                                                           FILED
                                                         Mar 30 2012, 9:38 am
FOR PUBLICATION
                                                                CLERK
                                                              of the supreme court,
                                                              court of appeals and
                                                                     tax court




ATTORNEYS FOR APPELLANTS:                      ATTORNEY FOR APPELLEE:

RUSSELL L. BROWN                               RICHARD W. LORENZ
MICHAEL P. MAXWELL                             Hickam & Lorenz, PC
Clark, Quinn, Moses, Scott & Grahn, LLP.       Indianapolis, Indiana
Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

LEWIS J. RICHARDSON, and                       )
LAUREL RICHARDSON,                             )
                                               )
      Appellants-Petitioners,                  )
                                               )
             vs.                               )      No. 60A01-1106-PL-228
                                               )
BOARD OF COMMISSIONERS OF                      )
OWEN COUNTY,                                   )
                                               )
      Appellee-Respondent.                     )


                     APPEAL FROM THE OWEN CIRCUIT COURT
                      The Honorable Teresa D. Harper, Special Judge
                            Cause No. 60C01-0909-PL-567



                                     March 30, 3012

                             OPINION–FOR PUBLICATION

BAKER, Judge
       Today we consider whether the petitioners were aggrieved parties and had

standing to challenge the County Commissioners’ decision to vacate a portion of a

roadway that provided an access to a cemetery where their daughter was buried. We hold

that the petitioners did not suffer a special or unique injury above that which the general

public sustained. Moreover, the evidence established that there were alternate entrances

to the cemetery so the petitioners were not hindered within the meaning of the statute

from gaining access to their daughter’s grave. Thus, the petitioners were not entitled to

challenge the County Commissioners’ decision to vacate a portion of the roadway.

       Appellants-petitioners   Lewis    and     Laurel   Richardson   (collectively,    the

Richardsons), appeal the trial court’s judgment that vacated a portion of a roadway, in

favor of the Board of Commissioners of Owen County (Commissioners).                     More

particularly, the Richardsons maintain that the trial court erred in determining that they

were not aggrieved parties and, therefore, could not appeal the vacation ordinance under

Indiana Code section 36-7-3-12(f).

       We conclude that because the Richardsons are not abutting landowners to the

vacated roadway, the trial court correctly determined that they lacked standing as an

aggrieved party to remonstrate against the vacation of the roadway. In other words, the

Richardsons have failed to demonstrate that they have sustained an injury that is unique

or special to them.

       Thus, we affirm the judgment of the trial court.

                                         FACTS

                                             2
       The Richardsons own burial rights for ten plots in Splinter Ridge Cemetery

(Cemetery) in Owen County. Their daughter, Kirsten, is at the Cemetery.

       Sometime in 2009, the Richardsons requested that the Cemetery be placed on the

list of historic cemeteries. The Cemetery is located along the east side of Splinter Ridge

Road (Splinter Ridge), which was, or is, a county road that appeared on the county maps

and records for years. The records that the County maintained initially reflected that

Splinter Ridge ran from Vandalia or Chapman Road in a southerly direction to a point

known as Patricksburg Road.

       However, as early as 1937, the road map that was submitted into evidence showed

that Splinter Ridge appeared as a solid line, which meant there was a continuously

maintained county road from Patricksburg Road to Fish Creek or about one third of its

original length. The remainder of Splinter Ridge appeared as a dotted line, meaning that

the county roadbed had been abandoned for the rest of the way north to Vandalia.

       In 1997 or 1998, Junior Sips had inherited a large portion of the property just north

of the Cemetery on both sides of Splinter Ridge. At some point, without the permission

of any county authority, Sips installed a gate across Splinter Ridge just north of the

property line to the Cemetery.

       On May 1, 2009, Sips and Danzer Forest Land, Inc., (Danzer), as owners of all the

property adjacent to a portion of Splinter Ridge, filed a petition to permanently vacate the

adjacent portion of the road.     It is undisputed that Sips and Danzer were the only



                                             3
landowners abutting the portion of the road sought to be vacated. In relevant part, the

petition requested

      4. [That the] roadway be permanently vacated as the same was in fact
      abandoned by [the] county approximately 60 plus years ago and has not
      been maintained by the County during that entire period of time and has not
      been used by the public as a roadway for the same period of time. In fact
      said roadway has generally disappeared and is not at all visible in many
      portions of the area petitioners are requesting be formally vacated.

      5. The formal vacation of said section of roadway is in the public and
      economic interest of Owen County . . . in that it would not interfere with
      the flow of traffic as it has existed for the past 60 plus years, the clearing of
      timber, grading and reestablishment of a roadbed would be necessary for
      the road to actually be used by the public.
                                                  ...
      7. The formal vacation of the roadway would not change the circumstances
      of any other landowner aside from the petitioner or negatively impact the
      traffic flow and pattern of transportation in Owen County from what it has
      been for the past 60 plus years.

Appellants’ App. p. 105-06.

      Thereafter, the Richardsons filed a request with the Commissioners, asking for the

removal of the gate that Sips had installed, and that overgrown portions of the road be

repaired. At the Commissioners’ meeting on May 4, 2009, the Richardsons presented

argument about the importance of reopening the entire length of Splinter Ridge because

of their ownership in the Cemetery plots.        The Sips’s attorney then addressed the

Commissioners regarding the pending application to vacate a portion of Splinter Ridge

and presented Sips’s testimony in response to the Richardsons’ request.

      The evidence established that Sips, who was born in 1939, remembered the road

being an unimproved path when he was approximately ten years old. The County had not

                                             4
maintained the road since around 1950, and Sips testified that he and his family had

graded it and placed gravel on it for decades. The only house located on the road was

Sips’s father’s former residence, which had not been occupied since the late 1990s. Sips

testified that the road was impassable in much of its length north of the Cemetery.

Moreover, a bridge over a nearby creek was no longer there.

      Sips reported that there were at least two alternate routes to access the Cemetery.

In fact, Sips stated that no one had accessed the Cemetery by way of Splinter Ridge for

decades because a portion of it had been abandoned and overgrown. Various exhibits

were presented to the Commissioners showing the roadway existing on a 1937 highway

map and later maps showing the dotted line where the roadbed used to exist in 1950,

1972, and 2002. At the conclusion of the meeting, the Commissioners took the matter

under advisement.

      The petition to vacate was placed on the Commissioners’ May 18th meeting

agenda. At that meeting, Sips’s counsel again offered to reiterate the evidence that was

presented at the earlier meeting in response to the Richardsons’ request. The

Commissioners implicitly agreed to incorporate the prior evidence by reference and

asked no further questions. Sips’s counsel pointed out at the meeting that both parties

had previously presented evidence that between 1950 and 1980, Splinter Ridge had

completely dropped off the county road system.

      The evidence established that the Richardsons were not landowners who abutted

the road requested to be vacated. The Richardsons then presented evidence and argument

                                           5
against the petition to vacate. The Richardsons maintained that they were entitled to

oppose the petition because vacating the road would hinder public access to a church,

school, or other public buildings or places.       The Richardsons alleged that the gate had

encouraged vandalism, littering, and loitering at the Cemetery, and that removing the gate

and reopening Splinter Ridge would reduce the risk of further desecration to the

Cemetery. Appellants’ App. p. 89, 90, 120.

      One of the commissioners pointed out that placing a bridge over the creek to

access the Cemetery would cost anywhere from $500,000.00 to $1,000,000.                 The

Richardsons’ counsel suggested that the County was maintaining Splinter Ridge, but the

highway superintendent indicated that Sips was the only person who was maintaining the

roadbed.

      After considering the evidence and argument, the Commissioners voted 3-0 to

approve the vacation of the road. On August 17, 2009, the Commissioners signed

Ordinance No. 2009-15, vacating the requested portion of Splinter Ridge.

      On September 16, 2009, the Richardsons filed their complaint in the trial court

requesting damages and an order to set aside the vacation ordinance. At a hearing on

July 23, 2010, the Commissioners filed a motion to dismiss the Richardsons’ complaint,

claiming that they had failed to follow proper procedures, including the filing of an

appeal bond under Indiana Code section 36-2-2-28.            Moreover, the Commissioners

maintained that the Richardsons could not appeal the decision because they are not

aggrieved persons as defined in Indiana Code section 36-7-3-12(f).

                                               6
        On May 20, 2011, the trial court dismissed the Richardsons’ complaint, based on a

determination that the Richardsons are not aggrieved persons under the statute and,

therefore, are not eligible to appeal. More particularly, the trial court ruled that

        The Richardsons do allege that they would be inconvenienced by the
        vacation, but they do not allege a special injury that would completely
        deprive them of access to their daughter’s grave and their plots.

        Taking as true that the Richardsons own the plots and their daughter is
        buried in one of their plots, the evidence presented does not cut them off
        from those plots. An alternate entrance to the cemetery is available and the
        inconvenience of using the alternate interest is not a special injury.

        The Richardsons’ injury falls under the doctrine of damnum absque injuria,
        which means that while they may have suffered damage, they were without
        legal injury. . . . Based on the pleadings and other evidence submitted by
        the Richardsons, the Court finds that they have not suffered a special injury.

                                       IV. Conclusion

        Based on the complaint, briefs, and other submissions by the Parties, the
        Richardsons did not suffer a special injury as defined by law and, therefore,
        cannot appeal the vacation ordinance under I.C. 36-7-3-12.

Appellants’ App. p. 16-17. The Richardsons now appeal.

                              DISCUSSION AND DECISION

                                   I. Standard of Review

        Where, as here, the facts are not in dispute, the question of subject matter

jurisdiction is a pure question of law and the trial court’s decision should be reviewed de

novo.    H.D. v. BHC Meadows Hosp., 884 N.E.2d 849, 852 (Ind. Ct. App. 2008).

Deference is not afforded to the trial court’s conclusion because we evaluate the issues

that are deemed questions of law. Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind. 2000).

                                               7
Here, because the facts were undisputed and the trial court ruled on a pure question of

law, namely, whether the Richardsons were aggrieved persons under Indiana Code

section 36-7-3-12, we will apply a de novo standard of review as to the trial court’s

determination that the Richardsons cannot challenge the ordinance vacating a portion of

Splinter Ridge.




                            II. The Richardsons’ Contentions

      In addressing the issue as to whether the trial court’s determination that the

Richardsons were aggrieved parties and should be permitted to challenge the vacation

ordinance, we quote, in part, from McFarland v. Pierce, 151 Ind. 546, 548, 45 N.E. 706,

706-07 (1897), where it was observed that

      The word ‘aggrieved’ . . . refers to a substantive grievance, a denial of some
      personal or property right or imposition upon a party of a burden or
      obligation. . . . [Citations omitted]. To be aggrieved is to have legal right
      the infringement of which by the decree complained of will cause pecuniary
      injury. [Citations omitted]. . . . The Appellees must have a legal interest
      which will be enlarged or diminished by the result of the appeal. [Citations
      omitted].

      In this case, the Richardsons claim that they were entitled to challenge the

vacation proceeding in accordance with Indiana Code section 36-7-3-12 and -13. Indiana

Code section 36-7-3-12 provides that

      (a) Persons who:

             (1) own or are interested in any lots or parts of lots; and

                                             8
       (2) want to vacate all or part of a public way or public place in or
       contiguous to those lots or parts of lots;

may file a petition for vacation with the legislative body of:

       (A) a municipality, if all or any part of the public way or public
       place to be vacated is located within the corporate boundaries of that
       municipality; or


       (B) the county, if all or the only part of the public way or public
       place to be vacated is located outside the corporate boundaries of a
       municipality.


(b) Notice of the petition must be given in the manner prescribed by
subsection (c). The petition must:

       (1) state the circumstances of the case;

       (2) specifically describe the property proposed to be vacated; and

       (3) give the names and addresses of all owners of land that abuts the
       property proposed to be vacated.


       (c) The legislative body shall hold a hearing on the petition within
       thirty (30) days after it is received. The clerk of the legislative body
       shall give notice of the petition and of the time and place of the
       hearing. . . .
                                           ...

 (d) The hearing on the petition is subject to IC 5-14-1.5. At the hearing,
any person aggrieved by the proposed vacation may object to it as provided
by section 13 of this chapter.


(e) After the hearing on the petition, the legislative body may, by
ordinance, vacate the public way or public place. The clerk of the
legislative body shall furnish a copy of each vacation ordinance to the
county recorder for recording and to the county auditor.

                                      9
       (f) Within thirty (30) days after the adoption of a vacation ordinance, any
       aggrieved person may appeal the ordinance to the circuit court of the
       county. The court shall try the matter de novo and may award damages.

Indiana Code section 36-7-3-13, states in relevant part that

       A remonstrance or objection permitted by section 12 of this chapter may be
       filed or raised by any person aggrieved by the proposed vacation, but only
       on one (1) or more of the following grounds:
                                              ...

       (3) The vacation would hinder the public’s access to a church, school, or
       other public building or place.

       In applying these statutes to the circumstances here, the evidence presented to the

Board demonstrates that the northern 2/3 of Splinter Ridge has been closed and

impassable for decades. Sips testified that there had been no traffic north of his parents’

home since before 1950.       Appellants’ App. p. 73.      Photographs of the road were

submitted showing gravel on the path, while others showed a creek with no bridge

traversing it, farm fields where the road ran in the past, and completely impassable areas

that were overgrown with brush and trees. Id. at 107-19.

       Sips also testified that the County had not maintained the road for years and that

any gravel that was there had been placed on it by him or his family.           Id. at 86.

Ironically, the Richardsons’ petition to reopen the road infers that the Richardsons

recognized and appreciated that the road was impassable and would need significant

remediation to restore it to any level of operation which would satisfy County and State

specifications.


                                            10
       In essence, the County’s abandonment and decades of non-use have disengaged

this roadbed from the active county highway system. Indeed, the Richardsons’ petition

seeks to reopen the roadbed by removing the undergrowth, excavating an appropriate

roadbed and surface, and building a bridge using specifications that are consistent with a

highway servicing this area. However, we cannot say that the Richardson’s petition is

adequate to compel the Commissioners to build the new road and it does not serve as

justification for opposing the vacation.

       As discussed above, the Commissioners identified a number of alternative routes

of travel to the Cemetery from the north and other directions. And there is no evidence

demonstrating that the Richardsons have ever needed to use the overgrown, abandoned

part of Splinter Ridge to access the cemetery where their daughter is buried and where

the remainder of their plots are located.

       In short, the Richardsons have continued to visit the gravesites without the

availability of the specific route that they are seeking to reopen.        The evidence

demonstrates that the ability of the general public is not interfered or hindered anymore

than it has been for the last five decades, or more. Finally, we note that the injury of

which the Richardsons complain is not unique or special to them but rather is the same as

the general public as a group. For all of these reasons, we conclude that the trial court

properly dismissed the Richardsons’ complaint.

       The judgment of the trial court is affirmed.

DARDEN, J., and BAILEY, J., concur.

                                            11
