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Cole v. United States

*fn*: March 11, 1981.

DOROTHY COLE, PLAINTIFF-APPELLANT,
v.
UNITED STATES OF AMERICA, STATE OF INDIANA, AND SOIL SYSTEMS OF INDIANA, INC., DEFENDANTS-APPELLEES .



Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. No. NA 80-C-73 -- James E. Noland, Judge .

Before Fairchild, Chief Judge, and Swygert and Bauer, Circuit Judges.

Author: Per Curiam

This appeal is the latest in a series of attempts by plaintiff over the past fifteen years to ignore a condemnation by the United States of a parcel of land owned by plaintiff and her husband. The parcel, designated Tract No. 4000 in the proceeding, is located in Crawford County, Indiana.

On May 12, 1980 plaintiff filed an "Application for Preliminary Injunction" against the United States, the State of Indiana, and the Soil Systems of Indiana, Inc. in the Crawford Circuit Court, alleging in pertinent part:

On May 13, 1980 ... all defendants are trespassing on plaintiffs' property without just cause, having failed to conform to Indiana Code 4-21-4-1 and Indiana Code 4-21-4-2.... Plaintiff has no adequate remedy at law or otherwise for the harm or damage of trespass and disruption of turf and soil by defendants because defendants allege she has no ownership, as evidenced by alleged condemnation in U.S. Federal Court....

Attached to that petition was an affidavit which stated:

That the land title records of Crawford County, State of Indiana, show title free and clear to the Plaintiff, and that the lis pendens notice filed of condemnation by the United States of America failed to comply with the jurisdictional requirement of IC 4-21-4-1 and IC 4-21-4-2; NA 66-C-40 lacking jurisdiction.

On May 20, 1980 the United States Attorney filed a petition in the United States District Court for the Southern District of Indiana to remove the suit to that court.*fn** Simultaneously he moved to dismiss the suit and notified plaintiff's counsel of his action. The latter entered his appearance but did not respond to the motion. In spite of the removal, plaintiff sought to press her suit in the state court.

On July 16 the federal court granted the motion to dismiss. After noting that the United States is the "sole and exclusive owner" of the land involved in this action, the court enjoined the plaintiff from interfering with the Government's possession. Cole was enjoined from any further attempts to activate the instant action in the state court and from the future institution of any similar actions. Plaintiff appeals from both the judgment of dismissal and the injunctive order.

I

The background facts leading to the present suit are as follows. On June 2, 1966 the United States began a condemnation proceeding in the federal district court to acquire several parcels of land in Crawford County, including the parcel owned by plaintiff and her husband. With its complaint, the Government filed a declaration of taking pursuant to 40 U.S.C. ยง 258a and deposited a sum of money with the clerk of the court as estimated just compensation. The court ordered that immediate possession of the land be given to the United States.

No objection was asserted by the Coles to the taking. They appeared by counsel, however, and requested a trial by jury. The request was granted. The jury found just compensation for the Cole property was $2,100 and judgment was accordingly entered for that amount. The judgment contained the following language, "The title to the estate set forth in the Declaration of Taking in the land described herein as Tract No. 4000 is vested in the United States of America." There was no appeal from the judgment.

Over the following years, the Coles made sporadic attempts to interfere with the Government's possession of the condemned parcel. The Government sought and was granted several writs of assistance, and two contempt citations were issued against the Coles. The present suit is the latest ...


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