259 Ind. 408 | Ind. | 1972
Rehearing
Opinion Granting Petition For Rehearing
Our prior decision and opinion reversing the trial court was handed down on February 16, 1972 and appears in 257 Ind. 670, 278 N. E1. 2d 561. Our re-examination of the record, in light of the petition and all briefs, discloses that our earlier reversal and order for a new trial were improvidently granted. Accordingly, Appellee’s petition for rehearing is granted; and our decision and opinion of February 16, 1972 is, hereby, set aside.
Appellee has heretofore filed its alternative motion to dismiss this appeal or affirm' the interlocutory order of the trial
The appellant’s argument is divided into three parts, but the theme of each, in essence, is the same, and that is that the trial court erred in permitting the appellee to condemn an easement 150 feet in width across her land, in view of undisputed evidence that it had previously acquired a strip of land approximately 100 feet in width contiguous to the easement sought from the appellant and further undisputed evidence that the purpose for which the easement was sought required a width of but 150 feet.
This is the second appeal between the same parties in the same cause. Prior to trial from which the first appeal was taken, the appellee determined that it needed a right-of-way across an extensive area of northern Indiana, for the construction of power lines. Portions of such right-of-way were acquired by purchase and others had to be condemned. Among the condemnees were the appellant, Florence Bas and one George Dzur. The widths of the right-of-way sought from Bas varied from 89.02 feet to 152 feet, and the width of the right-of-way sought from Dzur was 200 feet. At the hearing, it was shown that the appellee intended to utilize the rights-of-way for two power lines, one designated a 345 KV line requiring a width of 150 feet and one designated a 138 KV line, requiring a width of 50 feet. It was clear from the evidence, however, that there was an immediately foreseeable need for only the 345 KV line; but the trial judge, nevertheless, entered an order permitting a “take” of the entire widths sought. On appeal, the two cases were consolidated, as they involved the same issues. It should be noted at this point, however, that the Bas lands and the Dzur lands are not contiguous. On May 8, 1970 we
“* * * However, in the case at bar we are not quarreling with the purposes stated by the appellee or the amount of land needed to accomplish these purposes. In fact, we accept their statements in this regard. It is shown by their own statements, No. 1 that their present need is for 150 feet to erect a 345 KV transmission line; No. 2 at some time in the future they may need a 138 KV line for which they will need another 50 feet.
“The question thus in this case is not a question of a degree of necessity to accomplish the purposes of the appellee in providing for its immediate needs and needs in the reasonably foreseeable future, but this is a question of whether there is any necessity whatever to justify the taking of the additional 50 feet for the prospective 138 KV line. We hold that the facts in this case demonstrate that there is no such necessity and that the taking in this case insofar as it exceeds 150 feet is unauthorized and is, therefore, unlawful. Nichols on Eminent Domain, § 4.11 [3], page 572.
“The trial court is, therefore, reversed, and the cause remanded for further proceedings not inconsistent with this opinion.”
When the case at bar went back to the trial court, the complaint and the order of taking were amended to reduce the widths of the easements to 150 feet. At this point, the appellant was granted leave to introduce additional evidence to show that the appellee had acquired other land contiguous to the right-of-way sought which, when combined with the right-of-way sought, would give the appellee a total width in excess of 150 feet. Appellant introduced evidence that is not disputed that in December 1968 and in February 1969 (approximately six months prior to the first trial) the appellee did purchase three strips of land, all contiguous to and north of the right-of-way sought from the appellant. These strips
The aforesaid plan of locating the 345 KV line upon the southerly 150 feet is also borne out by the evidence in the Dzur trial which was before us on the first appeal. This makes it clear to us, as it must have been to the trial judge, that the concept of planning the 345 KV line upon such portion was not an idea that occurred to the utility company to abuse its powers of eminent domain and by such scheme acquire a right-of-way to which it was not entitled.
Our determination of this appeal is controlled by Wampler v. Trustee of Indiana University (1961), 241 Ind. 449, 172 N. E. 2d 67. In that case, the University sought to condemn land for a dormitory parking lot. The landowner resisted upon the basis that it was not necessary
The appellant has placed great emphasis upon her assertion that the appellee made its acquisition from the contiguous owner, Truitt, under threat of condemnation. We do not agree that the evidence compels this conclusion. True, the letter offering to purchase a right-of-way indicated that condemnation proceedings would be commenced if the offer were refused. This is the only evidence of any threat of condemnation, and it preceded the conveyance by three months. We do not think that such evidence would compel the trial judge to find that the sale was made under threat. There is an even greater reason, however, why we are not persuaded by appellant’s argument that the Truitt land was obtained under threat of condemnation. Assuming, arguendo, such to be the case, it is immaterial to the issues here, since Mr. Truitt is not a party to this litigation. We, of course, could not condone such an abuse of the power of eminent domain but relief therefrom, if appropriate, would be confined to the injured party.
On February 16, 1972, we also handed down a decision in related cases reported at 278 N. E. 2d 563 holding that where
Dissenting Opinion
Dissenting Opinion
I dissent from the majority opinion on the petition for rehearing in this case and would adhere to our original opinion handed down February 16, 1972, and published in 278 N. E. 2d 561.
The majority opinion on the petition for rehearing states that even if they assume the right-of-way owned by Northern Indiana Public Service Company on the Truitt property was purchased under threat of condemnation for the same project as the right-of-way proposed to be condemned across the Meyer property, that it is immaterial to the issues in this case because Mr. Truitt is not a party to this litigation. I fail to see any logic to this observation. The question is not whether Mr. Truitt is a party but whether or not Northern Indiana Public Service Company under threat of condemnation has already acquired a substantial portion of the right-of-way needed at this particular location for this project. The facts in this case clearly disclose this to be the case.
The additional facts recited by the majority on this petition for rehearing that it will be inconvenient for Northern Indiana
Note.—Reported in 287 N. E. 2d 882.