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. 
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