Meyer v. Northern Indiana Public Service Co., s. 869S192-869S193

• Decision Date: 08 May 1970
• Docket Number: Nos. 869S192-869S193,s. 869S192-869S193
• Parties: Florence MEYER, Also Known as Florence Meyer Bas, Appellant, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee. George H. DZUR, Eva Dzur and Loren Dzur, Appellants, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee.
• Court: Indiana Supreme Court

Page 57

258 N.E.2d 57

254 Ind. 112

Florence MEYER, Also Known as Florence Meyer Bas, Appellant, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee.

George H. DZUR, Eva Dzur and Loren Dzur, Appellants, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee.

Nos. 869S192-869S193

Supreme Court of Indiana.

May 8, 1970.

Duane W. Hartman, Glenn J. Tabor, Blachly & Tabor, Valparaiso, for appellants.

William H. Eichhorn, James L. Kennedy, Schroer, Eichhorn & Morrow, Hammond, for appellee.

GIVAN, Judge.

This case was commenced as two separate condemnation actions brought by plaintiff-appellee against each appellant to appropriate an easement of right-of-way across appellants' property in order that appellee can construct and maintain electrical transmission lines thereon. These actions were consolidated in August, 1969, in this Court on motion of the appellants pursuant to then existing Rule 2--7. ¹

The appellee sought to appropriate an easement 200 feet in width and 2,149 feet in length across Defendant Dzur's property. It also sought to appropriate an easement on Appellant Meyer's property which varied in width from 89.02 feet at its narrowest point to 152 feet at its maximum width and was 4,838 feet in length.

In both cases the defendants filed objections, which objections were, after hearing, overruled, orders of appropriation entered and appraisers appointed to assess the damages.

In each instance the appellants have appealed to this Court from the interlocutory order overruling their objections and appointing the appraisers as a direct appeal under Burns' Ind.Stat.Ann. § 3--1705.

In each case the appellants have assigned as error in this Court the trial Court 'erred in overruling appellants' objections 7, 8 and 9 concerning appropriating more property than presently necessary.'

An examination of the record discloses the facts in these cases to be as follows: Roth Morris, right-of-way engineer for appellee, testified on direct examination that he had participated in the planning of the line to be constructed and in the selection of the right-of-way. That the present plans and need call for a 345 KV transmission line and that the appellee would need 150 feet of right-of-way width for the construction and maintenance of such a line. That the reason for the acquisition of a 200 foot right-of-way was that the appellee had future plans for the construction of a 138 KV line to be placed on the same right-of-way. He testified, however, that there were no memoranda concerning the planning of the 138 KV line because 'we really haven't started planning. This is ahead of any planning that I would get into. Planning of the line has not actually begun except that we have an anticipated load that's the reason that we are doing what we are.' When asked if it was possible that the 138 KV would be constructed more than six years from the date of the hearing, he replied that he did not know.

Appellant Loren Dzur testified that a Mr. Etzler had represented to the property owners that it would be ten years or more before the 138 KV line would be constructed and that all the property owners had to worry about was one tower line. This was presumably the 345 KV line to which Mr. Morris had referred in his testimony concerning immediate plans for construction.

Concerning the Meyer property Mr. Morris testified that the entire 200 foot right-of-way was partially on the Meyer property and partially on the property immediately north of Meyer, thus explaining the reason for the more narrow width of the land acquired from the Meyers than from Dzurs.

It is the position of the appellants that although the appellee may condemn for future use, the basis of this future use must be on present necessity. See Nichols on Eminent Domain, § 4.11(2), page 561. The evidence in this case clearly shows that the present need for construction is the 345 KV line and that the width of right-of-way necessary for the construction of such a line is 150 feet. There is no evidence in this record of any immediate plans or need for the construction of the additional 138 KV line. Eminent domain is limited by the necessity of the take and the condemning authority may condemn only for future use which is fairly and reasonably needed. Kessler v. Indianapolis (1927), 199 Ind. 420, 157 N.E. 547.

In both of these cases the appellee has sought to condemn a right-of-way 200 feet in width when their immediate need and the need for the near future by their own testimony only requires a 150 foot right-of-way. The speculation by their engineer that sometime in the future, maybe as much as six or ten years in the future there will possibly be a necessity for an additional line does not justify imposing the additional 50 foot easement upon the properties of the appellants. To do so...