CHAPTER 1. GENERAL PROCEDURES
IC 32-24
ARTICLE 24. EMINENT DOMAIN
IC 32-24-1
Chapter 1. General Procedures
IC 32-24-1-1
"Condemnor" defined
Sec. 1. As used in section 5 of this chapter, "condemnor" meansany person authorized by Indiana law to exercise the power ofeminent domain.
As added by P.L.2-2002, SEC.9.
IC 32-24-1-2
"Owner" defined
Sec. 2. As used in section 5 of this chapter, "owner" means thepersons listed on the tax assessment rolls as being responsible for thepayment of real estate taxes imposed on the property and the personsin whose name title to real estate is shown in the records of therecorder of the county in which the real estate is located.
As added by P.L.2-2002, SEC.9.
IC 32-24-1-3
Entry on land; purchase before instituting proceedings; surveys bypublic utilities or pipeline companies
Sec. 3. (a) Any person that may exercise the power of eminentdomain for any public use under any statute may exercise the poweronly in the manner provided in this article, except as otherwiseprovided by law.
(b) Except as provided in subsection (g), before proceeding tocondemn, the person:
(1) may enter upon any land to examine and survey the propertysought to be acquired; and
(2) must make an effort to purchase for the use intended theland, right-of-way, easement, or other interest, in the property.
(c) The effort to purchase under subsection (b)(2) must includethe following:
(1) Establishing a proposed purchase price for the property.
(2) Providing the owner of the property with an appraisal orother evidence used to establish the proposed purchase price.
(3) Conducting good faith negotiations with the owner of theproperty.
(d) If the land or interest in the land, or property or right is ownedby a person who is an incapacitated person (as defined inIC 29-3-1-7.5) or less than eighteen (18) years of age, the personseeking to acquire the property may purchase the property from theguardian of the incapacitated person or person less than eighteen (18)years of age. If the purchase is approved by the court appointing theguardian and the approval is written upon the face of the deed, theconveyance of the property purchased and the deed made and
approved by the court are valid and binding upon the incapacitatedperson or persons less than eighteen (18) years of age.
(e) The deed given, when executed instead of condemnation,conveys only the interest stated in the deed.
(f) If property is taken by proceedings under this article, the entirefee simple title may be taken and acquired.
(g) This subsection applies to a public utility (as defined inIC 32-24-1-5.9(a)) or a pipeline company (as defined inIC 8-1-22.6-7). If a public utility or a pipeline company seeks toacquire land or an interest in land under this article, the public utilityor pipeline company may not enter upon the land to examine orsurvey the property sought to be acquired unless either of thefollowing occur:
(1) The public utility or the pipeline company sends notice bycertified mail to the affected landowner (as defined inIC 8-1-22.6-2) of the public utility's or the pipeline company'sintention to enter upon the landowner's property for surveypurposes. The notice required by this subdivision must bemailed not later than fourteen (14) days before the date of thepublic utility's or the pipeline company's proposed examinationor survey.
(2) The public utility or the pipeline company receives thelandowner's signed consent to enter the property to perform theproposed examination or survey.
An affected landowner may bring an action to enforce this subsectionin the circuit court of the county in which the landowner's propertyis located. A prevailing landowner is entitled to the landowner'sactual damages as a result of the public utility's or the pipelinecompany's violation. In addition, the court may award a prevailinglandowner reasonable costs of the action and attorney's fees.
As added by P.L.2-2002, SEC.9. Amended by P.L.163-2006, SEC.5;P.L.110-2007, SEC.2.
IC 32-24-1-4
Complaint
Sec. 4. (a) If the person seeking to acquire the property does notagree with the owner of an interest in the property or with theguardian of an owner concerning the damages sustained by theowner, the person seeking to acquire the property may file acomplaint for that purpose with the clerk of the circuit court of thecounty where the property is located.
(b) The complaint must state the following:
(1) The name of the person seeking to acquire the property.This person shall be named as the plaintiff.
(2) The names of all owners, claimants to, and holders of lienson the property, if known, or a statement that they are unknown.These owners, claimants, and holders of liens shall be named asdefendants.
(3) The use the plaintiff intends to make of the property or rightsought to be acquired. (4) If a right-of-way is sought, the location, general route,width, and the beginning and end points of the right-of-way.
(5) A specific description of each piece of property sought to beacquired and whether the property includes the whole or onlypart of the entire parcel or tract. If property is sought to beacquired by the state or by a county for a public highway or bya municipal corporation for a public use and the acquisitionconfers benefits on any other property of the owner, a specificdescription of each piece of property to which the plaintiffalleges the benefits will accrue. Plats of property alleged to beaffected may accompany the descriptions.
(6) That the plaintiff has been unable to agree for the purchaseof the property with the owner, owners, or guardians, as thecase may be, or that the owner is mentally incompetent or lessthan eighteen (18) years of age and has no legally appointedguardian, or is a nonresident of Indiana.
(c) All parcels lying in the county and required for the samepublic use, whether owned by the same parties or not, may beincluded in the same or separate proceedings at the option of theplaintiff. However, the court may consolidate or separate theproceedings to suit the convenience of parties and the ends of justice.The filing of the complaint and a lis pendens notice in any eminentdomain action under this article constitutes notice of proceedings toall subsequent purchasers and persons taking encumbrances of theproperty, who are bound by the notice.
As added by P.L.2-2002, SEC.9. Amended by P.L.81-2004, SEC.26.
IC 32-24-1-5
Offer of purchase; notice; service; forms; restoration of utility ortransportation services
Sec. 5. (a) As a condition precedent to filing a complaint incondemnation, and except for an action brought under IC 8-1-13-19(repealed), a condemnor may enter upon the property as provided inthis chapter and must, at least thirty (30) days before filing acomplaint, make an offer to purchase the property in the formprescribed in subsection (c). The offer must be served personally orby certified mail upon:
(1) the owner of the property sought to be acquired; or
(2) the owner's designated representative.
(b) If the offer cannot be served personally or by certified mail, orif the owner or the owner's designated representative cannot befound, notice of the offer shall be given by publication in anewspaper of general circulation in the county in which the propertyis located or in the county where the owner was last known to reside.The notice must be in the following form:
NOTICE
TO: _________________, _____________________ (owner(s)),__________________________ (condemnor) needs your propertyfor a _____________________________________________(description of project), and will need to acquire the following from
you:
________________________________________________ (generaldescription of the property to be acquired). We have made you aformal offer for this property that is now on file in the Clerk's Officein the ________ County Court House. Please pick up the offer. If youdo not respond to this notice or accept the offer by ____ (a date 30days from 1st date of publication) 20___, we shall file a suit tocondemn the property.
_______________________
Condemnor
The condemnor must file the offer with the clerk of the circuit courtwith a supporting affidavit that diligent search has been made andthat the owner cannot be found. The notice shall be published twiceas follows:
(1) One (1) notice immediately.
(2) A subsequent publication at least seven (7) days and not morethan twenty-one (21) days after the publication under subdivision(1).
(c) The offer to purchase must be in the following form:
UNIFORM PROPERTY OR EASEMENT
ACQUISITION OFFER
____________ (condemnor) is authorized by Indiana law to obtainyour property or an easement across your property for certain publicpurposes. _____________ (condemnor) needs (your property) (aneasement across your property) for a___________________________ (brief description of the project)and needs to take __________________ (legal description of theproperty or easement to be taken; the legal description may be madeon a separate sheet and attached to this document if additional spaceis required)
It is our opinion that the fair market value of the (property)(easement) we want to acquire from you is $ ____, and, therefore,_____________ (condemnor) offers you $ _______ for the abovedescribed (property) (easement). You have thirty (30) days from thisdate to accept or reject this offer. If you accept this offer, you mayexpect payment in full within ninety (90) days after signing thedocuments accepting this offer and executing the easement, andprovided there are no difficulties in clearing liens or other problemswith title to land. Possession will be required thirty (30) days afteryou have received your payment in full.
HERE IS A BRIEF SUMMARY OF YOUR OPTIONS ANDLEGALLY PROTECTED RIGHTS:
1. By law, _____________ (condemnor) is required to make agood faith effort to purchase (your property) (an easement acrossyour property).
2. You do not have to accept this offer and __________(condemnor) is not required to agree to your demands.
3. However, if you do not accept this offer, and we cannot cometo an agreement on the acquisition of (your property) (aneasement), _____________ (condemnor) has the right to file suit
to condemn and acquire the (property) (easement) in the countyin which the property is located.
4. You have the right to seek advice of an attorney, real estateappraiser, or any other person of your choice on this matter.
5. You may object to the public purpose and necessity of thisproject.
6. If _____________ (condemnor) files a suit to condemn andacquire (your property) (an easement) and the court grants itsrequest to condemn, the court will then appoint three appraiserswho will make an independent appraisal of the (property)(easement) to be acquired.
7. If we both agree with the court appraisers' report, then thematter is settled. However, if either of us disagrees with theappraisers' report to the court, either of us has the right to ask fora trial to decide what should be paid to you for the (property)(easement) condemned.
8. If the court appraisers' report is not accepted by either of us,then ______________ (condemnor) has the legal option ofdepositing the amount of the court appraisers' evaluation with thecourt. And if such a deposit is made with the court,_____________ (condemnor) is legally entitled to immediatepossession of the (property) (easement). You may, subject to theapproval of the court, make withdrawals from the amountdeposited with the court. Your withdrawal will in no way affectthe proceedings of your case in court, except that, if the finaljudgment awarded you is less than the withdrawal you havemade from the amount deposited, you will be required to payback to the court the amount of the withdrawal in excess of theamount of the final judgment.
9. The trial will decide the full amount of damages you are toreceive. Both of us will be entitled to present legal evidencesupporting our opinions of the fair market value of the propertyor easement. The court's decision may be more or less than thisoffer. You may employ, at your cost, appraisers and attorneys torepresent you at this time or at any time during the course of theproceeding described in this notice. (The condemnor may inserthere any other information pertinent to this offer or required bycircumstances or law).
10. If you have any questions concerning this matter you maycontact us at:
____________________________________________________
____________________________________________________
(full name, mailing and street address, and phone of thecondemnor)
This offer was made to the owner(s):
______________ of ________________,
______________ of ________________,
______________ of ________________,
______________ of ________________,
on the _____ day of ______ 20___, BY:
_________________________
(signature)
_________________________
(printed name and title)
Agent of: _________________________
(condemnor)
If you decide to accept the offer of $ _____ made by_____________ (condemnor) sign your name below and mailthis form to the address indicated above. An additional copy ofthis offer has been provided for your file.
ACCEPTANCE OF OFFER
I (We), ______________, ______________, ___________,owner(s) of the above described property or interest inproperty, hereby accept the offer of $ _______ made by_________ (condemnor) on this _____ day of _______,20___.
_______________________________________
_______________________________________
_______________________________________
_______________________________________
NOTARY'S CERTIFICATE
STATE OF _____________ )
)SS:
COUNTY OF ___________ )
Subscribed and sworn to before me this ____ day of__________, 20___.
My Commission Expires: __________
__________________________________
(Signature)
________________________________________________
(Printed) NOTARY PUBLIC
(d) If the condemnor has a compelling need to enter upon propertyto restore utility or transportation services interrupted by disaster orunforeseeable events, the provisions of subsections (a), (b), and (c)do not apply for the purpose of restoration of utility or transportationservices interrupted by the disaster or unforeseeable events.However, the condemnor shall be responsible to the property ownerfor all damages occasioned by the entry, and the condemnor shallimmediately vacate the property entered upon as soon as utility ortransportation services interrupted by the disaster or unforeseeableevent have been restored.
As added by P.L.2-2002, SEC.9. Amended by P.L.163-2006, SEC.6.
IC 32-24-1-5.5
Time limit for filing a complaint
Sec. 5.5. (a) Except as provided in sections 5.8 and 5.9 of thischapter, this section applies to every person that may exercise thepower of eminent domain.
(b) If: (1) a person that may exercise the power of eminent domainsubmits a written acquisition offer to the owner of a parcel ofreal estate under section 5 of this chapter; and
(2) the owner rejects the offer;
the person shall file a complaint under this article to acquire theparcel by the exercise of eminent domain not more than two (2) yearsafter the date the person submitted the written acquisition offer to theowner.
(c) If a person that may exercise the power of eminent domain failsto meet the requirements described in subsection (b) concerning aparcel of real estate, the person may not initiate an action under thisarticle to acquire the parcel through the power of eminent domain forthe same project or a substantially similar project for at least three(3) years after the date the two (2) year period described insubsection (b) expires.
As added by P.L.163-2006, SEC.7.
IC 32-24-1-5.8
Time limit for filing a complaint; Indiana department oftransportation projects
Sec. 5.8. (a) This section applies only to:
(1) the Indiana department of transportation when the departmentseeks to acquire a parcel of land or a property right for theconstruction, reconstruction, improvement, maintenance, orrepair of a:
(A) state highway; or
(B) toll road project or toll bridge; and
(2) any other person that may exercise the power of eminentdomain when the person seeks to acquire a parcel of land or aproperty right for the construction, reconstruction, improvement,maintenance, or repair of a feeder road for an Indiana departmentof transportation project described in subdivision (1) if theconstruction, reconstruction, improvement, maintenance, orrepair of the feeder road begins not later than five (5) years fromthe conclusion of the project.
(b) If:
(1) the Indiana department of transportation or other persondescribed in subsection (a)(2) submits a written acquisition offerto the owner of a parcel of real estate under section 5 of thischapter; and
(2) the owner rejects the offer;
the department or other person shall file a complaint under thisarticle to acquire the parcel by the exercise of eminent domain notmore than six (6) years after the date the department or other personsubmitted the written acquisition offer to the owner.
(c) If the Indiana department of transportation or other person failsto meet the requirements described in subsection (b) concerning aparcel of real estate, the department or other person may not initiatean action under this article to acquire the parcel through the powerof eminent domain for the same or a substantially similar project for
at least three (3) years after the date the six (6) year period describedin subsection (b) expires.
As added by P.L.163-2006, SEC.8.
IC 32-24-1-5.9
Time limit for filing a complaint; public utilities and pipelinecompanies
Sec. 5.9. (a) As used in this section, "public utility" means a publicutility, municipally owned utility, cooperatively owned utility, jointagency created under IC 8-1-2.2, municipal sanitation departmentoperating under IC 36-9-23, sanitary district operating underIC 36-9-25, or an agency operating as a stormwater utility.
(b) This section applies only to a public utility or pipelinecompany.
(c) If:
(1) a public utility or pipeline company submits a writtenacquisition offer to the owner of a parcel of real estate undersection 5 of this chapter; and
(2) the owner rejects the offer in writing;
the public utility or pipeline company, to acquire the parcel by theexercise of eminent domain, must file a complaint under this articlenot more than six (6) years after the date on which the public utilityor pipeline company submitted the written acquisition offer to theowner.
(d) If a public utility or pipeline company fails to meet therequirements set forth in subsection (c) concerning a parcel of realestate, the public utility or pipeline company may not initiate anaction under this article to acquire the parcel through the power ofeminent domain for the same project or a substantially similar projectfor at least two (2) years after the date on which the six (6) yearperiod described in subsection (c) expires.
As added by P.L.163-2006, SEC.9.
IC 32-24-1-6
Notice to appear in court; form
Sec. 6. (a) Upon the filing of a complaint under this chapter, thecircuit court clerk shall issue a notice requiring the defendants toappear before the court on the day to be fixed by the plaintiff byindorsement on the complaint at the time of filing the complaint, andto show cause, if any, why the property sought to be condemnedshould not be acquired. The notice shall be substantially in thefollowing form:
In the ____________ Court of Indiana.
To the Sheriff of ____________ County, Indiana:
You are hereby commanded to notify _______________,defendants, to appear before the __________ Court of_____________ County, Indiana on the ____ day of _________,20_______, at _______ o'clock, __ M. to show cause, if any, theyhave why the property sought to be acquired in the complaint of_______ should not be acquired. Witness my hand and the seal of the court affixed at_____________, Indiana, this ___ day of __________, 20_______.
Clerk of _________________ Court.
(b) The notice shall be served in the same manner as a summons isserved in civil actions. Upon a showing by affidavit that anydefendant is a nonresident of Indiana or that the defendant's name orresidence is unknown, publication and proof of the notice may bemade as provided in section 7 of this chapter.
As added by P.L.2-2002, SEC.9.
IC 32-24-1-7
Notice to appear in court; publication; nonresident landowners;assessment of damages
Sec. 7. (a) The notice, upon its return, must show its:
(1) service for ten (10) days; or
(2) proof of publication for three (3) successive weeks in aweekly newspaper of general circulation printed and publishedin the English language in the county in which the propertysought to be acquired is located.
The last publication of the notice must be five (5) days before theday set for the hearing.
(b) The clerk of the court in which the proceedings are pending,upon the first publication of the notice, shall send to the post officeaddress of each nonresident owner whose property will be affectedby the proceedings a copy of the notice, if the post office address ofthe owner or owners can be ascertained by inquiry at the office of thetreasurer of the county.
(c) The court, being satisfied of the regularity of the proceedingsand the right of the plaintiff to exercise the power of eminent domainfor the use sought, shall appoint:
(1) one (1) disinterested freeholder of the county; and
(2) two (2) disinterested appraisers licensed under IC 25-34.1;
who are residents of Indiana to assess the damages, or the benefitsand damages, as the case may be, that the owner or owners severallymay sustain, or be entitled to, by reason of the acquisition. One (1)of the appraisers appointed under subdivision (2) must reside notmore than fifty (50) miles from the property.
As added by P.L.2-2002, SEC.9. Amended by P.L.113-2006, SEC.19.
IC 32-24-1-8
Objections to proceedings; appeals
Sec. 8. (a) A defendant may object to the proceedings:
(1) because the court does not have jurisdiction either of thesubject matter or of the person;
(2) because the plaintiff does not have the right to exercise thepower of eminent domain for the use sought; or
(3) for any other reason disclosed in the complaint or set up inthe objections.
(b) Objections under subsection (a) must be:
(1) in writing; (2) separately stated and numbered; and
(3) filed not later than thirty (30) days after the date the noticerequired in section 6 of this chapter is served on the defendant.However, the court may extend the period for filing objectionsby not more than thirty (30) days upon written motion of thedefendant.
(c) The court may not allow pleadings in the cause other than thecomplaint, any objections, and the written exceptions provided for insection 11 of this chapter. However, the court may permitamendments to the pleadings.
(d) If an objection is sustained, the plaintiff may amend thecomplaint or may appeal from the decision in the manner thatappeals are taken from final judgments in civil actions. All theparties shall take notice and are bound by the judgment in an appeal.
(e) If the objections are overruled, the court shall appointappraisers as provided for in this chapter. Any defendant may appealthe interlocutory order overruling the objections and appointingappraisers in the manner that appeals are taken from final judgmentsin civil actions upon filing with the circuit court clerk a bond:
(1) with the penalty that the court fixes;
(2) with sufficient surety;
(3) payable to the plaintiff; and
(4) conditioned for the diligent prosecution of the appeal and forthe payment of the judgment and costs that may be affirmed andadjudged against the appellants.
The appeal bond must be filed not later than ten (10) days after theappointment of the appraisers.
(f) All the parties shall take notice of and be bound by thejudgment in the appeal.
(g) The transcript must be filed in the office of the clerk of thesupreme court not later than thirty (30) days after the filing of theappeal bond. The appeal does not stay proceedings in the cause.
As added by P.L.2-2002, SEC.9. Amended by P.L.163-2006, SEC.10.
IC 32-24-1-9
Appraisers; oath and duty
Sec. 9. (a) Each appraiser shall take an oath that:
(1) the appraiser has no interest in the matter; and
(2) the appraiser will honestly and impartially make theassessment.
(b) After the appraisers are sworn as provided in subsection (a), thejudge shall instruct the appraisers as to:
(1) their duties as appraisers; and
(2) the measure of the damages and benefits, if any, they allow.
(c) The appraisers shall determine and report all of the following:
(1) The fair market value of each parcel of property sought to beacquired and the value of each separate estate or interest in theproperty.
(2) The fair market value of all improvements pertaining to theproperty, if any, on the portion of the property to be acquired. (3) The damages, if any, to the residue of the property of theowner or owners caused by taking out the part sought to beacquired.
(4) The other damages, if any, that will result to any personsfrom the construction of the improvements in the mannerproposed by the plaintiff.
(d) If the property is sought to be acquired by the state or by acounty for a public highway or a municipal corporation for a publicuse that confers benefits on any property of the owner, the reportmust also state the benefits that will accrue to each parcel ofproperty, set opposite the description of each parcel of propertywhether described in the complaint or not.
(e) Except as provided in subsection (f), in estimating the damagesspecified in subsection (c), the appraisers may not deduct for anybenefits that may result from the improvement.
(f) In the case of a condemnation by the state or by a county for apublic highway or a municipal corporation for public use, theappraisers shall deduct any benefits assessed from the amount ofdamage allowed, if any, under subsection (c)(3) and (c)(4) and thedifference, if any, plus the damages allowed under subsection (c)(1)and (c)(2) shall be the amount of the award. However, the damagesawarded may not be less than the damages allowed under subsection(c)(1) and (c)(2). Upon the trial of exceptions to the award by eitherparty, a like measure of damages must be followed.
(g) For the purpose of assessing compensation and damages, theright to compensation and damages is considered to have accrued asof the date of the service of the notice provided in section 6 of thischapter, and actual value of compensation and damages at that dateshall be:
(1) the measure of compensation for all property to be actuallyacquired; and
(2) the basis of damages to property not actually acquired butinjuriously affected;
except as to the damages stated in subsection (c)(4).
As added by P.L.2-2002, SEC.9.
IC 32-24-1-10
Payment of benefits or damages assessed
Sec. 10. (a) If the plaintiff pays to the circuit court clerk theamount of damages assessed under section 9 of this chapter, theplaintiff may take possession of and hold the interest in the propertyso acquired for the uses stated in the complaint, subject to the appealprovided for in section 8 of this chapter. But the amount of thebenefits or damages is subject to review as provided in section 11 ofthis chapter.
(b) Upon payment by the plaintiff of the amount of the award ofthe court appointed appraisers, the plaintiff shall file or cause to befiled with the auditor of the county in which the property is locateda certificate, certifying the amount paid to the circuit court clerk andincluding the description of the property being acquired. The auditor
of the county shall then transfer the property being acquired to theplaintiff on the tax records of the county.
As added by P.L.2-2002, SEC.9.
IC 32-24-1-11
Exceptions to appraisers' reports
Sec. 11. (a) Any party to an action under this chapter aggrieved bythe assessment of benefits or damages may file written exceptions tothe assessment in the office of the circuit court clerk. Exceptions tothe assessment must be filed not later than twenty (20) days after thefiling of the report.
(b) The cause shall further proceed to issue, trial, and judgment asin civil actions. The court may make orders and render findings andjudgments that the court considers just.
(c) Notice of filing of the appraisers' report shall be given by thecircuit court clerk to all known parties to the action and theirattorneys of record by certified mail. The period of exceptions shallrun from and after the date of mailing. Either party may appeal ajudgment as to benefits or damages as in civil actions.
(d) Twenty (20) days after the filing of the report of the appraisers,and if the plaintiff has paid the amount of damages assessed to thecircuit court clerk, any one (1) or more of the defendants may file awritten request for payment of each defendant's proportionate shareof the damages held by the circuit court clerk. The defendantsmaking a request for payment must also file sufficient copies of therequest for service upon the plaintiff and all other defendants notjoining in the request. The defendants making the request maywithdraw and receive each defendant's proportionate share of thedamages upon the following terms and conditions:
(1) Each written request must:
(A) be verified under oath; and
(B) state:
(i) the amount of the proportionate share of the damages towhich each of the defendants joining in the request isentitled;
(ii) the interest of each defendant joining in the request; and
(iii) the highest offer made by the plaintiff to each of thedefendants for each defendant's respective interests in ordamages sustained in respect to the property that has beenacquired by the plaintiff.
(2) Upon the filing of a written request for withdrawal andpayment of damages to any of the defendants, the circuit courtclerk shall immediately issue a notice to the plaintiff and alldefendants of record in the cause who have not joined in therequest for payment. The notice must contain the following:
(A) The names of the parties.
(B) The number of the cause.
(C) A statement that a request for payment has been filed.
(D) A notice to appear on a day, to be fixed by the court, andshow cause, if any, why the amounts requested should not be
withdrawn and paid over by the circuit court clerk to thosedefendants requesting the amounts to be paid.
(E) A copy of the request for payment.
If a defendant not requesting payment is a nonresident ofIndiana, or if that defendant's name or residence is unknown,publication and proof of the notice and request for payment shallbe made as provided in section 4 of this chapter.
(3) After a hearing held after notice of a written request madeunder this section, the court shall determine and order thepayment by the circuit court clerk of the proportionate shares ofthe damages due to the defendants requesting payment. Any ofthe defendants may appeal an order under this subdivision withinthe same time and in the same manner as provided for allowableappeals from interlocutory orders in civil actions.
(4) If exceptions to the appraisers' report have been duly filed bythe plaintiff or any defendant, the circuit court clerk may notmake payment to any defendant of any part of the damagesdeposited with the clerk by the plaintiff until the defendantsrequesting payment have filed with the circuit court clerk awritten undertaking, with surety approved by the court, for therepayment to the plaintiff of all sums received by thosedefendants in excess of the amount or amounts awarded asdamages to those defendants by the judgment of the court upontrial held on the exceptions to the assessment of damages by theappraisers. However, the court may waive the requirement ofseparate surety as to any defendant who is a resident freeholderof the county in which the cause is pending and who is owner ofreal property in Indiana that is liable to execution, not includedin the real property appropriated by the plaintiff, and equal invalue to the amount by which the damages to be withdrawnexceed the amount offered to the defendants as stated in theirrequest or the amount determined by the court if the plaintiff hasdisputed the statement of the offer. A surety or writtenundertaking may not be required for a defendant to withdrawthose amounts previously offered by the plaintiff to thedefendant if the plaintiff has previously notified the court inwriting of the amounts so offered. The liability of any suretydoes not exceed the amount by which the damages to bewithdrawn exceed the amount offered to the defendants withwhom the surety joins in the written undertaking. Each writtenundertaking filed with the circuit court clerk shall beimmediately recorded by the clerk in the order book and enteredin the judgment docket, and from the date of the recording andentry the written undertaking is a lien upon all the real propertyin the county owned by the several obligors, and the undertakingis also a lien upon all the real property owned by the severalobligors in each county of Indiana in which the plaintiff causesa certified copy of the judgment docket entry to be recorded,from the date of the recording.
(5) The withdrawal and receipt from the circuit court clerk by
any defendant of that defendant's proportionate share of thedamages awarded by the appraisers, as determined by the courtupon the written request and hearing, does not operate and is notconsidered as a waiver of any exceptions duly filed by thatdefendant to the assessment of damages by the appraisers.
(6) In any trial of exceptions, the court or jury shall compute andallow interest at an annual rate of eight percent (8%) on theamount of a defendant's damages from the date plaintiff takespossession of the property. Interest may not be allowed on anymoney paid by the plaintiff to the circuit court clerk:
(A) after the money is withdrawn by the defendant; or
(B) that is equal to the amount of damages previously offeredby the plaintiff to any defendant and which amount can bewithdrawn by the defendant without filing a writtenundertaking or surety with the court for the withdrawal of thatamount.
As added by P.L.2-2002, SEC.9.
IC 32-24-1-12
Offer of settlement; acceptance; rejection
Sec. 12. (a) Not later than forty-five (45) days before a trialinvolving the issue of damages, the plaintiff shall, and a defendantmay, file and serve on the other party an offer of settlement. Notmore than five (5) days after the date offer of settlement is served,the party served may respond by filing and serving upon the otherparty an acceptance or a counter offer of settlement. The offer muststate that it is made under this section and specify the amount,exclusive of interest and costs, that the party serving the offer iswilling to accept as just compensation and damages for the propertysought to be acquired. The offer or counter offer supersedes anyother offer previously made under this chapter by the party.
(b) An offer of settlement is considered rejected unless anacceptance in writing is filed and served on the party making theoffer before the trial on the issue of the amount of damages begins.
(c) If the offer is rejected, it may not be referred to for any purposeat the trial but may be considered solely for the purpose of awardingcosts and litigation expenses under section 14 of this chapter.
(d) This section does not limit or restrict the right of a defendantto payment of any amounts authorized by law in addition to damagesfor the property taken from the defendant.
(e) This section does not apply to an action brought underIC 8-1-13-19 (repealed).
As added by P.L.2-2002, SEC.9. Amended by P.L.163-2006, SEC.11.
IC 32-24-1-13
Highways and roads; appointment of appraisers
Sec. 13. (a) The Indiana department of transportation or any stateboard, agency, or commission that succeeds the department inrespect to the duties to locate, relocate, construct, reconstruct, repair,or maintain the public highways of Indiana, having the right to
exercise the power of eminent domain for the public use, in its actionfor condemnation is not required to prove that an offer of purchasewas made to the property owner in an action under this article.
(b) The court shall on the return day fixed at the time of the filingof the complaint appoint appraisers as provided by law and fix a daynot later than ten (10) days after the date of the court's order for theappraisers to appear, qualify, and file their report of appraisal.
(c) If the appraisers appointed by the court fail to appear, qualify,and file their report of appraisal as ordered by the court, the courtshall discharge the appraisers and appoint new appraisers in the samemanner as provided in subsection (b).
As added by P.L.2-2002, SEC.9.
IC 32-24-1-14
Costs of proceedings; litigation expenses
Sec. 14. (a) Except as provided in subsection (b), the plaintiff shallpay the costs of the proceedings.
(b) If there is a trial, the additional costs caused by the trial shallbe paid as ordered by the court. However, if there is a trial and theamount of damages awarded to the defendant by the judgment,exclusive of interest and costs, is greater than the amount specifiedin the last offer of settlement made by the plaintiff under section 12of this chapter, the court shall allow the defendant the defendant'slitigation expenses, including reasonable attorney's fees, in anamount not to exceed the lesser of:
(1) twenty-five thousand dollars ($25,000); or
(2) the fair market value of the defendant's property or easementas determined under this chapter.
As added by P.L.2-2002, SEC.9. Amended by P.L.163-2006, SEC.12.
IC 32-24-1-15
Forfeitures; failure to pay damages or take possession
Sec. 15. (a) If the person seeking to take property under this articlefails:
(1) to pay the assessed damages and, if applicable, the attorney'sfees payable under section 14 of this chapter not later than one(1) year after the appraisers' report is filed, if exceptions are notfiled to the report;
(2) to pay:
(A) the damages assessed and, if applicable, attorney's feespayable under section 14 of this chapter if exceptions are filedto the appraisers' report and the exceptions are not sustained;or
(B) the damages assessed and, if applicable, attorney's feespayable under section 14 of this chapter and costs if exceptionsare filed to the appraisers' report and the exceptions aresustained;
not later than one (1) year after the entry of the judgment, if anappeal is not taken from the judgment;
(3) to pay the damages assessed and, if applicable, attorney's fees
payable under section 14 of this chapter or the judgmentrendered in the trial court not later than one (1) year after finaljudgment is entered in the appeal if an appeal is taken from thejudgment of the trial court; or
(4) to take possession of the property and adapt the property forthe purpose for which it was acquired not later than six (6) yearsafter the payment of the award or judgment for damages, exceptwhere a fee simple interest in the property is authorized to beacquired and is acquired;
the person seeking to acquire the property forfeits all rights in theproperty as fully and completely as if the procedure to take theproperty had not begun.
(b) An action to declare a forfeiture under this section may bebrought by any person having an interest in the property sought to beacquired, or the question of the forfeiture may be raised anddetermined by direct allegation in any subsequent proceedings, byany other person to acquire the property for a public use. In thesubsequent proceedings the person seeking the previous acquisitionor the person's proper representatives, successors, or assigns shall bemade parties.
As added by P.L.2-2002, SEC.9. Amended by P.L.163-2006, SEC.13.
IC 32-24-1-16
Prior appropriation of land
Sec. 16. A person having an interest in property that has been ormay be acquired for a public use without the procedures of thisarticle or any prior law followed is entitled to have the person'sdamages assessed under this article substantially in the mannerprovided in this article.
As added by P.L.2-2002, SEC.9.
IC 32-24-1-17
Conflicting laws; repeal
Sec. 17. All laws and parts of laws in conflict with the provisionsof this chapter are hereby repealed: provided, that this repeal shallnot affect proceedings pending on April 15, 1905, but suchproceedings may be completed as if this chapter had never beenpassed.
As added by P.L.2-2002, SEC.9.