Indianapolis Power & Light Co. v. Barnard

• Decision Date: 19 January 1978
• Docket Number: No. 1-1276A241,1-1276A241
• Citation: 371 N.E.2d 408,175 Ind.App. 308
• Parties: INDIANAPOLIS POWER & LIGHT COMPANY, Plaintiff-Appellant, v. Frederick Eugene BARNARD, a/k/a Fredrick Eugene Barnard and Eugene Barnard and Lora Jane Barnard, a/k/a Lora J. Barnard, husband and wife, Marshall Milhon and Janet Milhon, husband and wife, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 408

371 N.E.2d 408

175 Ind.App. 308

INDIANAPOLIS POWER & LIGHT COMPANY, Plaintiff-Appellant, v. Frederick Eugene BARNARD, a/k/a Fredrick Eugene Barnard and Eugene Barnard and Lora Jane Barnard, a/k/a Lora J. Barnard husband and wife, Marshall Milhon and Janet Milhon, husband and wife, Defendants-Appellees.

No. 1-1276A241.

Court of Appeals of Indiana, Third District.

Jan. 19, 1978.

Marcus E. Woods, Clark L. Snyder, Jon D. Noland, Indianapolis, for plaintiff-appellant; Barnes, Hickam, Pantzer & Boyd, Indianapolis, of counsel.

William G. Bray, Martinsville, Frank E. Spencer, Indianapolis, Robert D. St. Clair, Martinsville, for defendants-appellees.

HOFFMAN, Judge.

Petitioner-appellant Indianapolis Power & Light Company (IPALCO) brought this action against defendants-appellees Fredrick Eugene Barnard and Lora Jane Barnard, husband and wife, and Marshall Milhon and Janet Milhon, husband and wife, to condemn a right-of-way across their land for electrical transmission lines.

IPALCO's complaint alleged inter alia that it is an Indiana corporation engaged in the business of generating and selling electricity to consumers in the Indianapolis area and as such has statutory authority as a public utility to exercise powers of eminent domain in the acquisition of real property interests. It further alleged that it is necessary for IPALCO to construct a new high voltage transmission line from its Petersburg Generating Plant in Pike County, Indiana, to its Hanna Substation in Marion County, Indiana, and that the appellees own certain described real estate which is in the path of the proposed line thereby necessitating IPALCO's condemnation for the right-of-way.

The Milhons as leaseholders in the described real estate filed their objections as provided for by IC 1971, 34-11-1-5 (32-11-1-5) (Burns Code Ed.), ¹ asserting that the purpose for which the easement was sought was precluded by the land's prior public use as an airfield. After hearing evidence, the trial court entered its judgment and findings of fact which included the following:

"(T)he Defendants were operating a public general use airport in the vicinity of the land which the Petitioner sought to condemn and due to the presence of such airport, the erection of transmission lines would violate the so-called High Structures Act (IC 8-21-7) if a permit were not obtained from the State Aeronautics Commission pursuant to such law. According to the evidence presented herein the Petitioner has not yet received such authority.

"The Court further finds that the utility lacks such authority and the Petitioner could not use such land sought to be condemned for the purpose for which the land is being sought and which would authorize the Petitioner to obtain an order of appropriation as prayed for in such petition.

"The Court further finds the Petitioner could not lawfully use the land sought to be condemned for the purpose set forth in their petition and that the Petitioner further lacks statutory grounds to condemn such land and obtain an order of appropriation as prayed for in their petition."

From the foregoing judgment IPALCO perfected this appeal contending contrary to the trial court's findings that it was invested with the statutory authority to condemn the right-of-way and that it could use the land sought for the purpose alleged in its complaint. IPALCO asserts that it comes within the status required by IC 1971, 32-11-1-1 (Burns Code Ed.), and has made an appropriate determination of necessity under IC 1971, 32-11-1-2 (Burns Code Ed.).

Appellees' response is that the findings of the trial court are general and that there is no "error" involved concerning an "order or ruling." It is argued instead that on an appeal from a negative judgment, the sole issue concerns whether the judgment was clearly erroneous as being unsupported by the evidence.

However appellees' attempt to circumscribe the issues on appeal to a general consideration of the evidence obscures questions of law properly preserved by IPALCO. Under Indiana Rules of Procedure, Trial Rule 52(D), the general finding or judgment controls as to matters not covered by specific findings. Those issues which are covered by specific findings however can be considered in the context of the trial court's conclusions of law based thereon. Sekerez v. Bd. of Sanitary Comm'rs et al. (1974), 160 Ind.App. 13, 312 N.E.2d 98 (transfer denied). Moreover, whether the findings are adequate depends upon whether they are sufficient to disclose a valid basis under the issues for the legal result reached in the judgment and will only be accepted if they are supported by evidence of probative value. In Re Marriage of Miles (1977), Ind.App., 362 N.E.2d 171 (transfer denied). See, Miller, etc. v. Ortman, etc. et al. (1956), 235 Ind. 641, 136 N.E.2d 17. Accordingly the first issue is whether IPALCO has the statutory authority to condemn the right-of-way in question.

IC 1971, 32-11-3-1 (Burns Code Ed.), provides for the legislative delegation of the power of eminent domain to certain corporations operating in the public interest. It states in pertinent part:

"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, * * * for the use of the public or for the use of 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, * * *."

Such demonstrates a legislative purpose that the power conferred be limited to the acquisition of real estate interests for the public purposes therein specified. Accordingly, the power to condemn land is a function of whether or not the property sought would be devoted to a public use which, in the case at bar, would be "to furnish, supply, transmit, transport or distribute electrical energy * * *." IC 1971, 32-11-3-1, supra ; Gradison v. Ohio Oil Co. (Dotlich v. Ohio Oil Co.) (1959), 239 Ind. 218, 156 N.E.2d 80.

Furthermore, IC 1971, 32-11-3-2, supra, vests discretion in the utility to determine what property to condemn providing:

"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."

Together these statutes authorize a public utility to condemn real property interests in such quantity and amount as deemed necessary. Ellis v. Public Service Company of Indiana (1976), Ind.App., 342 N.E.2d 921. Thus, if in its judgment the property sought to be appropriated is necessary for distributing electric energy, the utility has the right to condemn it as a public use. Dahl ex ux. et al. v. Northern Ind. Pub. Serv. Co. (1959), 239 Ind. 405, 157 N.E.2d 194.

Significantly the courts are not to infringe upon the administrative act of determining the necessity or reasonableness of the decision to appropriate and take land. Rather they are only to determine whether there is legislatively delegated legal authority which would allow the exercise of the power of eminent domain to acquire the land. Cemetary Co. v. Warren Sch. Twp. et al. (1957), 236 Ind. 171, 139 N.E.2d 538. Moreover the condemning authority's exercise of its power may not be prevented unless a clear abuse of discretion is shown. Guerrettaz v. Public Service Co. of Ind. (1949), 227 Ind. 556, 87 N.E.2d 721.

In the case at bar the parties stipulated that IPALCO is a corporation lawfully doing utility business in Indiana. Testimony revealed that IPALCO operates generating plants, transmission lines and other facilities for providing electricity to the public. In its complaint IPALCO alleged, and a witness for IPALCO testified, that towers and transmission lines would be placed on the land sought and that an offer to purchase the right-of-way from the landowners was previously made. No contrary evidence was introduced concerning IPALCO's statutory authority to exercise the power of eminent domain under IC 1971, 32-11-3-1, supra.

In addition the uncontradicted evidence in the case at bar disclosed a present necessity for the condemnation based upon growing demand in the IPALCO system. A new generating station at the Petersburg Plant was constructed to increase capacity and it required an additional transmission line to the Hanna Substation in Marion County. The path of the new line was parallel to an existing corridor following the shortest route from IPALCO's Pritchard Plant near Martinsville, Indiana, and was not more than 85 feet to the south of the existing line on the property sought to be condemned. Such circumstances demonstrated the immediate necessity of the take, Shedd v. Northern Indiana Public Service Co. (1934), 206 Ind. 35, 188 N.E. 322, and disclose no arbitrary or fraudulent means in selection of the route. Guerrettaz v. Public Service Co. of Ind., supra.

Therefore, IPALCO's general allegation as to the use which it intends to make of the property interest sought, Vandalia Coal Co. v....