not encroached on the
Dibles' property. In opposition, the Dibles tendered an affidavit from an expert witness,
who opined that the lift station's design and construction were wasteful and of no public
The trial court granted the City's motion for summary judgment.See footnote
appealed and the Court of Appeals reversed. In its remand order, the Court of Appeals
directed that the suit proceed as a public lawsuit. Dible v. City of Lafayette, 678 N.E.2d
1271 (Ind. Ct. App. 1997).
Volkswagenwerk, A.G. v. Watson, 390 N.E.2d 1082, 1085 (Ind. Ct. App. 1979) (citations
omitted). The use of a declaratory judgment is discretionary with the court and is usually
unnecessary where a full and adequate remedy is already provided by another form of
action. However, according to [Ind.Trial Rule 57], 'The existence of another adequate
remedy does not preclude a judgment for declaratory relief in cases where it is appropriate.' Id. (citations omitted).
Requests for mandatory injunctions are subject to similar considerations.
The Dibles advance a wide assortment of bases for the relief they seek. Central
among these claims is the allegation that the City's construction of the sewage lift station _
in particular the altering and filling in the natural ravine _ misused easements, violated
restrictive covenants running with the land, and constituted an unlawful taking of their
property. (Appellant's Br. at 2).
A restrictive covenant constitutes a compensable interest in land. Pulos v. James, 261 Ind. 279, 283, 302 N.E.2d 768, 771 (1973), see also Adman Mutual Water Co. v. United States, 278 F.2d 842, 849 (9th Cir. 1960) (concluding that under Fifth Amendment, a restrictive covenant imposes a duty running with the land and constitutes compensable interest). Such a covenant is not enforceable against an entity with the power of eminent
domain _ at least to the extent that the entity's use is for a public purpose. See footnote
But if that
entity's use violates the restrictions of the covenant, there is a taking that entitles the owners
to compensation. See Carolina Mills v. Catawba County Bd. of Educ., 219 S.E.2d 509, 511
(N.C. 1975) (enforcing a restrictive covenant against condemning authority would defeat the
purpose of eminent domain, but use of property _ whether purchased or condemned _
violating a restrictive covenant, constitutes taking and entitles an owner to compensation);
Horst v. Housing Auth., 166 N.W.2d 119, 120 (Neb. 1969) (holding that condemnation of
land extinguishing restrictive covenant constitutes taking that entitles owners to compensation); Town of Stamford v. Vuono, 143 A.2d 245, 249 (Conn. 1928) (holding that taking of
property subject to restrictive easement entitles an owner of property for whose benefit
restriction is imposed to compensation); see also R.E. Barber, Annotation, Eminent Domain:
Restrictive Covenant or Right to Enforcement Thereof as Compensable Property Right, 4
A.L.R.3d 1137, 1141 (1966).
Given the public purpose of the City's lift station construction and other sewer
improvements,See footnote 4 if and to the extent they constituted any taking of the Dibles' property, the Dibles would be entitled to just compensation.See footnote 5 But for this there existed an adequate legal remedy at their disposal: a suit for inverse condemnation. See Ind. Code § 32-11-1-12;See footnote 6 see also VanKeppel v. County of Jasper, 556 N.E.2d 333, 337 (Ind. Ct. App. 1990) (finding that the appropriate remedy for a public taking of private land is a damage claim in inverse condemnation). Equitable 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. Town Board of Orland v. Greenfield Mills, 663 N.E.2d 523, 528, n.7 (Ind. 1996) (citing Ruckleshaus v. Monsanto, 467 U.S. 986, 1016, 104 S.Ct. 2862, 2880, 81 L.Ed.2d 815 (1984)); see also Victor Oolitic Stone Co. v. CSX Transp., Inc., 852 F. Supp. 721, 724, n.1 (S.D. Ind. 1994) (holding that property owners were not entitled to injunctive relief based on alleged taking where suit for compensation could be brought against county subsequent to taking). Because the facts of this case clearly present such an instance, we conclude that declaratory and injunctive relief
is unavailable to the Dibles.See footnote
This is not to say that municipalities may infringe upon the property interests of
private citizens with impunity. Our precedents, and today's holding, clearly indicate that
where a governmental entity violates restrictive covenants in furtherance of a public use or
purpose, that violation is a taking for which compensation must be paid. Although injunctive relief may be necessary to remedy interference with landowner rights for a private
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.See footnote
Again, we make no determination as to whether there
was a taking in this instance. However, to the extent there was a taking, an inverse condemnation action provides the proper remedy.
A public lawsuit is any action whereby the validity, location, wisdom, feasibility, extent or character of construction, financing or leasing of any public improvement by any municipal corporation is questioned directly or indirectly, including but not limited to suits for declaratory judgments or injunctions to declare invalid or to enjoin such construction,
financing or leasing . . . . Ind. Code § 34-4-17-1(b) (1993).See footnote
The public lawsuit statute
was designed to protect municipalities from 'a flood of harassing litigation which obstructs
and delays public improvement.' Huber v. Franklin County Sch. Bd. of Trustees, 507
N.E.2d 233, 236 (Ind. 1987) (quoting Barnett v. City of Indianapolis, 158 Ind. App. 1, 5,
301 N.E.2d 526, 528 (1973)). The ability to bring a public lawsuit as a class action neither
confers new rights on the litigants nor affords them new remedies. Id. (citing Hatcher v. Bd.
of Commrs. of Lake County, 155 Ind. App. 27, 290 N.E.2d 801 (1972)). The goal of the
public lawsuit statutes is to end costly serial litigation. Id.
The Court of Appeals, sua sponte, declared the Dibles' lawsuit a public lawsuit. We find the court's determination improper under these circumstances for two reasons. First, the Dibles have not brought suit in their capacity as taxpayers. Rather, they seek a mandatory injunction to protect their private property rights as created by a restrictive covenant. And as we have held previously, an action by an individual landowner seeking to protect his
or her private interest in property does not constitute the basis for a public lawsuit. See
Pepinsky v. Monroe County Council, 461 N.E.2d 128, 132-33 (Ind. 1984) (controlling
factor is whether plaintiff seeks to protect public or private interest); see also City of Elkhart
v. Curtis Realty Co., 253 Ind. 619, 627, 256 N.E.2d 384, 388 (1970) (Public Lawsuit
Statute does not apply to appellee's suit wherein it challenges, as a landowner, the legality
of the board proceedings which are part of and so closely related to the exercise by the
appellant of its power of eminent domain to take appellee's land.). Second, we believe it
unfair to impose the requirements of the public lawsuit statute upon the Dibles where an
adequate and less onerous remedy at law is available. We hold the Court of Appeals's
directive to the trial court that the Dibles' action proceed as a public lawsuit erroneous.
SHEPARD, C.J., and DICKSON, SELBY, and BOEHM, JJ., concur.
There is no question that there is a valid public purpose for the lift station in this case;
that the project was properly authorized by the Lafayette Board of Public Works; and
that the necessary approval and permits were obtained from the [Drainage Board]
and [IDEM]. . . . The public purpose of this project having been established, the
Court may not substitute its judgment for that of the City and its agents in regard to
the design, engineering, size or scope of the project. Injunctive relief to force the
City to change the design, engineering, size or scope of the project is not appropriate.
(R. at 42-43.)
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