The city of Kokomo wants Howard County out of its business when it comes the Industrial Heritage Trail, and it is suing the county to try to make it happen.

On the heels of Howard Superior Court I Judge William Menges’ act to find Mayor Greg Goodnight in direct contempt of court on Aug. 26, the city filed suit against the county, requesting that the courts prevent further interference from the county concerning the construction of the trail as the city sees fit.

In the “factual background” of the suit, the city contends that the trail doesn’t encroach upon county property and that there are multiple points of access to the courthouse. One of those is located on Buckeye Street where the trail is being constructed. But there is no documentation that compels the city to allow that access to persist.

“In order to receive access or to have a curb cut on the City’s right of way, property owners, residents, and developers are required to obtain a permit from the City,” the complaint reads. “Although the City has allowed the County to use the Buckeye Street Driveway, the County does not have an easement across the City’s property for the Buckeye Street Driveway, and the County does not have a permit from the City for that access.”

The city contends that its original trail design called for the elimination of the Buckeye Street access, as a safety measure for pedestrians using the trail. The county opposed this, so the city allowed for a 12-foot wide access point. On July 25, Judge Menges met with the mayor to discuss widening that access, and the city agreed to increase the width to 18 feet, then began work on the project.

“During construction, temporary parking for the Howard County Sheriff s Department was designated on the south side of the Courthouse,” the complaint reads. “This temporary adjustment did not obstruct the work of the Howard County Sheriff’s Department or the County’s business, nor did it pose a safety risk.”

However, the city claims that the concession did not mollify the county, and that Menges and the county “continued to attempt to exercise control over the City’s right of way and the Trail Extension.” This dispute culminated in the recent contempt conviction handed down by Menges against Goodnight on Aug. 26.

The city’s position is that Buckeye Street access is neither necessary nor required, and it is asking the court to affirm the city’s authority to construct the trail as it sees fit.

“Whether the access for the Buckeye Street Driveway is twelve (12) feet or eighteen (18) feet - or whether the City permits no access across the Trail Extension to Buckeye Street - does not undermine the health, safety, welfare, or security of the County business, particularly when considering that the County has other means of access to the Courthouse without requiring vehicular traffic across the Trail Extension,” the complaint reads.

Indiana law does give the city exclusive jurisdiction over streets and sidewalks, including the trail. And the city contends that the county has no specific right to have access to the courthouse from Buckeye Street. Further, the city contends that the resistance to the trail construction exhibited by the county has caused the project to be delayed.

Therefore, the city is asking the court to enter a judgment declaring that the city has exclusive jurisdiction over the right of way and the trail, including the existence or width of any Buckeye Street access for the county. Further, the city requests that the county be prevented from further interference in the project.

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“The City of Kokomo, by counsel, respectfully request that this Court ... enter an order prohibiting or enjoining the County, including all representatives, officials, and agents of Howard County, in whatever capacity, and any of Howard County’s agencies, offices, or departments, from interfering with or disrupting the City’s development of its Trail Extension,” the complaint reads.

Along with this complaint, the city requested a change of venue so that the suit may be heard in an adjoining county, specifically because the county is named in the suit.

Howard County Attorney Larry Murrell responded to the filing of the suit with a release to the media, explaining that he and Assistant County Attorney Alan Wilson and will represent the county in the suit, rather than hiring outside counsel.

“This lawsuit is another step in the City’s ongoing campaign to usurp the County’s inherent authority to operate a safe and secure courthouse,” said Murrell. “The County continues to support the downtown trail project, but unless and until the City adequately addresses the County’s security requirements, we will vigorously defend this suit. This will include scheduling the sworn depositions of city officials.”

Legal experts in the community believe that the county may choose to invoke Indiana’s adverse possession statute as its defense. Under this law, one entity can claim possession of another entity’s property by meeting certain conditions, the first of which is spelled out in IC 32-23-1-1.

“The right-of-way, air, light, or other easement from, in, upon, or over land owned by a person may not be acquired by another person by adverse use unless the use is uninterrupted for at least twenty (20) years.”

Since the county has had its Buckeye Street access point since the 1930s, the uninterrupted use requirement appears to have been met. However, there are several other conditions.

Possession of the disputed property or easement must be “open and notorious,” which means that it is obvious to anyone that the county possesses the easement to Buckeye Street. It also must be actually occupied, exclusively and continuously. And the possession must take place without permission from the original owner.

The city’s suit, claiming that the county has no documented easement or permission for access meets this final criteria.

There is just one final criteria which must be met that poses a problem for the county. It must have had paid taxes on the property for 10 consecutive years in order to make the claim. As a governmental entity, it does not pay property taxes, and likely could not demonstrate that it had paid taxes on the property containing the easement.