By John Estridge
Franklin County Commissioners want a judge to tell them if there is or ever was a county line road off Indiana 1 south of South Gate.
And if there was a road, is it now, at the very least, a public way?
Commissioners discussed the situation with the county attorney, Grant Reeves, Tuesday morning, Dec. 1. The discussion came just more than half the way through the two-hour public meeting, which was dominated by a discussion of proposed amendments to the county’s zoning code regarding solar energy. (See earlier article https://whitewatervalleynewsandsports.com/proposed-1300-acre-solar-field-in-bath-twp-causes-changes-to-fc-zoning-ordinance/ ).
Prior to the public meeting, the commissioners held an executive session regarding litigation. Commissioners can meet in executive session for subjects such as litigation. Executive sessions are not open to the public, but commissioners cannot make a decision in an executive session. They can only discuss the matter. Decisions have to be made in a public session.
Through the course of several months Brookville attorney John Bear and several landowners he represents have attended commissioners’ meetings and lobbied for the county to open up County Line Road also known as Offset Road. It runs from Indiana 1 west across properties owned by the Wilhelm extended family.
Property in that area is zoned light industrial and is open to commercial development, especially in Dearborn County. Not too many years ago St. Leon expanded its town limits north to the county line.
Without the road frontage, some property parcels become landlocked and that destroys the property values, Bear said.
And Indiana law says that the northern county maintains a county line road.
Throughout the years, different property owners have come before the commissioners seeking old township roads to be opened by the commissioners and treated as county roads.
Up to the 1930s, roads were maintained by townships with property owners working off their property taxes by hauling gravel to the township roads and then spreading the gravel on the roads. In the 1930s, the county took over maintenance of the roads from the townships. However, the county did not accept all the township roads and those township roads not accepted by the county are not more than lines on historic maps. They do not carry the zoning significance of a county road, giving access to property or road frontage to the property.
According to Bear, what makes this different from other township roads is this was mentioned in commissioners minutes as a county road around 1853, and apparently, the county receives money from the state as it remains on the county’s road inventory.
Another landowner, Ernest Hoog, has become involved in the process. He owns property at the intersection of Indiana 1 and what the Wilhelm family maintains is a road. Hoog has argued it is not a road and has argued it is his driveway and nothing else. He said he has paperwork that supports his argument.
At one time, two of the three commissioners, Tom Linkel and Gerald Wendel, sided with the Wilhelm family and promised to bring the road up to where it was historically. And even that is argued. The Wilhelm family wants a gravel road while the commissioners have stated there is no evidence it was ever a gravel road.
After Hoog approached the commissioners with his evidence, the commissioners put the hold on improving the road until it was determined exactly what the status of the road, if there is a road, is.
Reeves said he will ask the court for either a declaratory judgment or to quiet title.
According to law.cornell.edu, a declaratory judgment is “a binding judgment from a court defining the legal relationship between parties and their rights in a matter before the court.”
According to investipedia.com, “A quiet title action, also known as an action of quiet title, is a circuit court action—or lawsuit—that is filed with the intended purpose to establish or settle the title to a property. … The lawsuit is meant to remove, or “quiet,” a claim or objection to a title.”
At the Dec. 1 meeting, Linkel said that is the right direction to go.
“I think we have to force the issue,” Linkel said. “It is either that or us, as a board, to make a decision and say it either is a public way or not. And then they could contest it. We could go that way.”
Commissioner Tom Wilson made the motion to have Reeves make the initial filing as the attorney had suggested. All the commissioners were in agreement.
“We’ll find out if it’s a county road or not,” Wilson said.
