Oxendine v. Public Service Co. of Indiana, Inc.

• Decision Date: 26 August 1980
• Docket Number: No. 1-480A98,1-480A98
• Citation: 423 N.E.2d 612
• Parties: John OXENDINE and Beulah Oxendine, Defendants-Appellants, v. PUBLIC SERVICE COMPANY OF INDIANA, INC., Plaintiff-Appellee, Fernn L. HIGGENBOTHAM, Defendant-Appellant, v. PUBLIC SERVICE COMPANY OF INDIANA, INC., Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 612

423 N.E.2d 612

John OXENDINE and Beulah Oxendine, Defendants-Appellants, v. PUBLIC SERVICE COMPANY OF INDIANA, INC., Plaintiff-Appellee, Fernn L. HIGGENBOTHAM, Defendant-Appellant, v. PUBLIC SERVICE COMPANY OF INDIANA, INC., Plaintiff-Appellee.

No. 1-480A98.

Court of Appeals of Indiana, First District.

Aug. 26, 1980.

Benjamin F. Crawford, Felling, Crawford & Wagner, Max E. Goodwin, Mann, Chaney, Johnson, Hicks & Goodwin, Terre Haute, for defendants-appellants.

Raymond H. Modesitt, Patrick, Gabbert, Wilkinson, Goeller & Modesitt, Terre Haute, Frank T. Lewis, Plainfield, for plaintiff-appellee.

MEMORANDUM DECISION

NEAL, Judge.

STATEMENT OF THE CASE

This is a consolidated interlocutory appeal by defendants-appellants (Landowners) from adverse judgments in two eminent domain actions, consolidated for trial, brought by Public Service Company of Indiana, Inc. (PSI), wherein the trial court overruled the landowners' objection to the taking and ordered the appropriation of an easement for a transmission line across two properties in favor of PSI. Appellants John Oxendine and Beulah Oxendine are the owners of one parcel and appellant Fernn L. Higgenbotham is the owner of the other one.

We affirm.

STATEMENT OF THE FACTS

PSI is a public electric utility engaged in the business of generating, transmitting, distributing, and selling electricity. It determined to build a new 345,000-volt transmission line from its generating station in Gibson County to its generating station in Vermillion County. The line is not a service line for customers, but PSI claims that it is necessary to insure the stability of the Gibson County generating plant and to insure the reliability of the PSI network system of electricity distribution to its customers in Indiana. PSI selected a route for the new transmission line which crossed the appellants-landowners' two properties. Negotiations for the purchase of the easements failed and PSI instituted the eminent domain actions which are the subject of this appeal. The easements are each 150 feet wide and run 1,967 feet on the Oxendine

property and 2,544 feet on the Higgenbotham property.

ISSUES

Landowners have preserved for review the following issues:

I. Whether PSI proved by sufficient evidence that the transmission line is needed for a proper public purpose.

II. Whether selection of and adherence to the route across the Oxendine and Higgenbotham properties constitutes a clear abuse of PSI's discretion.

III. Whether PSI proved by sufficient evidence that it made good faith, adequate precondemnation offers to purchase a right-of-way across the properties, in that the amounts offered were not shown to be based on the actual characteristics of the particular land and improvements.

IV. Whether PSI's precondemnation offers complied with the 1977 amendments to the 1905 Eminent Domain Act, Ind.Code 32-11-1-2.1 (Supp.1979), in that they were not proved to be based on good faith opinions of fair market values.

V. Whether PSI's precondemnation offers complied with Ind.Code 32-11-1-2.1, in that PSI did not adhere to the uniform offer form mandated by that statute, but instead added to the statutory form a proposed agreement calculated to release other claims or settle other disputes between the parties.

VI. Whether the trial court erroneously quashed subpoenas for PSI's construction budgets for the transmission line, in that the budgets would have constituted evidence of PSI's opinion of when the line will actually be needed.

VII. Whether the trial court abused its discretion by refusing to permit supplemental evidence showing a substantial drop in peak demand by PSI's Indiana customers for the winter of 1979-1980.

VIII. Whether permitting a corporation whose primary purpose is to make a profit to forcefully take private property of Indiana citizens in the manner shown by the record here would be consistent with basic constitutional principles.

Issue I.

Landowners raise the issue of whether PSI proved by sufficient evidence that the Gibson to Dresser transmission line is needed for a proper public purpose, making a two-pronged argument under the emphasized language. They contend: 1) that PSI did not prove an actual present or future need for the line but only a remote and speculative need; and 2) that PSI failed to show a proper public purpose for the line in that the evidence shows that it is to be used not to serve the needs of Indiana residents but to supply electricity to "other power companies not parties to the action, and for the most part outside Indiana." PSI submits that the evidence is more than sufficient to justify findings that PSI has a present need for this transmission line to insure the reliability of its network system of distribution and the stability of the Gibson generating station, and that such needs constitute a public purpose.

Ind.Code 32-11-3-2 provides:

"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 use and purposes, except that for rights-of-way, the condemnor shall take, acquire, condemn and appropriate an easement." (Emphasis added.)

The Supreme Court said in Dahl v. Northern Indiana Public Service Company, (1959) 239 Ind. 405, 410-11, 157 N.E.2d 194:

"The rule applicable here is succinctly stated in Guerrettaz v. Public Service Co. of Ind. (1949), 227 Ind. 556, at page 561, 87 N.E.2d 721, as follows:

'All questions concerning the expediency of taking private property for public use are exclusively for the legislature. Unless the action of the legislature is arbitrary, and the use for which the property is taken is clearly private, the courts will not interfere.'

In Slentz et al. v. City of Fort Wayne et al. (1954), 233 Ind. 226, at page 231, 118 N.E.2d 484, this court reaffirmed the general rule which has long been established and consistently followed in Indiana, quoting from Bragg v. Weaver (1919), 251 U.S. 57, 40 S.Ct. 62, 64 L.Ed. 135, as follows:

' "Where the intended use is public, the necessity and expediency of the taking may be determined by such agency and in such mode as the state may designate. They are legislative questions, no matter who may be charged with their decision, and a hearing thereon is not essential to due process in the sense of the 14th Amendment. (Citing authorities.)" '

And, further, at page 232 of 233 Ind. (118 N.E.2d 484):

'The necessity and expediency of taking property for public use is a legislative and not a judicial, question.' (Citing authorities.)

The statute vests discretion in the appellee, utility, herein, to take or appropriate property for public use, and if in its judgment the property herein sought to be appropriated was necessary to distribute electric energy to the public, appellee had the right to condemn, and its judgment therein cannot be questioned or superseded by the courts except for fraud, capriciousness or illegality. (Citations omitted.)"

The contention here is not that PSI's taking was fraudulent or capricious, but that it was unlawful in the sense defined by the Supreme Court in Country Estates, Inc. v. Northern Indiana Public Service Company, (1970) 254 Ind. 108, 258 N.E.2d 54, and Meyer v. Northern Indiana Public Service Company, (1970) 254 Ind. 112, 258 N.E.2d 57, a taking for a remote or speculative purpose. In Meyer, the utility's engineer speculated that sometime in the future, maybe as much as six to ten years in the future, there would possibly be a necessity for an additional line. The court termed this a purely speculative future need and not the basis for a lawful taking.

On the other hand, a utility's determination of necessity may be based upon either a present immediate need or a fair and reasonable future need. Ellis v. Public Service Company of Indiana, Inc., (1976) 168 Ind.App. 269, 342 N.E.2d 921.

Specifically, the trial court found the transmission line necessary to: 1) allow PSI to reliably furnish electrical energy required by its customers in Indiana; 2) insure the stability of PSI's generating station in Gibson County; and 3) insure the reliability of PSI's network system of electrical distribution to its customers in Indiana.

In reviewing the sufficiency of the evidence to support a conclusion that the taking was necessary for a present immediate need or a fair and reasonable future need, we cannot weigh conflicting evidence nor resolve questions concerning the credibility of the witnesses, but must consider only that evidence most favorable to the prevailing party together with all reasonable inferences to be drawn therefrom. If from that viewpoint, there is evidence of probative value to sustain the trial court, its findings and judgment will not be disturbed. Indiana and Michigan Electric Company v. Schnuck, (1973) 260 Ind. 632, 298 N.E.2d 436.

PSI Systems Planning Manager James Benning testified the proposed line is necessary to enhance and insure the stability of the Gibson generating station in line with the East Coast electrical distribution network and to insure the reliability of the PSI network.

He testified an outage in August, 1978, was largely due to the fact this line was not in service. Two existing lines were rendered inoperative by a falling tree and a malfunctioning switch, causing an overload on the system which was incomplete because this line was not completed in 1977 as originally planned. The resulting cascading effect rendered the entire Gibson generating station inoperative, causing a total loss of power from the station and damage to its generating units. Two days were required to restore normal operations during which time PSI had to purchase power required to service its customers from other utilities. Benning testified that if this line had been in service, the overload would not have occurred and normal operations would have continued.

He further testified that a fifth and final generating unit was...