Indiana State Highway Commission v. Ziliak
| Decision Date | 30 November 1981 |
| Docket Number | No. 1-880A203,1-880A203 |
| Parties | INDIANA STATE HIGHWAY COMMISSION, Appellant-Plaintiff, v. Cletus ZILIAK and Ernestine Ziliak, Appellees-Defendants. |
| Court | Indiana Appellate Court |
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Asst. Atty. Gen., Indianapolis, for appellant-plaintiff.
Ronald Warrum, Evansville, for appellees-defendants.
The Indiana State Highway Commission appeals from a negative judgment upon its complaint for injunctive relief. We affirm.
Beginning in 1972 the Indiana State Highway Commission, pursuant to statutory authority, proposed to construct Interstate Highway I-164 in Vanderburgh County, Indiana, from Interstate 64 south to State Road 62 on the eastern edge of the county. Cletus and Ernestine Ziliak are the owners of real property located in the direct line of the proposed right-of-way of I-164. With permission of the Ziliaks' son in June 1977 and of Cletus Ziliak in April 1979 the Commission made two preliminary archaeological walking tours of the Ziliaks' property, the results of which led to the discovery of Indian artifacts and indicated to the Commission a need for further archaeological investigation. However, when the Commission later requested permission from the Ziliaks to conduct an intensive archaeological survey upon their property prior to the initiation of eminent domain proceedings, the Ziliaks refused. The Commission sought a preliminary and permanent injunction. On March 10, 1980, the trial court denied injunctive relief to the Commission in the following Findings of Fact, Conclusions of Law, and Judgment:
"Comes now the Court and upon evidence heard on the Plaintiff's Complaint for Preliminary Injunction, makes the following findings of fact, conclusions of law, and judgment:
FINDINGS OF FACT
(1) The Indiana State Highway Commission is a commission of the State of Indiana, organized, establised (sic) and existing pursuant to the laws of the State of Indiana, hereinafter referred to as State.
(2) The State has the right to exercise the power of eminent domain.
(3) The State proposes to construct Interstate Highway #I-164 in Vanderburgh County, Indiana, from Interstate #64 south to State Road #62 on the eastern edge of Vanderburgh County.
(4) Defendants are the owners of property located in the center of the Northwest quarter of the Northeast quarter of the Southeast quarter of Section 13, Township 5 South, Range 10 West, which property is in the direct line of the proposed corridor of the above-mentioned Interstate #I-164.
(5) The State proposes to go on the Ziliaks' farm to dig for artifacts. To do the digging, the State proposes that the entire plow zone must first be removed, and the sub-soil dug into. The work is done either with a back hoe or with hand shovels, sometimes with both. The State may dig trenches six feet wide and 50 feet long, or 50 foot square holes, or many five foot square holes. No one knows how many trenches or holes will be dug under the State's proposal. This work will take from a few days to two months.
(6) The State proposes to do all this digging on the Ziliak farm without first exercising its power of condemnation or eminent domain.
(7) The digging proposed by the State is not a survey, within the ordinary and standard meaning of that word.
(8) There is no evidence that it is necessary for the State to dig for Indian artifacts on the Ziliak farm, as proposed, in order to construct a highway.
(9) There is no evidence that it is necessary to dig up the Ziliak farm, as proposed, before the State exercises its right of condemnation or eminent domain.
(10) There is no evidence at all concerning United States Public law 93-291, 93 Congress S. 154, 88 Stat. 174, although both the Court and counsel for the Ziliaks suggested that any such evidence be introduced at the trial.
(11) There is no evidence that it is necessary for the State to conduct any intensive archaelogical (sic) survey on the Ziliak farm in order to construct a highway.
(12) There is no evidence that it is necessary to conduct any intensive archaelogical (sic) survey on the Ziliak farm before exercising its right of condemnation or eminent domain.
(13) The State has already conducted three archaelogical (sic) expeditions upon the Ziliak farm, without permission and without complying with the applicable laws.
(14) During those three archaelogical (sic) expeditions upon the Ziliak farm, employees and agents of the State removed artifacts without the Ziliaks' permission and without any legal right.
(15) The State does not have the right or power to come on the Ziliak farm to do the proposed digging, without first exercising its power of condemnation or eminent domain.
(16) The Ziliaks have acted within their legal rights in their refusal to allow the State to dig upon their property.
(17) The Ziliaks' actions do not result in any irreparaable (sic) injury to the State. The State does have an adequate remedy at law.
(1) The Court has jurisdiction of the parties and the subject matter, and the power to grant the requested relief, an injunction.
(2) The law is with the defendants, and against the plaintiff.
(3) The plaintiff does not have the right or the power to come on the Ziliak farm to do the proposed digging, without first exercising its power of eminent domain.
(4) The Ziliaks have acted within their legal rights in refusing to allow the State to dig upon their property.
(5) There has been no irreparable injury to the State.
(6) The State has an adequate remedy at law.
JUDGMENTThe Court accordingly enters judgment for the defendants and against the plaintiff herein.
The only issue presented by the Commission is whether or not the trial court's judgment in this cause is contrary to law.
At the outset we reiterate our standard of review in a case such as this. Where a party is appealing from a negative judgment, this court cannot consider an argument that the judgment is unsupported by the evidence. Captain & Co. v. Towne, (1980) Ind.App., 404 N.E.2d 1159. An appeal from a negative judgment will be successful only where the judgment is contrary to law. Reynolds v. Meehan, (1978) Ind.App., 375 N.E.2d 1119.
The Commission argues that the judgment of the trial court is contrary to law because "Indiana law, in conjunction with federal law, authorizes surveys of land for archaeological purposes prior to the exercise of the government's right of eminent domain." Appellant's brief at 9. In support of its position that it has authority to enter the Ziliaks' property for purposes of conducting an intense archaeological survey such as it proposes here, the Commission cites us to Ind.Code 8-13-5-12 1 and Ind.Code 32-11-1-1. 2
Indiana Code 8-13-5-12 endows the Commission with the power of eminent domain and provides that the Commission may make investigations in order to carry out the purposes of the act. In addition, it sets forth a procedure to be utilized prior to the entry upon real estate and for the payment of damages in the case of injury resulting from such investigation. We note, however that Acts 1980, P.L. 74 § 436(b), p. 1077 provides that the repeal of this section is effective July 1, 1981. Because "the repeal of a statute without a saving clause, where no vested right is impaired, completely obliterates it and renders it as ineffective as if it never existed," 26 I.L.E. Statutes § 195 at 380 (1960), and because "a political subdivision of the State ... could not in and of itself acquire vested rights by virtue of legislative enactment," State ex rel. Mass Transportation Authority of Greater Indianapolis v. Indiana Revenue Board, (1969) 144 Ind.App. 63, 253 N.E.2d 725, 730, 255 N.E.2d 833, cert. denied 400 U.S. 877, 91 S.Ct. 117, 121, 27 L.Ed.2d 114, we must now ignore the authority of IC 8-13-5-12.
Indiana Code 32-11-1-1 which is currently effective provides that the Commission may examine or survey property before they initiate proceedings to condemn it. The question becomes, then, whether the word "survey" as used in the statute contemplates the intensive type of archaeological survey which the Commission proposes. We concur with the Ziliaks and the trial court that it does not. In the absence of legislative expression that words in a statute are to be given technical meanings, we shall give those words their plain, ordinary, and usual meanings. Indiana Dept. of State Revenue v. Food Marketing Corp., (1980) Ind.App., 403 N.E.2d 1093, trans. denied. Our interpretation of the ordinary connotation of the word "survey" relates to an act of viewing and measuring surface areas. Here the Commission seeks to deny the Ziliaks the use of their property for up to two months and to damage it by removing the topsoil and either digging holes of an unspecified depth that are five feet square or trenching five feet wide and sixty feet long. Clearly, this type of activity is not encompassed in the ordinary meaning of the term "survey." In fact, less destructive activity by a power company's surveyors was held by this court to constitute a "taking" of property. See Indiana & Michigan Electric Co. v. Stevenson, (1977) 173 Ind.App. 329, 363 N.E.2d 1254, trans. denied. In Indiana & Michigan Electric Co. we wrote in interpretation of IC 32-11-1-1 that "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." 363 N.E.2d at 1259. We conclude now likewise that the Commission's right to enter private property for the purpose of examination and survey confers no license to engage in the process of conducting archaeological digs.
We reach this conclusion in full awareness of the National Environmental Policy Act of 1969 (...
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