Dahl v. Northern Indiana Public Service Co.

• Citation: 239 Ind. 405,157 N.E.2d 194
• Decision Date: 24 March 1959
• Docket Number: No. 29729,29729
• Parties: Fred H. DAHL and Nona Dahl, his wife, Fred A. Dahl and Abbie Dahl, his wife, Appellants, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee.
• Court: Indiana Supreme Court

Page 194

157 N.E.2d 194

239 Ind. 405

Fred H. DAHL and Nona Dahl, his wife, Fred A. Dahl and Abbie

Dahl, his wife, Appellants, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee.

No. 29729.

Supreme Court of Indiana.

March 24, 1959.

Rehearing Denied May 8, 1959.

William J. O'Conner, Hammond, Galvin, Galvin & Leeney, Hammond, of counsel, for appellants.

Lawyer, Friedrich, Petrie & Tweedle, Hammond, George E. Hershman, Crown Point, for appellee.

BOBBITT, Judge.

Appellee brought this action to appropriate an easement over certain lands owned by appellants for a right-of-way to construct and maintain electric power lines for the distribution of electric energy to the public in general for heat, light, power, telephone and other purposes.

Appellants filed objections to appellee's complaint and thereby raised the following issues: (1) Was the easement necessary for the purpose for which it was sought? (2) Did appellee make a 'good faith' effort to purchase the easement sought?

After a trial on the issues presented by appellants' objections to the complaint, the trial court overruled the objections, and from such interlocutory order this appeal is prosecuted.

Two questions are presented by the assignment of errors:

First: Was the evidence sufficient to establish the necessity of the appropriation of appellants' land for the use for which it was sought?

Acts 1929, ch. 218, § 1, p. 800, being § 3-1713, Burns' 1946 Replacement, provides, in pertinent part, as follows:

'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, * * * 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, * * *.'

Appellants assert that under this statute appellee was required to show, by competent evidence, that the proposed taking of the easement was necessary to accomplish the use and purpose for which it is sought. See, Shedd v. Northern Indiana Public Service Co., 1934, 206 Ind. 35, 41, 188 N.E. 322, 90 A.L.R. 1020.

They rely upon Indianapolis Water Co. v. Lux, 1946, 224 Ind. 125, 64 N.E.2d 790, to support their assertion here, and cite a statement from 224 Ind. at page 134, 64 N.E.2d at page 793, as follows:

'* * * we hold that the question of necessity in this case was by statute made a judicial one.' (Our italics.)

In the Lux case appellant sought to acquire the fee simple title to all of appellees' land described in the complaint for the purpose of constructing and maintaining a reservoir. Objections were filed to plaintiff-appellant's complaint alleging that the property sought to be condemned was not necessary to the maintenance of such reservoir, nor was such property necessary for any other project which was owned and operated by the appellant. This court in arriving at the above quoted conclusion reasoned as follows: (at page 133 of 224 Ind., at page 793 of 64 N.E.2d)

'An eminent authority has said, '* * * if neither the constitution nor statute requires it, the landowner cannot resist the condemnation of his property on the ground that there is no necessity for the proposed work or improvement for which it is sought, or that it will not be of any public utility, convenience or advantage.' Lewis, Eminent Domain 3d Ed. § 597; see also Speck v. Kenoyer, 1905, 164 Ind. 431, 73 N.E. 896; Water Works Co. of Indianapolis v. Burkhart, 1872, 41 Ind. 364; Smith v. State 1935, 209 Ind. 80, 198 N.E. 69. And it has been held that 'The delegation to a state agency of the right to exercise the power of eminent domain carries with it the authority to determine the necessity for its exercise to accomplish an authorized purpose, and the question of such necessity is not for judicial determination.' Root v. State, supra [(1934), 207 Ind. 312, 192 N.E. 447, 448.]

'Again it is said 'The expediency of constructing a particular public improvement and the extent of the public necessity therefor are clearly not judicial question; but it is obvious that if property is taken in the ostensible behalf of a public improvement which it can never by any possibility serve, it is being taken for a use that is not public, and the owner's constitutional rights call for protection by the courts.' 10 R.C.L. 184. 'The power to condemn is not of course a power without limitations. It could not be invoked to condemn land out of all proportion to all necessities.' Chicago, etc., R. Co. v. Baugh, supra. [(1911), 175 Ind. 419, 94 N.E. 571.] But the statute granting the power of eminent domain may make the question of necessity a judicial one. Speck v. Kenoyer, supra.'

The allegation in the objections in that case that the property to which the fee simple title was sought was not necessary to the maintenance of the reservoir or for any other project owned or operated by the appellant raised the issue that the property sought was not for a public purpose and appellant was, therefore, attempting to act outside the scope of its authority. This then presented a question pertaining to the legality of the taking and was one which the courts could properly consider. This is clearly not the situation in the case at bar.

It is true that 'In limiting the power of appropriation to that which is necessary, it is manifest that it was the legislative purpose to prevent the abuse of the power by making appropriations for speculative, monopolistic, or other purposes, foreign to the legitimate objects contemplated by the corporation charter.' Eckart v. Fort Wayne, etc., Traction Co., 1914, 181 Ind. 352, 359, 104 N.E. 762, 764. However, none of these questions are raised by appellants' objections to the complaint herein.

The rule applicable here is succinctly stated in Guerrettaz v. Public Service Co. of Ind., 1949, 227 Ind. 556, at page 561, 87 N.E.2d 721, at page 724, as follows:

'All questions concerning the expediency of taking private property for public use are exclusively for the legislature. Unless the action of the legislature is arbitrary, and the use for which the property is taken is clearly private, the courts will not interfere.'

In Slentz et al. v. City of Fort Wayne et al., 1954, 233 Ind. 226, at page 231, 118 N.E.2d 484, at page 487, this court reaffirmed the general rule which has long been established and consistently followed in Indiana, quoting from Bragg v. Weaver 1919, 251 U.S. 57, 40 S.Ct. 62, 63, 64 L.Ed 135, as follows:

"Where the intended use is public, the necessity and expediency of the taking may be determined by such agency and in such mode as the state may designate. They are legislative questions, no matter who may be charged with their decision, and a hearing thereon is not essential to due process in the sense of the 14th Amendment. (Citing authorities.)"

And, further, at page 232 of 233 Ind., at page 488 of 118 N.E.2d:

'The necessity and expediency of taking property for public use is a legislative, and not a judicial, question.' (Citing authorities.)

The statute ¹ vests discretion in the appellee, utility, herein, to take or appropriate property for public use, and if in its judgment the property herein sought to be appropriated was necessary to distribute electric energy to the public, appellee had the right to condemn, and its judgment therein cannot be questioned or superseded by the courts except for fraud, capriciousness or illegality. Slentz, et al. v. City of Fort Wayne, et al., supra, 1954, 233 Ind. 226, 233, 118 N.E.2d 484. Rhyne, Municipal Law, Eminent Domain, § 17-6, p. 395.

There is no charge here that appellee acted outside the scope of its powers or that its actions were fraudulent, capricious or unlawful.

The complaint describes the particular strip of land over which an easement is sought and the purposes for which it is to be used.

Roth Morris, general right-of-way engineer, testified for appellee that the demand for electric service in the 'Schneider De-Motte' area has increased 'over three times in the past ten years;' that the company expects the demand to increase and that it is necessary to construct additional facilities to take care of the increased demand.

We think the allegations of the complaint ² and the evidence above summarized sufficient to establish a presumption of necessity. It could be overcome only by a showing that appellee's actions herein were fraudulent, capricious or illegal. This appellants have failed to do.

Second: Was the evidence sufficient to establish that appellee was 'unable to agree for the purchase' of the easement sought?

Acts 1935, ch. 76,...