Decatur County Rural Elec. Membership Corp. v. Public Service Co., No. 369A47

Docket NºNo. 369A47
Citation28 Ind.Dec. 128, 150 Ind.App. 193, 275 N.E.2d 857
Case DateDecember 06, 1971
CourtCourt of Appeals of Indiana

Page 857

275 N.E.2d 857
150 Ind.App. 193
DECATUR COUNTY RURAL ELECTRIC MEMBERSHIP CORPORATION, Appellant,
v.
PUBLIC SERVICE COMPANY of Indiana, a Corporation, Greensburg
Colonial Manor Apartments, Inc., Appellees.
No. 369A47.
Appellate Court of Indiana, Division No. 1.
Dec. 6, 1971.

[150 Ind.App. 194]

Page 858

Hubert E. Wickens, Don Hubert Wickens, Greensburg, for appellant; Willett H. Parr, Jr., Lebanon, of counsel.

Greg K. Kimberlin, Duejean C. Garrett, Plainfield, for appellees; Sharpnack, Bigley & Jurgemeyer, Columbus, of counsel.

BUCHANAN, Judge.

STATEMENT OF THE CASE AND FACTS--This is an appeal from a Permanent Injunction prohibiting Appellant, Decatur County Rural Electric Membership Corporation (Decatur) from rendering electric service to a 4.5 acre tract (Property) recently annexed to the City of Greensburg, Indiana, which had previously been served by Appellee, Public Service Company of Indiana (Company).

On July 21, 1967 Decatur filed in the Decatur Circuit Court a Complaint requesting a restraining order, temporary injunction, and permanent injunction, which sought to prevent the Company from constructing electrical facilities or rendering electric service to the Property. The Company then filed a similar Complaint and the two causes were consolidated. After an evidentiary hearing, the trial court denied Decatur's prayer for temporary injunction and granted the request of the Company for temporary relief.

Several months later, the trial court entered its Special Findings of Fact and Conclusions of Law and a judgment thereon permanently restraining and enjoining

Page 859

Decatur from constructing a system for furnishing electric service to the Property.

Subsequently, Decatur filed a Motion for New Trial, which Motion was overruled by the court on December 16, 1968. Decatur appeals from this ruling.

The Special Findings of Fact of the trial court may be summarized in pertinent parts as follows:

[150 Ind.App. 195] Prior to annexation of the Property, it was a part of a larger tract known as the Peters Farm, and was adjacent to the City of Greensburg. The Company has, since before the incorporation of Decatur, served the Peters Farm with electric energy and does so now. Decatur has never provided electric energy and has no facilities used and useful for the rendering of electric service in the Property. The Company serves electric energy to all customers immediately west of the Property from a primary distribution line constructed in 1950, the terminus of which is approximately 300 feet from the Property. The Company could have served the Property from the primary distribution line constructed in 1950.

Both Decatur and the Company serve electric energy to customers east of the Property from primary distribution lines constructed by the Company in 1966 and by Decatur in 1953.

The primary distribution lines of the Company were constructed without the consent of Decatur but it made no protest concerning such construction.

On or about July 12, 1967, at the request of the owners of the Property, the Company extended its facilities located in the Lee Addition immediately south of the Property in order to render electric service to the Property.

Decatur threatened to and would have, unless restrained by the court, entered onto the Property for the purpose of rendering electric service.

The court further found that the Company did not have an adequate remedy at law under the facts stated in its Complaint, and that Decatur did have an adequate remedy at law for any damages it might incur under the facts alleged.

ISSUES--Various issues are raised by the parties, but the essential issue is which party had the right to serve the Property.

The Company asserts that:

(1) the right to serve the Property was excluded from Decatur's original territory;

(2) the Company has always served the Peters Farm of which the Property was a part.

[150 Ind.App. 196] Decatur's argument is that:

(1) the Property was not excluded from Decatur's service territory;

(2) the only part of the Peters Farm served by the Company was the farmhouse;

(3) there is no evidence that the Company could have served the Property from the Company's line to the Peters farmhouse.

It is apparent from the record in this case that the parties to this dispute as to which of them has the right to provide electric service to the Property have not sought relief before the Public Service Commission of Indiana (Commission) before invoking equity jurisdiction.

If a question of failure to pursue statutory remedies is posed, such 'a failure to so comply with the procedure set forth in the statute is jurisdictional, * * *.' Monon R. Co. v. Citizens of Sherwood Forest Addition, Marion County, (1970) Ind.App., 257 N.E.2d 846, 850. To the same effect is City of Fort Wayne v. Bishop, (1950) 228 Ind. 304, 92 N.E.2d 544:

'Where the legislature creates a right and prescribes the method whereby the

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right may be enforced the statutory remedy so provided is exclusive. Lang v. Scott (1825), 1 Blckf. 405, 435, 12 Am.Dec. 257; Ryan et al. v. Ray et al. (1886), 105 Ind. 101, 106, 4 N.E. 214; Wilmont v. City of South Bend (1943), 221 Ind. 538, 543, 48 N.E.2d 649; Ettinger v. Robbins (1945), 223 Ind. 168, 59 N.E.2d 118; Hinkle v. Howard (1947), 225 Ind. 176, 178, 73 N.E.2d 674, 675; New York, Chicago and St. Louis Railroad Company v. Zumbaugh (1895), 12 Ind.App. 272, 279, 39 N.E. 1058; Board of Comrs. v. Adler et al. (1922), 77 Ind.App. 296, 300, 301, 133 N.E. 602; * * *.'

If the legislature has provided a remedy, courts have no jurisdiction over the subject matter until such time as those [150 Ind.App. 197] remedies are exhausted or denied. Any such decision is immediately reviewable under the provisions of I.C. 1971 8--1--3--1, Ind.Ann.Stat. § 54--443 (Burns 1971), which reads in part:

'Any person, firm, association, corporation, city, town or public utility adversely affected by any final decision, ruling, or order of the public service commission of Indiana, may, within thirty (30) days from the date of entry of such decision, ruling, or order, appeal to the Appellate Court of Indiana for errors of law under the same terms and conditions as govern appeals in ordinary civil actions, * * *.'

See also Citizens Gas & Coke Utility v. Sloan, (1964) 136 Ind.App. 297, 196 N.E.2d 290; Warren v. Indiana Telephone Co., (1940) 217 Ind. 93, 26 N.E.2d 399.

Under the new Rules of Civil Procedure adopted January 1, 1970, the question of...

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41 practice notes
  • Harp v. Indiana Dept. of Highways, No. 41A04-9012-CV-570
    • United States
    • Indiana Court of Appeals of Indiana
    • 23 Enero 1992
    ...ex rel. Dean v. Tipton Circuit Court (1962), 242 Ind. 642, 181 N.E.2d 230; Decatur County R.E.M.C. v. Pub. Serv. Co. of Indiana (1971), 150 Ind.App. 193, 275 N.E.2d 857; Newton v. Bd. of Trustees Vincennes University (1968), 142 Ind.App. 391, 235 N.E.2d 84). A motion under T.R. 12(B)(1) may......
  • Associates Inv. Co. v. Claeys, No. 71A04-8804-CV-131
    • United States
    • Indiana Court of Appeals of Indiana
    • 8 Febrero 1989
    ...Public Service Commission of City of Indianapolis (1956), 235 Ind. 70, 131 N.E.2d 308; Decatur County REMC v. Public Service Co. (1971), 150 Ind.App. 193, 275 N.E.2d 857. Though one who seeks the benefit of a statutory proceeding must comply with all procedural terms of the statute, failure......
  • Clark v. Clark, No. 1-679A159
    • United States
    • Indiana Court of Appeals of Indiana
    • 13 Mayo 1980
    ...the parties, or sua sponte by a court of review. Decatur County Rural Electric Membership Corporation v. Public Service Company, (1971) 150 Ind.App. 193, 275 N.E.2d 857. Subject matter jurisdiction cannot be imposed by the consent of the parties (Decatur County, supra ), and must be derived......
  • Indiana Waste Systems, Inc. v. Board of Com'rs of Howard County, No. 2-277A58
    • United States
    • Indiana Court of Appeals of Indiana
    • 26 Abril 1979
    ...of State Revenue (1973), 157 Ind.App. 505, 301 N.E.2d 209; Decatur County Rural Elec. Membership Corp. v. Public Service Co. (1971), 150 Ind.App. 193, 275 N.E.2d 857; Cooper v. County Bd. of Page 55 Review of Grant County (1971), 150 Ind.App. 232, 276 N.E.2d 533. See Paynter v. Marion Count......
  • Request a trial to view additional results
41 cases
  • Harp v. Indiana Dept. of Highways, No. 41A04-9012-CV-570
    • United States
    • Indiana Court of Appeals of Indiana
    • 23 Enero 1992
    ...ex rel. Dean v. Tipton Circuit Court (1962), 242 Ind. 642, 181 N.E.2d 230; Decatur County R.E.M.C. v. Pub. Serv. Co. of Indiana (1971), 150 Ind.App. 193, 275 N.E.2d 857; Newton v. Bd. of Trustees Vincennes University (1968), 142 Ind.App. 391, 235 N.E.2d 84). A motion under T.R. 12(B)(1) may......
  • Associates Inv. Co. v. Claeys, No. 71A04-8804-CV-131
    • United States
    • Indiana Court of Appeals of Indiana
    • 8 Febrero 1989
    ...Public Service Commission of City of Indianapolis (1956), 235 Ind. 70, 131 N.E.2d 308; Decatur County REMC v. Public Service Co. (1971), 150 Ind.App. 193, 275 N.E.2d 857. Though one who seeks the benefit of a statutory proceeding must comply with all procedural terms of the statute, failure......
  • Clark v. Clark, No. 1-679A159
    • United States
    • Indiana Court of Appeals of Indiana
    • 13 Mayo 1980
    ...the parties, or sua sponte by a court of review. Decatur County Rural Electric Membership Corporation v. Public Service Company, (1971) 150 Ind.App. 193, 275 N.E.2d 857. Subject matter jurisdiction cannot be imposed by the consent of the parties (Decatur County, supra ), and must be derived......
  • Indiana Waste Systems, Inc. v. Board of Com'rs of Howard County, No. 2-277A58
    • United States
    • Indiana Court of Appeals of Indiana
    • 26 Abril 1979
    ...of State Revenue (1973), 157 Ind.App. 505, 301 N.E.2d 209; Decatur County Rural Elec. Membership Corp. v. Public Service Co. (1971), 150 Ind.App. 193, 275 N.E.2d 857; Cooper v. County Bd. of Page 55 Review of Grant County (1971), 150 Ind.App. 232, 276 N.E.2d 533. See Paynter v. Marion Count......
  • Request a trial to view additional results

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