Court of Appeals of Indiana | Opinion 20A-PL-1502 | January 21, 2021 Page 1 of 13

ATTORNEYS FOR APPELLANTS

Benjamin A. Spandau

Brandon E. Tate

Tate Bowen Daugherty Funk Spandau 

LLC

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Theodore E. Rokita

Attorney General of Indiana

Natalie F. Weiss

Benjamin M.L. Jones

Aaron T. Craft

Deputy Attorneys General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Herbert C. Haggard and Alice 

M. Haggard,

Appellants-Defendants,

v.

State of Indiana,

Appellee-Plaintiff,

and

Jerry L. Hillenburg and Morgan 

County, Indiana,

Defendants.

January 21, 2021

Court of Appeals Case No.

20A-PL-1502

Appeal from the 

Morgan Circuit Court

The Honorable 

Matthew G. Hanson, Judge

Trial Court Cause No.

55C01-2002-PL-354

Kirsch, Judge.
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[1] This case concerns the State of Indiana’s, through the Indiana Department of 

Transportation (“INDOT”), appropriation of property as part of the ongoing 

improvement of Interstate 69 (“I-69”) through Morgan County, Indiana. The 

State filed a complaint for appropriation of real estate owned by Jerry 

Hillenburg and named Herbert C. Haggard and Alice M. Haggard (“the 

Haggards”) as defendants as to any interest they may have in the land as a 

consequence of their easement over the property. The Haggards filed objections

to the State’s complaint because they had not received an offer to purchase their 

easement prior to the State filing its complaint and moved the trial court to

vacate the order of appropriation. The Haggards appeal from the trial court’s 

order overruling their objections and their motion to vacate the order of 

appropriation and raise the following restated issue: whether the trial court 

erred when it overruled the Haggards’ objections to the State’s complaint and 

motion to vacate the order of appropriation. 

[2] We affirm.

Facts and Procedural History

[3] On February 21, 2020, the State filed its Complaint for Appropriation of Real 

Estate with the trial court for the improvement of I-69 under project number 

0300382. Appellants’ App. Vol. II at 15-16. In order to complete the 

improvement of I-69, the State needed to obtain a fee simple title with full 

limitation of access, easement rights with full limitation of access, and 

temporary right of way for building removal (to expire three years after 

commencement of construction) to real estate owned by Jerry L. Hillenburg 
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(“Hillenburg”). Id. Hillenburg owned the land by virtue of a Warranty Deed 

and Reservation of Easement (“the Deed”) recorded on May 20, 1981 in the 

Morgan County Recorder’s Office. Id. at 15-16, 23-25. The State’s complaint 

acknowledged that the Haggards may hold an interest in the real estate by 

virtue of an easement in the Deed recorded on May 20, 1981. Id. at 16. The 

State alleged that it had attempted to acquire the owners’ interest in the real 

property for $310,000 for the owners’ interests and any damages that may be 

caused by the State’s appropriation but that the State and the owners had been 

“unable to agree to a purchase price or to the amount of benefits and damages, 

if any, which may be sustained by reason of this appropriation.” Id. at 16. The 

State therefore requested that the trial court: (1) “appoint three . . . disinterested 

parties to appraise the value of the interests to be appropriated and the amount 

of benefits and damages, if any, caused by the appropriation”; and (2) “order 

the disinterested parties to join in making one . . . written report” to the trial 

court. Id. at 16. The Haggards were served with the complaint on February 28, 

2020. Id. at 6. 

[4] On March 18, 2020, the Indiana Supreme Court issued its order under Supreme 

Court Case No. 20S-CB-150 granting the Morgan County Courts’ petition for 

emergency relief due to COVID-19 (the “March 18 Order”). Due to the 

national emergency caused by the COVID-19 pandemic, the March 18 Order,

utilizing Indiana Administrative Rule 17, authorized the tolling, from the 

effective date of the order through April 10, 2020, “of all laws, rules, and 

procedures setting time limits for speedy trials in criminal and juvenile 
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proceedings, public health, mental health, and appellate matters; all judgments, 

support, and other orders; and in all other civil and criminal matters before the 

Morgan County Courts.” Id. at 51. The March 18 Order was extended 

through subsequent orders by the Indiana Supreme Court with the provisions of 

the Administrative Rule 17 emergency plan and orders to terminate on July 6, 

2020. Id. at 53-60. 

[5] On April 14, 2020, the State filed a motion for appropriation and appointment 

of appraisers. Id. at 31-33. On the same day, the trial court granted the State’s 

motion and ordered the appointment of one disinterested freeholder of Morgan 

County and two disinterested appraisers. Id. at 39-40. On May 8, 2020, the 

appraisers filed their report, in which they assessed that the fair market value of 

the land was $42,650, the fair market value of the improvements to the land was

$20,600, and the damages to the residue of the defendants’ real estate caused by 

the State’s appropriation was $270,750. Appellee’s App. Vol. 2 at 2-4. The total 

appraised just compensation was $334,000. Id.

[6] On May 14, 2020, the State filed exceptions to the report of the appraisers and a 

demand for jury trial, arguing that the appraisers’ report overstated the fair 

market value of the land, the fair market value of the improvements taken by 

the State, and the damages to the residue of the defendants’ real estate caused 

by the State’s appropriation. Id. at 8-9. Based on this, the State argued that the 

appraisers’ report overstated the total amount of just compensation. Id. On 

June 5, 2020, the Haggards also filed exceptions to the report of the appraisers 
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and demand for jury trial, alleging that the amount of assessed damages was too 

low. Id. at 10-12. 

[7] On July 2, 2020, the Haggards filed a motion to vacate the trial court’s order of 

appropriation, and they submitted their objections to the State’s complaint for 

appropriation. Appellants’ App. Vol. II at 47-66. In their motion to vacate, the 

Haggards argued that the appropriation order should be vacated because the 

State failed to make the Haggards an offer to purchase prior to the State filing

its complaint. Id. at 49. The Haggards argued that their objections were timely

filed because various COVID-19-related orders tolled all deadlines until July 5, 

2020. Id. at 48. In their objections to the State’s complaint, the Haggards 

alleged that under Indiana Code section 32-24-1-5(a), the State was required to 

make them an offer to purchase the property at least thirty days before filing a 

complaint. Id. at 62-63. The Haggards contended that the State failed to do so 

and provided as evidence an email where counsel for the State admitted that no

pre-suit offers were made to the Haggards because “the billboard matter was 

offered to Outfront Media LLC for the physical sign and the other offer was 

made to the fee owner, Jerry Hillenburg.” Id. at 61-64, 66.

[8] On July 15, 2020, the State filed a motion to overrule the Haggards’ objections

and their motion to vacate the order of appropriation, arguing that the 

Haggards’ objections were legally deficient because: (1) INDOT is exempt 

from having to prove that it made a good-faith effort to purchase real estate

pursuant to Indiana Code section 32-24-1-13; and (2) generally, a condemnor 

only has to make an offer to the owner of the real estate, and the Haggards did 
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not meet the definition of owners of the real estate at issue; the State further 

argued that the March 18 Order did not apply to objections so the Haggards’ 

objections were untimely. Id. at 67-71. On the same date, the Haggards filed a 

notice of intent to respond and requested a hearing. Id. at 74. On July 25, 

2020, the Haggards filed their response to the State’s motion and reply in 

support of their motion to vacate the order of appropriation and their objections 

to the State’s complaint for appropriation. Id. at 76-86. The Haggards argued 

that the Indiana Supreme Court’s June 8 order extended the March 18 Order so

that tolling continued until July 5, 2020 and because they filed their objections 

on July 2, 2020, the objections were timely. Id. at 78-80. The Haggards further 

contended that they were in fact owners because they had a reserved right in the 

real estate, which was recorded by the Deed. Id. at 81. The Haggards asserted 

that because the State failed to make an offer to purchase the Haggards’ 

reserved right in the real estate prior to filing its complaint, the condemnation 

action was illegal, and the trial court did not have subject matter jurisdiction. 

Id. at 81-85. On July 31, 2020, the trial court overruled the Haggards’

objections and motion to vacate the order of appropriation. Id. at 11. The 

Haggards now appeal.

Discussion and Decision

[9] The State has inherent authority to take private property for public use. Knott v. 

State, 973 N.E.2d 1259, 1262 (Ind. Ct. App. 2012), trans. denied. Eminent 

domain proceedings for seizing private property are powerful instruments of 

government. Id. (citing Sagarin v. City of Bloomington, 932 N.E.2d 739, 744 (Ind.
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Ct. App. 2010), trans. denied, cert. denied, 565 U.S. 826 (2011)). “As long as the 

governmental entity intends to use the land for a public purpose that is 

constitutional, there are few defenses to prevent a taking.” Id. Such powers 

and rights, however, are not unlimited. Id. 

[10] Judicial review of an eminent domain action is “limited to whether the 

condemnation proceedings were legal, whether the condemnor had the 

authority to condemn the property, and whether the property was to be taken 

for a public purpose.” Boyd v. State, 976 N.E.2d 767, 769 (Ind. Ct. App. 2012), 

trans. denied. Additionally, courts have the power to question whether the 

condemnation was fraudulent, capricious, or illegal. Knott, 973 N.E.2d at 1262 

(citing City of Evansville ex rel. Dep’t of Redevelopment v. Reising, 547 N.E.2d 1106, 

1111 (Ind. Ct. App. 1989), trans. denied; State ex rel. Ind. Dep’t of Conservation v. 

Barber, 246 Ind. 30, 36, 200 N.E.2d 638, 640 (1964)). 

[11] The Haggards argue that the trial court erred in overruling their objections to 

the State’s complaint for appropriation and for overruling their motion to 

vacate the order of appropriation. Specifically, they assert that they had good 

cause for their objections because they claimed that the State had failed to 

satisfy statutory conditions precedent to filing its complaint for appropriation. 

The Haggards claim that they are owners who were entitled to a good faith 

offer prior to a lawsuit being filed pursuant to both Indiana Code section 32-24-

1-3 and Indiana Code section 32-24-1-5. The Haggards also contend that the 

trial court erred in overruling their objections and their motion to vacate the 

order of appropriation issued on April 14, 2020 because their objections were 
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timely filed. They argue that the March 18 Order and subsequent extensions of 

that order had tolled all deadlines, as well as judgments and other orders, in all 

civil and criminal matters until July 5, 2020, and therefore, their objections 

were timely filed on July 2, 2020. 

[12] The procedure for the exercise of eminent domain is set out in Indiana Code 

chapter 32-24-1. Initially, a person who seeks to exercise the power of eminent 

domain for public use, the condemnor, must conduct good faith negotiations 

with the owner of the property and make an effort to purchase the property for 

the use intended. Ind. Code § 32-24-1-3(b)(2), (c)(3). If the condemnor does 

not agree with the owner concerning the damages sustained by the owner, the 

condemnor may file a complaint for the purpose of acquiring the property with 

the clerk of the circuit court of the county where the property is located. Ind. 

Code § 32-24-1-4(a).

1 “As a condition precedent to filing a complaint in 

condemnation, . . . a condemnor . . . must, at least thirty (30) days before filing 

a complaint, make an offer to purchase the property[,] . . .[which] must be 

served . . . upon . . . the owner of the property sought to be acquired . . . .” Ind. 

Code § 32-24-1-5(a). For purposes of section 32-24-1-5, owner means “the 

persons listed on the tax assessment rolls as being responsible for the payment 

of real estate taxes imposed on the property” and “the persons in whose name 

1

In addition to the names of the owners of the property, the complaint must state as defendants the names of 

all claimants to, and holders of liens on the property, if known, or a statement that they are unknown. Ind. 

Code § 32-24-1-4(b)(2). 
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title to real estate is shown in the records of the recorder of the county in which 

the real estate is located.” Ind. Code § 32-24-1-2. 

[13] When the complaint is filed, a notice is issued and served on the defendants 

requesting their appearance at a stated time to show cause, if any, why the land 

should not be appropriated. Ind. Code § 32-24-1-6(a). A defendant may object 

to the proceedings: (1) because the court does not have jurisdiction either of the 

subject matter or of the person; (2) because the plaintiff does not have the right 

to exercise the power of eminent domain for the use sought; or (3) for any other 

reason disclosed in the complaint or set up in the objections. Ind. Code 32-24-

1-8(a). Such objections must be filed no later than thirty days after the date the 

notice to appear is served on the owner. Ind. Code § 32- 24-1-8(b)(3). If the 

objections filed are overruled, an order of appropriation is entered and 

appraisers are appointed and ordered to file their report determining the fair 

market value of each parcel of property sought to be acquired and the value of 

each separate estate or interest in the property, the fair market value of all 

improvements pertaining to the property, the damages, if any, to the residue of 

the property of the owner resulting from the appropriation, and any other 

damages that will result to any persons from the construction of the 

improvements in the manner proposed by the plaintiff. Ind. Code § 32-24-1-

8(e); Ind. Code § 32-24-1-9(c). No later than forty-five days after the report of 

the appraisal is mailed to the parties, any party aggrieved by the assessment of 

benefits or damages in the report may file exceptions to the appraisal. Ind. 

Code § 32-24-1-11(a), (b). 
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[14] Here, the State sought to obtain a fee simple title with full limitation of access, 

easement rights with full limitation of access, and temporary right of way for 

building removal, with an expiration three years after commencement of 

construction, to real estate owned by Hillenburg as part of the improvement 

project of I-69. On February 21, 2020, the State filed its Complaint for 

Appropriation of Real Estate with the trial court seeking to appropriate the 

property. Appellants’ App. Vol. II at 15-16. The Haggards assert that the State 

was required to make them an offer prior to filing the complaint. Under 

Indiana Code section 32-24-1-5(a), as a condition precedent to filing a 

condemnation action, the State was required to make an offer to purchase the 

to the owner of the property at issue. However, for purposes of that statute, 

“owner” is defined as only “the persons listed on the tax assessment rolls as 

being responsible for the payment of real estate taxes imposed on the property” 

and “the persons in whose name title to real estate is shown in the records of 

the recorder of the county in which the real estate is located.” Ind. Code § 32-

24-1-2. Under these statutes, the Haggards are not owners of the land at issue 

because they are not listed on the tax assessment rolls, and they are not persons 

in whose name title in the property is shown in the recorder’s records. Their 

name appears on the deed as easement holders, an easement for ingress/egress 

and to erect /maintain a billboard. Under Indiana law, an easement is merely a 

right to use the land of another. Harlan Bakeries, Inc. v. Muncy, 835 N.E.2d 

1018, 1033 (Ind. Ct. App. 2005). 
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[15] The State was not required to provide a pre-complaint offer to the Haggards 

because they do not have title to the real estate the State is seeking to condemn. 

As holders to an easement interest in the property, the Haggards are appropriate 

defendants to the State’s condemnation suit for determination of any just 

compensation they are due for their interest in the easement. Ind. Code § 32-

24-1-4. However, an interest in property alone is not ownership of the real 

estate entitled to an offer as a condition precedent to the State’s condemnation

suit. See Ind. Code § 34-24-1-2; Ind. Code § 34-24-1-3 (requiring the condemnor 

to make a good faith effort to purchase the property from the owner of the 

property). The owner of the property that the State seeks to condemn, who was 

entitled to an offer to purchase as a precondition to the filing of a complaint,

was Hillenburg because he holds title to the property at issue, is listed on the tax 

assessment rolls as being responsible for the payment of real estate taxes 

imposed on the property, and is the person in whose name title to real estate is 

shown in the records of the recorder of the county in which the real estate is 

located. Ind. Code § 32- 24-1-2. 

[16] When the Haggards conveyed the real estate to Hillenburg in 1981 by warranty 

deed, the Haggards reserved only an easement on a portion of the property for 

the purpose of maintaining a billboard. Appellant’s App. Vol. II at 23-25. 

Although an easement is an interest in property, as previously stated, it “is 

merely the right to use the land of another.” Harlan Bakeries, Inc., 835 N.E.2d at

1033. It is not ownership of the underlying land, and one may not 

simultaneously hold title to and an easement in the same piece of property. 
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Collins v. Metro Real Estate Servs. LLC, 72 N.E.3d 1007, 1014 (Ind. Ct. App. 

2017). Thus, the Haggards are not landowners with title to the property sought 

to be condemned and were not entitled to a pre-complaint offer to purchase 

their easement. 

[17] The Haggards assert that Indiana Code section 32-24-1-3 provides an 

alternative basis upon which they were entitled to receive an offer to purchase,

prior to the State’s filing of its complaint. However, that provision does not 

require the State to make them an offer to purchase either. Instead, it requires a 

person who seeks to exercise the power of eminent domain for public use to

conduct good faith negotiations with the owner of the property and to make an 

effort to purchase “for the use intended the land, right-of-way, easement, or 

other interest, in the property.” Ind. Code § 32-24-1-3(b)(2), (c)(3). As 

previously concluded, the Haggards’ easement is not ownership of the land and 

is merely the right to use the land of another. Harlan Bakeries, Inc., 835 N.E.2d 

at 1033. Therefore, the owner of the property from whom the State is seeking 

to purchase is Hillenburg, who holds fee simple title in the land. We, therefore, 

conclude that the Haggards were not entitled to receive a good faith offer to 

purchase the land before the State filed its complaint to condemn it. The trial 

court did not err in overruling the Haggards’ objections and their motion to 

vacate the order of appropriation.

[18] As to the Haggards’ contention that the trial court erred in overruling their 

objections and their motion to vacate the order of appropriation issued on April 

14, 2020 because their objections were timely filed as the March 18 Order and 
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subsequent extensions tolled all deadlines, as well as judgments and other 

orders, in all civil and criminal matters until July 5, 2020, we do not find any 

error. The trial court did not deny their objections because they were not timely 

filed. The order stated that the trial court “finds the Defendant’s Objections to 

Plaintiff’s Complaint and Motion to Vacate are insufficient as a matter of law 

without the necessity of conducting a hearing.” Appellants’ App. Vol. II at 11. 

Although the Haggards allege that the trial court overruled their objections and 

motion to vacate the appropriation at least partly due to untimeliness, the trial 

court’s order does not reflect that, and as we have determined above, their 

objections had no merit. Further, the Haggards have not shown how they were 

prejudiced because they were allowed to file their objections on July 6, 2020, to

which the State filed a motion to overrule and the Haggards filed a response to,

and the trial court, thereafter, reviewed such objections and denied them in the 

order from which the Haggards now appeal. We do not find that the trial court 

erred in overruling the Haggards’ objections and motion to vacate the order of 

appropriation.

[19] Affirmed.

Bradford, C.J., and May, J., concur.