16 Apr 10
State’s right to take for an access road
The State does not have a right to take where the State takes land from a property owner to provide one other property owner access to their land.
Summary of State of Indiana v. Gordon Smith and Joan Smith, et al.
381 N.E.2d 873 (Ind. Ct. App. 1978)
In the mid-1970s, the State of Indiana constructed an access ramp for Interstate 65, subsequently reducing the width of Market Street in downtown Indianapolis. Modern Photo Offset Supply Company, a business located in the area, often utilized an alleyway off of Market Street. However, when the State created its access ramp and narrowed Market Street, Modern Photo’s delivery trucks were no longer able to maneuver into the alleyway. The company had a conference with representatives from the Indiana State Highway Commission. And in June of 1975, the Commission prepared to acquire a tract of land, deemed “parcel #4”, which would make it possible for Modern Photo’s trucks to once again use the alleyway off of Market Street. The Commission, and ultimately the State of Indiana, attempted to acquire ownership of parcel #4 from private landowners through its power of eminent domain.
There was one problem, however. Under the laws of Indiana, the State may only acquire land through eminent domain for a “public use.” The private landowners argued that the attempted taking by the State was for a private use, in essence, for Modern Photo’s delivery trucks.
The State, on the other hand, cited to prior case law, specifically Andrews v. State, 229 N.E.2d 806 (1967). The Court in Andrews held that “providing a service road to a land-locked owner. . . would reduce the damages payable to that owner and therefore would constitute a public use.”
The Indiana Court of Appeals upheld the lower court’s determination, siding with the private landowners in ownership of parcel #4. The Court distinguished the case at hand from Andrews. It noted that the State became interested in parcel #4 only after Modern Photo talked with representatives from the Commission and then it established dimensions for the take based on the dimensions of semi-tractor trailers as used by Modern Photo. Also, the Court reaffirmed private property as “an integral part of the freedom, security and independence we enjoy.” It further stated that “[t]he State must not capriciously resort to the power of eminent domain when other suitable and perhaps less expensive alternatives are available to contend otherwise is to repudiate our time honored concept of private property and the paramount value we place upon it.”
Liz Currid
