FOR PUBLICATION

ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEE:

LEANNA WEISSMAN GREGORY F. ZOELLER

Lawrenceburg, Indiana Attorney General of Indiana

DAVID K. STEINER

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

NICK DOMASCHKO and EDWINA )

DOMASCHKO, and their RESPECTIVE TRUSTS,)

et al, )

)

Appellants-Defendants, )

)

vs. ) No. 58A01-1206-PL-261

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE OHIO CIRCUIT COURT

The Honorable James Humphrey, Judge

Cause No. 58C01-1105-PL-2

January 16, 2013

OPINION – FOR PUBLICATION

BARNES, Judge
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Case Summary

Nick Domaschko, Edwina Domaschko, and their respective trusts, et al., 

(collectively “the Domaschkos”) appeal the trial court’s order of immediate appropriation 

and appointment of appraisers. We affirm.

Issue

The Domaschkos raise one issue, which we restate as whether the trial court 

properly determined that the State, through the Indiana Department of Transportation 

(“INDOT”), was entitled by law to acquire the Domaschkos’ property.

Facts

The Domaschkos own approximately 900 acres of land in Ohio County between 

State Road 56 and the Ohio River. On May 16, 2011, INDOT filed a complaint for the 

appropriation of real estate in connection with a project to improve State Road 56. In 

addition to temporary rights of way, INDOT sought fee simple ownership of certain 

portions of the Domaschkos’ property. The Domaschkos objected, asserting that some of 

the real estate INDOT was seeking to appropriate was not related to highway purposes. 

INDOT filed a motion to overrule the Domaschkos’ objections. Eventually, the trial 

court conducted an evidentiary hearing on the Domaschkos’ objections. On May 30, 

2012, the trial court issued an order of immediate appropriation and appointment of 

appraisers. The Domaschkos now appeal.

Analysis

The Domaschkos assert that two portions of the land INDOT sought to acquire are 

not related to the improvement of State Road 56 and, therefore, INDOT was not 
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statutorily authorized to appropriate that property. The first portion of land is a fifty-foot 

buffer zone associated with the relocation of Thuermer Hollow Creek (“the Creek”). The 

second is associated with a shared driveway that currently straddles two properties, one 

owned by the Domasckos and the other owned by the Pate Aberdeen Water Company 

(“Water Company”). 

To the extent the trial court’s judgment is based on the interpretation of a statute, 

the judgment is a question of law. See Cochran v. State, 859 N.E.2d 727, 729 (Ind. Ct. 

App. 2007). “The first step in interpreting a statute is to determine whether the 

legislature has spoken clearly and unambiguously on the point in question.” Id. “When a 

statute is clear and unambiguous, we need not apply any rules of statutory construction 

other than to require that words and phrases be taken in their plain, ordinary, and usual 

sense.” Id. 

As the Domaschkos point out, pursuant to Indiana Code Section 8-23-2-4.1(4), 

INDOT is responsible for the construction, reconstruction, improvement, maintenance,

and repair of state highways. Further, pursuant to Indiana Code Section 8-23-2-6(a)(1), 

INDOT may “[a]cquire by purchase, gift, or condemnation, sell, abandon, own in fee or a 

lesser interest, hold, or lease property in the name of the state, or otherwise dispose of or 

encumber property to carry out its responsibilities.” INDOT is also authorized to 

“[p]erform all actions necessary to carry out the department’s responsibilities.” Ind. 

Code § 8-23-2-6(a)(13). 

Accordingly, the Domaschkos concede, “[s]imple statutory construction leads to a 

clear conclusion—INDOT can take property, but it has to be for the purpose of 
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maintaining and improving state highways.” Appellant’s Br. p. 10. The Domaschkos

argue, however, that INDOT does not have the authority to acquire land to “plant trees or 

to maintain driveways unrelated to road construction.” Id. 

In State v. Collom, 720 N.E.2d 737, 741 (Ind. Ct. App, 1999), we observed:

It has long been established that the necessity of taking 

property for public use is purely a legislative question and not 

a proper subject for judicial review; where the intended use is 

public, this question may be determined by such agency and 

in such manner as the legislature may designate. Wampler v. 

Trustees of Indiana University, 241 Ind. 449, 453, 172 N.E.2d 

67, 69 (1961). Thus, “a court may not inquire into the 

administrative determination of the propriety, reasonableness, 

or necessity for the taking of property by eminent domain by 

a proper authority, except for fraud, or where the proceeding 

is a subterfuge for taking property for private use.” Cemetery 

Co. v. Warren School Twp. of Marion County, 236 Ind. 171, 

189, 139 N.E.2d 538, 546-47 (1957). As our supreme court 

has explained:

The courts have the right to determine the legal 

authority and right under which the power of 

eminent domain is exercised. This does not 

mean, however, that the courts may assume the 

administrative act of determining the necessity 

or reasonableness of the decision to appropriate 

and take the land. To us, this appears to be a 

matter for the determination of the legislature or 

the corporate body to whom the legislature has 

delegated such a decision. We do not think the 

court has the power to inquire into the wisdom

or propriety of such judgment unless a question 

of fraud or bad faith is raised as where an 

attempt is made to show that the property taken 

will not be used for a public purpose, or the 

proceeding is a subterfuge to convey the 

property to a private use.

Id., 236 Ind. at 188, 139 N.E.2d at 545 (emphasis in original).
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* * * * *

Necessity under Indiana’s eminent domain statutes is not 

limited to the “absolute or indispensable needs of [the State], 

but is considered to be that which is reasonably proper and

useful for the purpose sought.” See Ellis v. Public Service 

Co. of Indiana, Inc., 168 Ind. App. 269, 272, 342 N.E.2d 921, 

923 (1976) (discussing utility eminent domain proceedings). 

Moreover, “[o]ur policy should not be such as to place an 

undue burden upon the State in acquiring land for such public 

improvements as highway construction when such 

improvements are considered to be in the public interest.” 

State v. Heslar, 257 Ind. 307, 315, 274 N.E.2d 261, 266 

(1971). All issues concerning the expediency and necessity 

of the taking of private property “are exclusively for the 

legislature. Unless the action of the legislature is arbitrary, 

and the use for which the property is taken is clearly private, 

the courts will not interfere.” Guerrettaz v. Public Service 

Co. of Indiana, 227 Ind. 556, 561, 87 N.E.2d 721, 724 (1949).

In Collom, we went on to explain the burden is on the party objecting to the appropriation 

to establish that the taking is not necessary for the purpose sought, and then only on the 

grounds of fraud, capriciousness, or illegality in the State’s determination of necessity. 

Collom, 720 N.E.2d at 742. 

To the extent the issue is properly framed as a challenge to INDOT’s statutory 

authority to acquire land, as opposed to the necessity of the specific acquisition, we are 

unpersuaded that the property at issue is unrelated to the improvement of State Road 56.

Regarding the buffer zone, at the hearing, INDOT presented evidence that, as part 

of the project, it wanted to realign the intersection of Thuermer Hollow Road and State 

Road 56 because the intersection was at an undesirable angle and the realignment would 

provide a safer intersection and adequate sight distance at the intersection. To realign the 

road, INDOT would need to relocate the Creek, which runs parallel to the road. To 
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relocate the Creek, INDOT was required to obtain certain permits from the Indiana 

Department of Environmental Management and the U.S. Army Corps of Engineers. As 

part of the permitting process, INDOT was required to mitigate the impact of the Creek 

relocation by installing a fifty-foot buffer zone, which included the planting of trees, 

along the relocated portions of the Creek. 

The Domaschkos claim that the acquisition of the buffer zone is unrelated to the 

improvement of State Road 56 because the Creek is not a navigable waterway subject to 

the Clean Water Act and, even if the Creek is subject to the Clean Water Act, adequate 

mitigation can occur elsewhere. These arguments miss the mark. 

Although the Domaschkos offered the testimony of a civil engineer who stated 

that the buffer zone was not necessary and that the mitigation could be done elsewhere 

and Nick Domaschko testified that the Creek is often dry, INDOT offered extensive 

testimony regarding the requirement of the buffer zone. For example, the environmental 

manager for the project testified that it was not possible to avoid the relocation of the 

Creek and that the buffer zone was required as part of the permitting process. This is 

consistent with the testimony of a project engineer, who testified that the project could 

not have been built without the Creek relocation and that INDOT could not have built the 

project without the buffer zone. Another engineer testified that the project could not have 

been built without the permits. This engineer also testified that the project could not have 

been built without this land acquisition. 

This evidence established that the acquisition of the buffer zone is related to

INDOT’s responsibility to improve State Road 56. See I.C. §§ 8-23-2-6(a)(1), 8-23-2-
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6(a)(13), 8-23-2-4.1(4); see also Cochran, 859 N.E.2d at 731 (holding that INDOT was 

statutorily authorized to acquire property in order to carry out its responsibility of 

reconstructing state highways and perform all actions necessary to carry out such 

reconstruction, including the construction of drainage facilities to accommodate 

additional run-off from a reconstruction project). Thus, the Domaschkos have not 

established that INDOT was not statutorily authorized to acquire the buffer zone. 

Regarding the permanent acquisition of land to be used as a shared driveway for 

the Domaschkos and the Water Company, Domaschkos assert that a permanent right of 

way is unnecessary because the Water Company has an entrance at another location. 

However, INDOT presented testimony explaining that the Domaschkos’ expert’s design 

was not viable and that a permanent right-of-way was necessary because “[t]he driveway 

is shared by two property owners, so according to Indiana design manual, we have to take 

permanent right-of-way. We cannot take temporary right-of way from one owner to 

build a drive . . . for another.” Tr. p. 110. Thus, it is clear that the acquisition of this 

property is related to the improvement of State Road 56 and, therefore, INDOT is

statutorily authorized to acquire the property for the driveway. See I.C. §§ 8-23-2-

6(a)(1), 8-23-2-6(a)(13), 8-23-2-4.1(4). The Domaschkos have not established that the 

trial court erroneously ordered the acquisition of the property associated with the buffer 

zone or the driveway.

Conclusion

Because the buffer zone and driveway are related to the improvement of State 

Road 56, INDOT was statutorily authorized to acquire that property. We affirm.
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Affirmed. 

BAKER, J., and RILEY, J., concur.