Indiana & Michigan Elec. Co. v. Stevenson

• Decision Date: 15 June 1977
• Docket Number: No. 1--776A121,1--776A121
• Citation: 173 Ind.App. 329,363 N.E.2d 1254
• Parties: INDIANA & MICHIGAN ELECTRIC COMPANY, Appellant (Defendant below), v. Jack STEVENSON, Joe Collins, and Lloyd Collins, Appellees (Plaintiffs below).
• Court: Indiana Appellate Court

Page 1254

363 N.E.2d 1254

173 Ind.App. 329

INDIANA & MICHIGAN ELECTRIC COMPANY, Appellant (Defendant below), v. Jack STEVENSON, Joe Collins, and Lloyd Collins, Appellees (Plaintiffs below).

No. 1--776A121.

Court of Appeals of Indiana, First District.

June 15, 1977.

Rehearing Denied July 25, 1977.

Thomas W. Yoder and Lawrence A. Levy, of Livingston, Dildine, Haynie & Yoder, Fort Wayne, John M. Baumunk, Brazil, for appellant

Hansford C. Mann, of Mann, Mann, Chaney, Johnson & Hicks, Terre Haute, George N. Craig, Craig & Craig, Brazil, for appellees.

LOWDERMILK, Judge.

NATURE OF THE CASE

Defendant-appellant, Indiana & Michigan Electric Company (IMEC), appeals from the adverse judgments of the trial court entered upon jury verdicts which awarded plaintiffs-appelllees, Joe and Lloyd Collins (Collins), compensatory damages of $120 and punitive damages of $60,000, and which awarded plaintiff-appellee, Jack Stevenson (Stevenson), compensatory damages of $300 and punitive damages of $50,000. These two cases were consolidated for purposes of this appeal.

FACTS

The facts necessary for our disposition of this appeal are as follows: IMEC is a public utility engaged in the generation and transmission of electric energy. IMEC has the power of eminent domain. ¹

In October, 1974, IMEC was examining and surveying land in Clay County, Indiana, in preparation for the construction of its proposed Breed-Tipton-Pipe-Creek 765,000 volt electrical transmission facility.

The Collins and Stevenson were residents and landowners in Clay County whose property IMEC wished to survey.

When IMEC's survey crew reached the Collins' land they found corn 10 to 12 feet high in the line of sight of their survey routes. IMEC ran what are known as centerlines from a tripod when conducting its surveys. Inasmuch as the Collins' corn was in its line of sight for approximately 1800 feet of the survey route, IMEC cut the corn without first obtaining the Collins' permission.

On Stevenson's land there was a woods consisting of brush, saplings, trees and dense foliage along approximately 1100 feet of IMEC's survey route. In order to obtain what it believed to be an accurate line of sight and tower elevations IMEC cut approximately 23 saplings and trees without Stevenson's permission.

CENTRAL ISSUES

1. Whether a public utility when examining and surveying property preparatory to condemning the property has the right to cut the corn or trees of a landowner, without his permission, when thought necessary to conduct an accurate survey.

2. Whether there was sufficient evidence to merit an award of punitive damages, and whether the trial court erred in overruling IMEC's motions for judgments on the evidence at the close of the Collins and Stevenson cases.

3. Whether the trial court erred in permitting certain irrelevant evidence to be introduced over IMEC's objection in both cases.

4. Whether the trial court erred in denying IMEC's motion for a change of venue in the Stevenson case.

5. Whether the trial court erred in giving, and in refusing to give, certain instructions to the jury.

6. Whether the verdicts awarding punitive damages in both cases are arbitrary and capricious.

DISCUSSION AND DECISION

ISSUE ONE

Before reaching the merits of this appeal we first will address the appellees' argument that IMEC has waived all specifications of error by not setting out each assignment of error individually in the argument section of its brief.

IMEC elected to group its numerous specific assignments of error under several general headings, supported by a single argument, as permitted by Ind.Rules of Procedure, Appellate Rule 8.3(A)(7). Under each general assignment of error IMEC numerically directed this court to where in its motion to correct errors the specific error could be located, and by the use of footnotes, where in the record the alleged error was committed and preserved for appellate review.

It is the opinion of this court that AP 8.3(A)(7) has been substantially complied with. As stated in the recent case of Indiana State Board of Tax Commissioners v. Lyon and Greenleaf Co., Inc. (1977), Ind.App., 359 N.E.2d 931, at p. 933:

'Before turning to a discussion of the merits, it is necessary to dispose of a contention by appellee that the issues to be discussed have been waived by the Board. Appellee contends that appellant has waived all asserted errors by failing to specifically set forth in its brief with the respective arguments the applicable errors assigned in its motion to correct errors. However, several specifications of error are grouped and the issues raised by such errors are sufficiently articulated. Moreover, each section of appellant's argument is prefaced with a statement making numerical reference to which specifications of error from the motion to correct errors relate to each section of argument. Where there has been substantial compliance with the rules, a failure to include all that is technically required will not result in a waiver. Yerkes v. Washington Manufacturing Co., Inc. (1975), Ind.App., 326 N.E.2d 629.'

IC 1971, 32--11--1--1 (Burns 1976 Supp.) provides in pertinent part as follows:

'Entry, survey, effort to purchase, title.--Any person, corporation or other body having the right to exercise the power of eminent domain for any public use, under any statute, existing or hereafter passed, and desiring to exercise such power, shall do so only in the manner provided in this chapter (32--11--1--1--32--11--1--13) except as otherwise provided herein. Before proceeding to condemn, such person, corporation or other body may enter upon any land for the purpose of examining and surveying the property sought to be appropriated or right sought to be acquired; and shall make an effort to purchase for the use intended such lands, right-of-way, easement or other interest therein or other property or right. . . .' (Our emphasis)

IMEC contends that as an incident to its right to enter and survey property prior to it being condemned it has the right to cut minimal quantities of crops or timber in order to produce an accurate survey. The Collins and Stevenson contend that such conduct on the part of IMEC would allow an unconstitutional 'taking' of their property in violation of Art. I, § 21 of the Indiana Constitution, impliedly revoking IMEC's statutory license to enter private property, and thereby making it a trespasser.

Art. I, § 21 of the Indiana Constitution provides:

'Compensation for services or property.--No man's particular services shall be demanded, without just compensation. No man's property shall be taken by law, without just compensation; nor, except We are thus faced with the unenviable task of reconciling two important and oftentimes competing interests. On the one hand we have the interest of the landowner to be secure in the ownership and possession of his property; on the other hand, we have the interest of society as a whole who in our technologically advanced civilization have become accustomed at the mere flick of a switch to be provided with a valuable source of energy--electricity.

in case of the State, without such compensation first assessed and tendered.'

We must now proceed with the difficult task of balancing these two important interests.

In the first instance our legislature by vesting the right of eminent domain in specific entities has recognized that the desires of the individual landowner(s) to the undisturbed enjoyment of his property must succumb to the practical needs of society as a whole. State v. Flamme (1940), 217 Ind. 149, 26 N.E.2d 917. Further, our legislature has provided that any entity preparing to exercise its statutory right of eminent domain has the further right to enter, examine and survey the property about to be condemned. IC 32--11--1--1, supra. It is the generally accepted rule that a public utility's mere entry upon land for the purposes of examination and survey pursuant to a statutory grant of authority does not ipso facto amount to a taking of property in the constitutional sense for which compensation must be assessed and tendered before the entry and survey are made. 29 A.L.R.3d 1104 (1970). We fully adhere to this rule. Properly exercised the pre-condemnation survey can serve the interests of both landowner and public utility. The landowner will have only so much of his land condemned as is needed for the particular utility purpose involved; and, the utility will not be forced to engage in the wasteful expenditure of the ratepayer's money by blindly purchasing a 'pig in a poke.'

However, a public utility's right to enter private property for the purpose of examination and survey confers no license to engage in a course of destruction of crops, timber, etc.

Having recognized the competing interests involved and the two extremes of the spectrum our focal point becomes narrowed to this question, 'When do acts by a public utility when conducting an examination and survey of property prior to condemning that property amount to a taking of private property in violation of Art. I, § 21 of the Indiana Constitution, thereby revoking a public utility's statutory license to enter private property?

Our Supreme Court has not had occasion to address this specific question. However, in the case of School Town of Andrews v. Heiney (1912), 178 Ind. 1, 7, 98 N.E. 628 at p. 630, a 'taking' of property was defined as follows:

'What is a 'taking' of property within the constitutional provision is not always clear; but, so far as general rules are permissible of declaration on the subject, it may be said that there is a taking where the act involves an actual interference with, or disturbance of, property rights, which are not merely consequential, or incidental injuries to property, or property rights, as distinguished from prohibition of use, or enjoyment, or destruction of interests in property . . .' (Our emphasis)

See also, Schuh v. State (1968), 251 Ind. 403, 241 N.E.2d 362...