Morgan County Rural Elec. Membership Corp. v. Indianapolis Power & Light Co.
Decision Date | 02 November 1973 |
Docket Number | No. 1173S220,1173S220 |
Citation | 260 Ind. 164,302 N.E.2d 776 |
Parties | , 261 Ind. 323 MORGAN COUNTY RURAL ELECTRIC MEMBERSHIP CORPORATION, Appellant (Defendant Below), v. INDIANAPOLIS POWER & LIGHT COMPANY, Appellee (Plaintiff Below). |
Court | Indiana Supreme Court |
H. Richard Miles, Martinsville, Parr, Richey, Obremskey, Pedersen & Morton, Lebanon, for appellant.
Marcus E. Woods, Paul L. Butt, Charles M. Wells, Jon D. Noland, Barnes, Hickam, Pantzer & Boyd, Indianapolis, for appellee.
OPINION ON PETITION TO TRANSFER
This case arises from a proceeding brought by a municipally franchised utility (plaintiff-appellee, Indianapolis Power and Light Company, hereinafter IPALCO), seeking to condemn property of another utility (defendant-appellant, Morgan County Rural Electric Membership Corporation, hereinafter REMC). IPALCO is a municipally franchised utility serving the town of Mooresville; REMC serves the outlying community of that area. The town of Mooresville recently annexed a non-contiguous parcel of land which is the site of the Kendrick Memorial Hospital. This annexation was made pursuant to IC 1971, 18--5--10--30.1, Ind.Ann.Stat. § 48--727a (Burns' 1972 Cum.Supp.), which provides as follows:
The territory which was annexed had previously been rendered electric utility service by REMC. Because the territory was now annexed by the town and was thereby made a part of the municipality, IPALCO (the utility franchised by the municipality) sought to condemn certain electric utility property located within the annexed territory. This condemnation was sought pursuant to IC 1971, 8--1--13--19, Ind.Ann.Stat. § 55--4418a (Burns' 1972 Cum.Supp.), which provides in pertinent part as follows:
This statute (Section 55--4418a) quite clearly provides for condemnation by the municipally franchised utility (IPALCO) of territory served by another utility (REMC) when the municipality annexes that territory. However, REMC argues that legislative intent and public policy require that such condemnation not be permitted when the territory is annexed pursuant to Section 48--727a, supra. That is, REMC contends that such condemnation should not occur where the area annexed by the municipality is non-contiguous.
The trial court overruled the objections of REMC and appointed appraisers to proceed with the condemnation appropriation. REMC took an appeal to the Court of Appeals for the Third District. The Court of Appeals reversed, holding that the Legislature did not intend the term 'annexes' in section 55--4418a, supra, to apply to an annexation conducted pursuant to section 48--727a, supra. 293 N.E.2d 237.
IPALCO has filed a petition to transfer with this Court. In its petition to transfer, IPALCO makes the following contention:
'The decision of the Court of Appeals is in error in that such decision erroneously decides a new question of law in holding that . . . § 55--4418a . . ., which authorizes an electric utility serving a municipality to purchase or condemn the property of another electric utility rendering service in (the) annexed . . . territory, does not confer such a right of condemnation as to non-contiguous territory annexed to a municipality pursuant to . . . § 48--727a . . ..'
The holding of the Court of Appeals is contrary to a literal reading of the statutes involved. Section 55--4418a (supra) refers simply to annexation of 'additional territory' and makes no distinction between contiguous and non-contiguous territory. The Court of Appeals took the position...
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