Baker v. American Metal Climax, Inc.

• Decision Date: 16 March 1976
• Docket Number: No. 1--974A140,1--974A140
• Citation: 344 N.E.2d 73,168 Ind.App. 445
• Parties: Richard L. BAKER, for himself and on behalf of all the members of the motoring public of the State of Indiana who do or may use State Highway 46 in Vigo County, Indiana, East of Riley, Indiana, Appellant (Plaintiff below), v. AMERICAN METAL CLIMAX, INC., Appellee (Defendant below).
• Court: Indiana Appellate Court

Page 73

344 N.E.2d 73

168 Ind.App. 445

Richard L. BAKER, for himself and on behalf of all the members of the motoring public of the State of Indiana who do or may use State Highway 46 in Vigo County, Indiana, East of Riley, Indiana, Appellant (Plaintiff below), v. AMERICAN METAL CLIMAX, INC., Appellee (Defendant below).

No. 1--974A140.

Court of Appeals of Indiana, First District.

March 16, 1976.

Rehearing Denied March 16, 1976.

Hansford C. Mann, Mann, Mann Chaney, Johnson, and Hicks, Terre Haute, for appellant

Ice, Miller, Donadio & Ryan, G. Daniel Kelley, Jr., Indianapolis, for appellee, Tofaute & Spelman, Terre Haute, of counsel.

LYBROOK, Judge.

Plaintiff-appellant Richard Baker appeals from a judgment which partially modified a prior judgment in his favor against defendant-appellee American Metal Climax, Inc. (AMAX), presenting the following issues for review (2) Whether the trial court erred in concluding that the Public Service Commission (PSC) had jurisdiction to determine the merits of AMAX's petition.

(1) Whether the trial court's conclusion that AMAX had authority to construct a lateral railroad across public roads and highways was supported by sufficient special findings.

(3) Whether the trial court acting through a successor judge committed reversible error in amending the previous trial judge's special findings without hearing evidence.

The record reveals that AMAX is an international mining company which operates Chinook Coal Mine in Clay and Vigo Counties. On January 31, 1973, AMAX filed a petition with the Public Service Commission of Indiana (PSC) for permission to build a '. . . PRIVATE RAILROAD SPUR TRACK AT GRADE ACROSS INDIANA STATE HIGHWAY #46 AND FIVE COUNTY HIGHWAYS IN VIGO COUNTY, INDIANA'. On February 23, 1973, a hearing was held by PSC on the petition. On March 16, 1973, PSC issued its order directing AMAX:

'. . . to construct a private railroad spur track which will cross Indiana State Highway #46 and five county highways in Vigo County, Indiana, each at the location and in the manner set forth in the Amended Petition, subject however, to all applicable laws, rules, and regulations pertaining to the construction and maintenance of said spur track across the highways referred to in said Amended Petition.

'IT IS FURTHER ORDERED that Petitioner shall be, and it is hereby directed to construct and maintain at the crossing on Indiana State Highway $46 automatic highway crossing signals, flashinglight type, equipped with an automatic gong or bell, and to construct crossbuck warning signs at each of the county highway grade crossings. . . .'

Thereafter, in May, 1973, Baker learned for the first time of AMAX's proposed railroad and that it would cross public thoroughfares. Since the statute of limitations had expired, Baker was precluded from appealing the above order of PSC, but nevertheless, sought relief from the order in the Vigo Circuit Court. He filed a complaint for injunctive relief on June 12, 1973, seeking to enjoin the construction of the railroad. Supporting his request for relief, Baker alleged that the hearing and resultant order of PSC granting AMAX permission to establish grade crossings should be declared null and void due to defective notice. He also challenged the jurisdiction of PSC over AMAX's petition, maintaining that IC 1971, 8--4--10--1 (Burns Code Ed.) vested subject matter jurisdiction with the circuit court.

The lateral railroad which AMAX proposed was to aid in the operation of the Chinook Coal Mine. AMAX was in the process of constructing a new preparation plant and the new railroad was to provide transportation for coal from the new plant. The proposed railroad was to connect to an existing Penn Central line which in turn connects to the L & N Railroad.

Trial on Baker's complaint resulted in a judgment permanently enjoining AMAX from constructing the railroad in question. Thereafter, AMAX timely filed its motion to correct errors challenging inter alia the trial court's conclusion that PSC was without jurisdiction to entertain AMAX's petition. When the trial judge failed to rule on AMAX's motion within 30 days, the Supreme Court of Indiana, pursuant to AMAX's petition, appointed a successor judge to decide the matter. Without hearing additional evidence the new judge sustained AMAX's motion to correct errors in part and made the following entry:

'This matter having come before the Court on the defendant's motion to Correct 'The Court now states its reasons and the amended findings and conclusions of law as follows:

Errors, and the Court having held a hearing on the same and having considered the briefs of the parties, the record of this cause, including the transcript of the evidence of the prior hearings, now finds that certain of the relief as requested in the Motion to Correct Errors should be granted and that the Findings of Fact, Conclusions of Law, and Judgment previously entered in this cause should be amended. The parties having heretofore agreed that the correct name of the sole defendant is American Metal Climax, Inc.

FINDINGS OF FACT

1. Plaintiffs as a class are users of State Highway 46 and County Road in Vigo County, State of Indiana and seek to enjoin defendant from constructing grade crossings of public highways in the defendant's lateral railroad, on State Highway 46 and five (5) other county roads in Vigo County.

2. Defendant American Metal Climax, Inc., is a corporation organized under the laws of the State of New York and is admitted to do business within the State of Indiana, and it operates a strip coal mine in the State of Indiana.

3. On January 31, 1973, defendant filed an amended petition before the Public Service Commission of Indiana entitled 'AMENDED PETITION OF AMERICAN METAL CLIMAX, INC., A CORPORATION FOR PERMISSION TO CONSTRUCT A PRIVATE RAILROAD SPUR TRACK AT GRADE ACROSS INDIANA STATE HIGHWAY 46 AND FIVE COUNTY HIGHWAYS IN VIGO COUNTY, INDIANA', and a copy of the amended petition was served upon the Indiana State Highway Commission, the Board of County Commissioners of Vigo County and Penn Central Transportation Company, who were named as respondents in the amended petition.

4. A hearing before the Public Service Commission was scheduled for two o'clock P.M. on February 23, 1973 on the merits of said amended petition and the Commission notified The Indiana State Highway Commission, The Board of County Commissioners of Vigo County and Penn Central Transportation Company; and the Public Service Company of Indiana issued a notice by publication.

5. The notice which was published by the Public Service Commission on February 5, 1973, appeared in the Terre Haute Tribune, a daily newspaper published in Terre Haute, Indiana, and in the Terre Haute Star, a daily newspaper published in Terre Haute, Indiana; and in the Brazil Daily Times, a daily newspaper, published in Brazil, County of Clay, State of Indiana. Each of the aforementioned published notices contained the title of the petition as set forth above, the date of the hearing as being two o'clock P.M., EST, on February 23, 1973, and gave the place of the hearing as being before the Public Service Commission, Room 908, in 'atSte' office building, Indianapolis, Indiana, and invited public participation except that in the notice published in the Brazil Daily Times 'State' was correctly spelled. That none of said notices gave any street address of the building where the said hearings were to be conducted.

6. That none of said notices gave any description of the roads or the area where said railroad crossings were to be constructed and that there are thousands of miles of roads in Vigo County.

7. On March 16, 1973, the Public Service Commission of Indiana issued its Order approving the construction of the grade crossings of the five (5) county roads in Vigo County and of State Road 46 and on July 19, 1973, the State Highway 8. Plaintiffs as a class and as users of State Highway 46 and the County Roads over which the grade crossings are to be constructed will suffer economic loss and inconvenience as a result of having to stop or slow down for said crossings and said crossings presents (sic) a potential hazard to the persons of the plaintiffs using said highways.

Commission approved the application for permit to construct a new railroad crossing across State Road 46.

9. That the published notices of the hearing before the PSC as aforementioned were defective in that the county highways were not named, no descriptions or locations of the places of the crossings were set forth in the notices, and further the description of the State Office Building as being 'atSte' was insufficient in two of said notices.

CONCLUSIONS OF LAW

1. That Defendant American Metal Climax, Inc., a corporation, is a mining company and has authority to construct a lateral railroad 'across public highways or roads.'

2. That the Public Service Commission of the State of Indiana had jurisdiction to hear and determine the merits of the amended petition of American Metal Climax, Inc., and to approve the grade crossings as requested, subject to proper notice being given to the public which notice should have included the name or other specification of each county road, and a general description of the location on the roads of the proposed grade crossings. The order issued by the Public Service Commission pursuant to the amended petition of American Metal Climax, Inc. of March 16, 1973, was void due to the defects in the published notices.

3. That plaintiffs are entitled to the injunctive relief requested until such time as the Public Service Commission re-hears or holds a new hearing after proper notice and until such time as the Public Service Commission thereafter approves the grade crossings.

4. That the law in part is with the plaintiffs and against the defendants and plaintiffs are entitled to their costs and reasonable attorney fees in the amount of $1,000.00.

JUDGMENT

IT IS THEREFORE...