Alabach v. Northern Indiana Public Service Co.

• Decision Date: 16 June 1975
• Docket Number: No. 2--1273A274,2--1273A274
• Citation: 329 N.E.2d 645,164 Ind.App. 471
• Parties: Petition of John ALABACH et al., Appellants (Petitioners Below), v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 645

329 N.E.2d 645

164 Ind.App. 471

Petition of John ALABACH et al., Appellants (Petitioners Below), v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee (Defendant Below).

No. 2--1273A274.

Court of Appeals of Indiana, Second District.

June 16, 1975.

Rehearing Denied July 28, 1975.

Harris & Welsh, Chesterton, for appellants.

Joseph T. Morrow, David C. Jensen, Schroer, Eichhorn & Morrow, Hammond, for appellee.

BUCHANAN, Judge.

CASE SUMMARY

Petitioners-appellants (Landowners) seek review of an Order of the Public Service Commission (Commission) dismissing their petition objecting to a proposed right of way for Appellee Northern Indiana Public Service Company (NIPSCO), claiming that the Commission has subject matter jurisdiction to determine the reasonableness of a proposed electric transmission right of way.

FACTS

The undisputed facts are:

On February 22, 1973, the Landowners filed their 'Petition to Restrict Location of Right of Way for Electrical Transmission Line to Existing Corridors of Utility Easements' objecting to NIPSCO's proposed right of way for an electrical transmission line, because it unreasonably divided the landowners' property. The petition further alleged that better routes were available nearby, that the proposed location is unreasonable and unnecessary and should be relocated by the Commission, or at least the Commission should investigate the necessity and reasonableness of the proposed easement.

On March 24, 1973, NIPSCO, an Indiana corporation organized as a public utility to supply electrical energy and natural gas to the public, filed its motion to dismiss the Petition asserting that the Commission does not have subject matter jurisdiction over a public utility such as NIPSCO in the exercise of its power of eminent domain.

The Landowners responded to NIPSCO's motion to dismiss by pointing to IC 1971, 8--1--2--54 (Burns Code Ed.) (the general complaint statute) as the source of the Commission's authority over location of transmission lines.

The Commission then entered an order granting NIPSCO's motion to dismiss for lack of subject matter jurisdiction observing that if the Commission could alter the location of condemnations its action would be in conflict with the legislative intent of IC 1971, 32--11--3--1, --2 (Burns Code Ed.) (The condemnation statute) ¹ allowing public utilities, such as NIPSCO, to exercise the power of eminent domain.

ISSUE

Does the Public Service Commission have authority by virtue of the general complaint statute to order NIPSCO to relocate its proposed transmission lines? The Landowners contend that the general complaint statute of the Public Service Commission Act of 1913, IC 1971, 8--1--2--1 et seq., gives the Commission the power to determine and investigate the reasonableness of proposed locations for public utility rights of way.

NIPSCO asserts that the condemnation statute and supporting case authority authorizes public utilities such as NIPSCO to freely exercise the power of eminent domain without seeking the prior approval of the Commission.

DECISION

CONCLUSION--It is our opinion that the general complaint statute does not authorize the Public Service Commission to order NIPSCO to relocate its proposed transmission lines.

Landowners have long sought to whittle away at a public utility's discretion in locating rights of way . . . unsuccessfully so far.

Beginning with Lowe v. Ind. Hydroelectric Co. (1926), 197 Ind. 430, 151 N.E. 220, an Indiana landowner sought to limit condemnation by requiring a public utility to obtain a certificate of public convenience and necessity from the Commission before undertaking condemnation . . . and lost.

Lowe was followed by Reuter v. Milan Water Co., Inc. (1935), 209 Ind. 240, 198 N.E. 442; Guerrettaz v. Public Service Co. of Indiana (1949),227 Ind. 556, 87 N.E.2d 721; Dahl v. Northern Ind. Public Service Co. (1959), 239 Ind. 405, 157 N.E.2d 194; Graham Farms, Inc. v. Indianapolis Power & Light Co. (1968), 249 Ind. 498, 233 N.E.2d 656, ² all of which firmly and specifically established the principle that a utility such as NIPSCO need not obtain prior Commission approval or a certificate of public convenience and necessity before exercising its power of condemnation.

Illustrative of unerring judicial devotion to this rule is Graham Farms, Inc.:

As we have previously pointed out, § 3--1713, supra, (32--11--3--1, --2 (the condemnation statute)) permits any corporation qualified thereunder, . . . to exercise the right of eminent domain, without first obtaining from the Public Service Commission of Indiana the certificate required under § 54--724, Burns, supra (8--1--8--1, et seq.) (Emphasis not ours.)

249 Ind. at 513--514, 233 N.E.2d at 665.

Even more appropos to the precise question before us is the court's statement in Guerrettaz:

We find nothing in the law requiring the condemnor in the proceeding to pursue a route on a direct line from the starting point to its terminal without deviation. The right to make reasonable or necessary deviations in the route selected belongs to the condemnor under the statute. Section 3--1714, supra (IC 32--11--3--2, pertaining to appropriations of property for easements). If in making such deviations lands are required that would not be if the line ran straight from the point of beginning to the point of termination, such land is subject to condemnation.

The condemnor was not compelled to take the shortest route between the starting point and the terminal of the line proposed. Many things may intervene, which from a public utility standpoint, and a standpoint of public safety and public convenience, make deviations necessary.

The width of the strip of real estate to be taken is a practical question, and to some extent depends upon what the condemnor deems necessary for the uses and purposes of its business. (Emphasis supplied.)

227 Ind. at 561--562, 87 N.E.2d at 724.

These cases form a phalanx of strength over which Landowners seek to propel themselves by using the general complaint statute as a fulcrum. It was enacted in 1913 and provides:

IC 8--1--2--54. Complaints--Investigations and Hearing. Upon a complaint made against any public utility by any mercantile, agricultural or manufacturing society or by any body politic or municipal organization or by ten (10) persons, firms, corporations or associations or ten (10) complainants of all or any of the aforementioned classes, or by any public utility, that any of the rates, tolls, charges or schedules or any joint rate or rates in which such petitioner is directly interested are in any respect unreasonable or unjustly discriminatory, or that any regulation, measurement, practice or act whatsoever affecting or relating to the service of any public utility or any service in connection therewith, is in any respect unreasonable, unsafe, insufficient or unjustly discriminatory, or that any service is inadequate or cannot be obtained, the commission shall proceed, with or without notice, to make such investigation as it may deem necessary or convenient. But no order affecting said rates, tolls, charges, schedules, regulations, measurements, practice or act, complained of, shall be entered by the commission without a formal public hearing. (Acts 1913, ch. 76, § 57, p. 167.) (Emphasis supplied.)

(General complaint statute)

The term 'service' as used in the Act is defined in IC 1971, 8--1--2--1:

The term 'service' is used in this act in its broadest and most inclusive sense and includes not only the use or accommodation afforded consumers or patrons but also any product or commodity furnished by any public or other utility in the plant, equipment, apparatus, appliances, property and facility employed by any public or other utility in performing any service or in furnishing any product or commodity and devoted to the purposes in which such public or other utility is engaged and to the use and accommodation of the public. (Emphasis supplied.)

The thrust of the general complaint statute is to afford certain persons a remedy against public utilities arising out of their operations after they are providing service. It is silent as to any remedy arising out of the acquisition of property and location of rights of way. The references to 'service' and 'property' by context are limited to operating public utilities. Landowners can take no solace from these references.

It appears to be in keeping with the general condemnation statute which endows certain corporations (including NIPSCO) with the power of eminent domain. This power emanates from the Eminent Domain Act first enacted in 1905:

Any corporation organized under the law of the state of Indiana, authorized by its articles of incorporation to furnish, supply, transmit, transport or distribute electrical energy, . . . to the public or to any town or city, . . . is hereby authorized and empowered to take, acquire, condemn and appropriate land, real estate or any interest therein, for carrying out such purposes and objects together with all accommodations, rights and privileges deemed necessary to accomplish the use for which the property is taken . . .. (Emphasis supplied.)

IC 32--11--3--1.

The condemnor may take, acquire, condemn and appropriate a fee simple estate, title and interest in such quantity or amount of land as it deems necessary for its proper uses and purposes, except that for rights-of-way, the condemnor shall take, acquire, condemn and appropriate an easement. (Emphasis supplied.)

IC 32--11--3--2.

(The general condemnation statute.)...