Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Coutar Remainder I, LLC v. State

Court of Appeals of Indiana

December 28, 2017

Coutar Remainder I, LLC, Kooshtard Property I, LLC, Mac's Convenience Stores, LLC, f/k/a Bigfoot Food Stores, LLC, and Union Fidelity Life Insurance Company, Appellants-Defendants,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal from the Monroe Circuit Court The Honorable Frances G. Hill, Judge Trial Court Cause No. 53C06-1402-PL-251

          Attorneys for Appellants David A. Given Brian J. Paul Matthew C. Olsen Faegre Baker Daniels LLP Indianapolis, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Andrea E. Rahman Deputy Attorney General Indianapolis, Indiana

          NAJAM, JUDGE.

         Statement of the Case

         [¶1] Kooshtard Property I, LLC is the owner of the fee simple title to certain land in Monroe County that abuts Indiana State Road 37 between Bloomington and Martinsville (the "Kooshtard Property"). Coutar Remainder I, LLC holds a remainder interest in the Kooshtard Property, and Mac's Convenience Stores, LLC, d/b/a Circle K, holds a leasehold interest.[1] In 2014, the State initiated condemnation proceedings to take a parcel from the Kooshtard Property in connection with the State's development of Interstate 69 over and along State Road 37. During those proceedings, the property owners (hereinafter collectively referred to as "Kooshtard") asserted that the State's development of Interstate 69 would eliminate access to the Kooshtard Property. The trial court disagreed and entered summary judgment for the State.

         [¶2] We hold that Kooshtard is entitled to a trial on damages on the State's elimination of the Kooshtard Property's access to State Road 37. In particular, Kooshtard's chain of title includes a deed from a previous owner to the State, which is binding upon both Kooshtard and the State. The deed contains an access control line restriction as a covenant running with the land, and the restriction includes an exception or opening in the access control line, which provides the Kooshtard Property with a right of access to State Road 37. The State's elimination of that opening constitutes the taking of a property right subject to compensation. As such, we reverse and remand for further proceedings.

         Facts and Procedural History[2]

         [¶3] In 1971, Jane Ellis deeded to the State a portion of certain real property she owned for the State's construction of State Road 37 ("the first taking"). The Ellis deed provided that "all rights and easements of ingress and egress to, from, and across" State Road 37 "to and from the owner's abutting lands" were permanently extinguished. Appellants' App. Vol. II at 184. However, the deed also reserved to Ellis and her successors in title an opening of 77.59 feet in the State's access control line to State Road 37. Id. at 185. The deed states that the access control line restriction, which includes an exception or opening, "shall be a covenant running with the land." Id.

         [¶4] The deed "further" reserved to Ellis and her successors "access to a local service road" located within the State Road 37 right of way between the Ellis property line and the opening in the access control line. Id. From there, one could enter onto, or exit from, State Road 37. In 2001, Kooshtard became the successor in title, in relevant part, to the Ellis property as described in the 1971 Ellis deed.

         [¶5] The western boundary of the Kooshtard Property is contiguous to the eastern boundary of the State Road 37 right of way. At the southwest corner of the Kooshtard Property, the property line turns and runs eastward for 57.88 feet and then abruptly turns southward for 60.39 feet. See Appellants' App. Vol. IV at 221, 244. These courses are described in the affidavit of Kooshtard's expert Rory O'Bryan as the "common north boundary line" and the "common east boundary line, " respectively. Id. at 244. There is no access control along these common boundary lines.

         [¶6] Sometime after the Ellis deed, the State conveyed control over the "local service road" mentioned in the deed to Monroe County, which the County now maintains as "Wayport Road." Wayport Road abuts the Kooshtard property along the common north boundary line and the common east boundary line. At that location, Wayport Road lies adjacent and contiguous to the Kooshtard Property and entirely within the State Road 37 right of way.

         [¶7] Currently, whenever traffic travels east from State Road 37 to the Kooshtard Property or west from the Kooshtard property to State Road 37, the traffic utilizes both the State Road 37 right of way and the opening in the access control line and passes over Wayport Road where it meets the common north boundary line and the common east boundary line. Kooshtard's right to utilize the right of way is based upon its common law status as an abutting property owner, and its right to utilize the opening in the access control line is based upon the covenant that runs with the land in the Ellis deed.

         [¶8] Between Bloomington and Martinsville, the State is converting State Road 37 into Interstate 69. The State plans to close the opening in the access control line at the Kooshtard Property created by the Ellis deed. In order to provide another route of access to and from the Kooshtard Property, the State plans to extend Wayport Road from its current location, where it abuts the common north boundary line and the common east boundary line, around the southern border of the Kooshtard Property and then to the north and east, where Wayport Road will connect with Sample Road. Sample Road will then have direct access to Interstate 69. The State's new traffic plan will require drivers to travel an additional ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.