Jennifer Nelson for www.theindianalawyer.com
A woman who sued after town and county officials worked on a drainage project on her property without her permission will be able to present her claim for inverse condemnation. The Indiana Court of Appeals reversed the dismissal of that claim in her lawsuit against officials but affirmed she acted too late to present a trespass claim.
The town of Yorktown and the Delaware County Drainage Board entered into an agreement to improve storm drainage in the area, which included Susan Snyder’s property. She did not give her consent for any additional right-of-way or easement for the project, but officials went ahead with the project in fall 2007. Snyder claims as a result of the work, the project has caused continuous damage to her property due to storm water, debris and pollutant run off flowing into the new drain and her property.
For four years, Snyder said she was unable to obtain information about what entity was responsible for the project, and she learned in 2011 that the drainage board had jurisdiction over it. Snyder filed her tort claim notice in March 2013 and her lawsuit in September 2013 alleging, among other things, trespass and unconstitutional partial taking. The trial court granted the defendants’ Trial Rule 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted.
In Susan A. Snyder v. Town of Yorktown, Delaware County Surveyor, Delaware County Drainage Board, Randall Miller & Associates, Inc., and Watson Excavating, Inc., 18A02-1405-CT-332, the judges agreed that the trespass claim should have been dismissed because Snyder’s tort claim notice was filed long after the 180-day notice period expired, regardless of whether the loss occurred in the fall of 2007 or in March 2012, when she claims she knew she “had been damaged†by the project.
But her unconstitutional partial taking claim, which the judges viewed as a claim for inverse condemnation, should not have been dismissed, Judge Terry Crone wrote. The defendants claimed it should be dismissed because she did not join her mortgagee, a known lienholder of the property, as a party to the action.
A complaint filed by the government or condemnor must include all the names of owners, claimants to and holders of liens on the property it seeks to take. The trial court reasoned that, regardless of whether the plaintiff is the government or a property owner, all lienholders have a right to know the property is subject to a condemnation action.
The failure by Snyder to include her mortgagee in her action is not grounds for dismissal, the judges held, pointing to the Indiana Supreme Court holding that the failure to name all interested parties is not a jurisdictional defect in condemnation actions. It may be corrected by allowing the mortgagee to intervene, or the opposing party may seek to join the absent party.
The case is remanded for further proceedings.
