Tuesday, October 7, 2008 by Bose Archives
Center Townhouse Corporation (“CTC”) and individual townhome owners John W. Schindler, Jr., Ann M. Schindler, Dennis Doordan, Marcia Rickard, Michael A. Nickol, Betty M. Nickol, Richard T. Johnson, and Jeffery A. Greco (“Owners”) brought an inverse condemnation action against the City of Mishawaka and its Parks and Recreation Board (collectively “the City”) relative to the construction of a pedestrian bridge connecting Lincoln Park and Kamm Island. We consolidate and restate the issues raised by the parties as follows:
I. Whether the trial court erred when it determined that the construction of the pedestrian bridge constituted a taking.
II. Whether riparian rights in Indiana include the right to an unobstructed view of the body of water that created those riparian rights.
III. Whether the trial court erred when it instructed the jury that it should not consider any loss of view when determining damages caused by the taking.
Conclusion (slip op. at 17): We find no error in the trial court’s jury instruction. It neither misled the jury nor misstated the law. Affirmed (issue I and II discussed below).
Key Analysis (slip op. at 10, 15-16): The City failed to meet its burden to establish that the trial court’s judgment was clearly erroneous. Accordingly, we proceed on the premise that the bridge connecting Lincoln Park to Kamm Island effected a taking of Landowners riparian rights . . . Deciding the scope of a landowner’s view and determining how much obstruction is too much, is inappropriate, if not impossible, for this court. The scope of a landowner’s view, whether of the water or otherwise, is a policy decision best left to the legislative branch . . . Based on the record before us . . . we agree that the trial court’s instruction on loss of view was not only appropriate but necessary to prevent confusion to the Jury.