Daily Development for Thursday, September 4, 2008
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Husch Blackwell Sanders
Kansas City, Missouri
EMINENT DOMAIN; INVERSE CONDEMNATION; RIGHTS OF VIEW: The right to an unobstructed view of a river is not part of the bundle of riparian rights belonging to landowners along the banks of that river and thus city’s construction of a bridge that obstructs the view of riverfront homeowners is not a compensable taking.
Center Townhouse Corp. v. City of Mishawaka, 882 N.E. 2d 762 (Ind. App. 2008).
City had plans to build a pedestrian bridge to connect a city-owned park on the banks of the St. Joseph River to Kamm Island, a small, city-owned island in the middle of the river. Landowners, are part of CTC, the condominium association for the Schellinger Square building, a condominium complex on the banks of the St. Joseph River. The owned townhouses facing the river. The bridge would run parallel to the face of their structures, and block the first floor river view (although the second and third floors of the townhouses had views over the bridge.
Landowners brought an inverse condemnation action against the City and sought a preliminary injunction to prevent construction of the bridge. The trial court denied the request for preliminary injunction and the City proceeded with the construction of the bridge. Consequently, a bench trial considered whether the construction of the bridge represented a constitutional taking and issued findings of fact and conclusions of law that held that “the City had taken the Landowners’ riparian rights without just compensation as required by the Indiana and United States Constitutions.”
The City filed a motion to reconsider the trial court’s findings of fact and conclusions of law, arguing that this was not a taking because Indiana did not recognize a right to an unobstructed view as a part of the bundle of riparian rights belonging to landowners along a river. The trial court partially granted the motion to reconsider, “changing only its ruling with respect to the existence of a right to a view” The court continued, “[a]lthough a right to a view may exist in Indiana for riparian right owners, it is best left to an appellate court to pronounce that right.” Again, the City moved to reconsider the trial court’s second conclusions of law but the trial court denied the motion.
The trial court then instructed previously-appointed appraisers “to assess the amount of just compensation owed to the Landowners as a result of the taking.” The appraisers issued their report. All parties were dissatisfied with the appraisers’ report and filed exceptions to the report and demanded a jury trial. A jury trial proceeded on the sole issue of the appropriate amount of damages; the jury returned a verdict of zero damages and both parties appealed.
The Indiana Court of Appeals acknowledged that “riparian rights are property rights that cannot be constitutionally taken without just compensation.” It then acknowledged that “some courts in other states [e.g., Florida, Mississippi, New Jersey, and Georgia] have recognized a right to an unobstructed view of (variously) ocean or river or waterway as a legally protected use.” The court then concluded that it was not willing to find that a right to an unobstructed view was part of the bundle of riparian rights belonging to landowners along rivers in Indiana. The court reached this conclusion because it found the inquiry as to the extent of such a right and the definition of obstruction to be too difficult to determine due to the highly subjective nature of such an inquiry. The court affirmed the jury verdict of zero damages. The court then stated that the legislature was the more appropriate body to determine whether a right to an unobstructed view was part of the bundle of riparian
rights belonging to landowners along rivers in Indiana.
Comment: The editor was amazed to find that so many courts have recognized loss of view as compensable. It is not clear that these cases are based upon water rights or simply on loss of view itself. In either case, the potential for mischief for such a rule, both in private and governmental affairs, is evident. As society gets more and more complex and population more dense, the cost of view protection will become very high.
Readers are encouraged to respond to or criticize this posting.
Items reported on DIRT and in the ABA publications related to it are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data provided and opinions expressed by the DIRT editor the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.
Parties posting messages to DIRT are posting to a
source that is readily accessible by members of
the general public, and should take that fact
into account in evaluating confidentiality
DIRT is an internet discussion group for serious
real estate professionals. Message volume varies,
but commonly runs 5 - 15 messages per work day.
Daily Developments are posted every work day. To
subscribe, send the message
subscribe Dirt [your name]
To cancel your subscription, send the message
signoff DIRT to the address:
for information on other commands, send the message
Help to the listserv address.
DIRT has an alternate, more extensive coverage that includes not only
commercial and general real estate matters but also focuses upon residential real estate matters. Because real estate brokers generally find this service more valuable, it is named “BrokerDIRT.” But residential specialist attorneys, title insurers, lenders and others interested in the residential market will want to subscribe to this alternative list. If you subscribe to BrokerDIRT, it is not necessary also to subscribe to DIRT, as BrokerDIRT carries all DIRT traffic in addition to the residential discussions.
To subscribe to BrokerDIRT, send the message
subscribe BrokerDIRT [your name]
To cancel your subscription to BrokerDIRT, send the message
signoff BrokerDIRT to the address:
DIRT is a service of the American Bar Association
Section on Real Property, Probate & Trust Law and
the University of Missouri, Kansas City, School
of Law. Daily Developments are copyrighted by
Patrick A. Randolph, Jr., Professor of Law, UMKC
School of Law, but Professor Randolph grants
permission for copying or distribution of Daily
Developments for educational purposes, including
professional continuing education, provided that
no charge is imposed for such distribution and
that appropriate credit is given to Professor
Randolph, DIRT, and its sponsors.
DIRT has a WebPage at:
Members of the ABA Section on Real Property, Probate
and Trust Law or of the National Association of Realtors can subscribe to a quarterly hardcopy report that includes all DIRT Daily Developments, many other cases, and periodic reviews of real estate oriented literature and state legislation by contacting Antonette Smith at (312) 988 5260 or email@example.com