Country Estates, Inc. v. Northern Indiana Public Service Co., s. 569S95-569S96
| Decision Date | 08 May 1970 |
| Docket Number | Nos. 569S95-569S96,s. 569S95-569S96 |
| Citation | 254 Ind. 108,21 Ind.Dec. 275,258 N.E.2d 54 |
| Parties | COUNTRY ESTATES, INC. and First Federal Savings and Loan Association of Valparaiso, Appellants, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee. Alexander CORAZZO and Gretchen Corazzo, Appellants, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee. |
| Court | Indiana Supreme Court |
Glenn J. Tabor, Duane W. Hartman, Blachly & Tabor, Valparaiso, for appellants.
William H. Eichhorn, James L. Kennedy, Schroer, Eichhorn & Morrow, Hammond, for appellee.
This case was commenced as two separate condemnation actions brought by plaintiff-appellee against each appellant to appropriate an easement of right-of-way across appellants' property in order that appellee can construct and maintain electrical transmission lines thereon. These actions were consolidated in May of 1969 in this Court on motion of the appellants pursuant to then existing Rule 2--7. 1
The appellee sought to appropriate an easement 200 feet in width and 1,318 feet in length across Defendant Corazzo's property. It also sought to appropriate an easement on Appellant Country Estate's property which was 200 feet in width and 1,313 feet in length.
In each case the defendants filed objections which, after hearing, were overruled. The trial court entered orders of appropriation and appointed appraisers to assess the damages.
In each case the appellants have set out several assignments of error; however, in view of the decision reached in this case we will consider only Appellant Corazzo's assignment number 4 and Country Estates' assignment number 4, each of which assigned as error the overruling of their objections numbered 7, 8 and 9 wherein each claimed the appellee was seeking to appropriate property for future use.
In each of these cases the appellee has filed a motion to affirm or to dismiss wherein they set out that the transcript does not contain marginal notes on each page as required by the then Rule 2--5, and also that appellants' brief is defective in that it does not comply with Rule 2--17 and that the recitation of the evidence is not sufficient. However, subsequent to the filing of this motion by the appellee, the appellants filed a petition in this Court for leave to amend their brief and to make additional marginal notations in the transcript, which petition was granted to each appellant. The appellants pursuant to their petitions made the necessary marginal notes in their transcript and filed an amended brief in the consolidated cases. The motion to affirm or dismiss, therefore, becomes moot.
The record in each of these cases is much the same in the companion cases set out in the above footnote. In each case the right-of-way engineer for the appellee testified that their present plans and immediate future need called for a 345 KV transmission line and that the appellee would need 150 feet of right-of-way width for the construction and maintenance of such a line; that the 200 foot right-of-way was condemned because the appellee had future plans for the construction of a 138 KV line to be placed on the same right-of-way. However, he stated that there were no plans drawn for the 138 KV line nor had there been any appropriation of money for the line. The engineer further testified that he had no personal knowledge when the line would be constructed, and he at one point referred to the 138 KV line as a line which the appellee 'might wish to place on this right-of-way.' It is thus clear from the evidence that the necessity for the appellee's taking of the easement is confined to a 150 foot right-of-way for the construction and maintenance of a 345 KV line. To the extent that they are seeking also to take an additional 50 feet for the contingent possibility of having to at some future time construct an additional 138 KV line, they are exceeding...
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