Ellis v. Public Service Co. of Indiana, Inc.

• Decision Date: 04 March 1976
• Docket Number: No. 1--875A145,1--875A145
• Citation: 342 N.E.2d 921,168 Ind.App. 269
• Parties: Ruth ELLIS, Defendant-Appellant, v. PUBLIC SERVICE COMPANY OF INDIANA, INC., Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 921

342 N.E.2d 921

168 Ind.App. 269

Ruth ELLIS, Defendant-Appellant, v. PUBLIC SERVICE COMPANY OF INDIANA, INC., Plaintiff-Appellee.

No. 1--875A145.

Court of Appeals of Indiana, First District.

March 4, 1976.

Douglass R. Shortridge, Robert T. Wildman, Indianapolis, for defendant-appellant

John A. Kendall, Kendall, Stevenson & Lowry, Danville, Frank T. Lewis, Plainfield, for plaintiff-appellee.

ROBERTSON, Chief Judge.

Defendant-appellant Ruth Ellis appeals from the trial court's decision overruling her objections to a complaint in condemnation filed by the plaintiff-appellee Public Service Company of Indiana (PSI).

The issues raised upon appeal are whether the trial court erred in overruling the objections to the condemnation and in sustaining PSI's objections to discovery sought by Ellis.

We affirm.

The record reveals that PSI initiated this cause on September 11, 1974, by the The hearing upon the objections was held before the trial court on July 10, 1975. After hearing evidence and the arguments of counsel, the court entered its interlocutory order overruling the objections and appointing appraisers from which Ellis brings this appeal under IC 1971, 32--11--1--5 (Burns Code Ed.).

filing of its complaint seeking to take by eminent domain a strip of land diagonally across the farm owned by Ellis to be used as a utility corridor for the erection, installation and maintenance of a high voltage line from southern Indiana to the northern Indianapolis metropolitan area. Ellis filed written objection to the taking, stating that the land sought to be appropriated was not necessary and that the route was selected by PSI in an arbitrary and capricious manner. Ellis further contended that the appropriation constituted a taking of property without due process of law.

PSI is given the power of eminent domain by IC 1971, 32--11--3--1 (Burns Code Ed.) which provides:

'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 added.)

Moreover, IC 1971, 32--11--3--2 (Burns Code Ed.) provides:

'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 added.)

Since these specific statutes authorize a public utility to condemn land in such quantity and amount as it deems necessary, the necessity of the take is an appropriate objection by a condemnee to a condemnation complaint. However, the question of necessity is, for the most part, to be determined by the condemning utility itself. Chambers v. Public Service Company of Indiana, Inc. (1975), Ind.App., 328 N.E.2d 478; Indianapolis Water Company v. Lux (1946), 224 Ind. 125, 64 N.E.2d 790; Alabach v. Northern Indiana Public Service Company (1975), Ind.App., 329 N.E.2d 645.

Moreover, it is well established that necessity under the statute is not limited to absolute or indispensable needs of the utility, but means that which is reasonably proper and useful for the purpose sought. Jensen v. Indiana & Michigan Electric Company (1972), 257 Ind. 599, 277 N.E.2d 589; Eckart et al. v. Ft. Wayne & N.I. Traction Co. (1914), 181 Ind. 352, 104 N.E. 762.

A utility's determination of necessity must be based upon either a present immediate need or a fair and reasonable future need for the real estate it seeks to acquire. Indiana & Michigan Electric Company v. Schnuck (1973), 260 Ind. 632, 298 N.E.2d 436. The Supreme Court has denied condemnation when the alleged need is speculative or remote in that there are no immediate plans for the use of the land or only a general intention to use the land at some indefinite point in the future. Meyer v. Northern Indiana Public Service Co., Inc. (1970), 254 Ind. 112, 258 N.E.2d 57; County Estates, Inc. v. Northern Indiana Public Service Co., Inc. (1970), 254 Ind. 108, 258 N.E.2d 54.

The condemning authority's exercise of its power may not be prevented unless a clear abuse of discretion is shown. 'The statute 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 superceded by the courts except for fraud, capriciousness or illegality.' Dahl v. Northern Ind. Public Service Co. (1959), 239 Ind. 405, 157 N.E.2d 194; See also: State ex rel. Indiana Dept. of Conservation v. Barber (1964), 246 Ind. 30, 200 N.E.2d 638.

Guerrettaz v. Public Service Company of Indiana (1949), 227 Ind. 556, 87 N.E.2d 721. As clearly set forth by our Supreme Court:

Thus, the persons objecting to the condemnation must establish fraud, capriciousness, or illegality in the utility's determination of necessity.

The proposed taking may be challenged as arbitrary, capricious, and fraudulent, both as to the need for the land, Dahl v. Northern Ind. Public Service Co., supra; Meyer v. Northern Indiana Public Service Co., Inc. supra, and the selection of the route, Guerrettaz v. Public Service Co. of Indiana, supra.

Ellis raises both objections below and raises them again for purposes of this appeal.

The record in the present case reveals the following facts.

NEED FOR THE ROUTE

PSI was constructing a new generating plant in Gibson County scheduled to be in operation by April 1, 1976. The plant was designed to serve the electric needs of 800,000 people in the Indianapolis area. The need for the additional generator was determined from studies which projected an 8% to 10% annual increase in the demand for electricity in the area to be served. The testimony showed that the present plant and equipment was adequate to satisfy the present demand for electricity, but additional generating capacity was needed to assure an adequate reserve capacity and to supply future increased needs. To transport the electricity, the utility needed the 345,000 volt transmission line for which condemnation was sought in the present case. Moreover, if the transmission line was not ready at the time the construction of the generator was completed, the generator could not function.

SELECTION OF THE ROUTE

Mr. Zimmerman, who was involved in selecting the actual route, testified that the selection process was basically a straight line approach. He stated that the routes chosen were never on exact straight line from one point to another, but that they were as close as reasonably possible to a straight line or direct route. Mr. Zimmerman related in detail the selection process. He stated that the process began by establishing where the transmission line was to begin and where it would end. A straight line route was then marked on a standard Indiana road map. The route was then worked out by the means of United States geological maps and surveys and by actual inspection of the proposed route by automobile to check the accuracy of the maps. Changes were made in the proposed route to avoid buildings, roads or other construction subsequent to the making of the maps. Aerial photographs were then made of the entire route to get a final idea of the right of way needed for the transmission line.

Zimmerman further testified that the route selected was reasonable and proper from the standpoint of sound and prudent electrical engineering and that the route was the most practical and reasonable under the circumstances.

From the evidence presented it does not appear that the action of PSI was arbitrary or capricious either as to the need for the right of way or the selection of the route. Nor does it appear that the need for the right of way was remote or speculative. The trial court was correct in overruling Ellis' objections to PSI's condemnation complaint.

Counsel for Ellis urges this Court to use this case as a vehicle to change the standards by which an electric utility makes it's choice of power line right-of-way. It is obvious by our foregoing discussion that we choose not to make such a change in the law, assuming it is...