Duke Energy of Indiana, LLC v. City of Franklin, Indiana

FILED
Dec 16 2016, 8:48 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
John D. Papageorge Lynnette Gray
Steven C. Shockley Johnson Gray & Johnson
Jeffrey D. Stemerick Franklin, Indiana
Taft Stettinius & Hollister LLP
Brian C. Bosma
Indianapolis, Indiana
Steven E. Runyan
Keven D. Koons
Kroger, Gardis & Regas, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Duke Energy of Indiana, LLC, December 16, 2016
Appellant-Plaintiff, Court of Appeals Case No.
41A01-1607-CT-1549
v. Interlocutory Appeal from the
Johnson Superior Court
The Honorable Kevin M. Barton,
City of Franklin, Indiana, Judge
Appellee-Defendant. Trial Court Cause No. 41D01-1606-
CT-92
Bradford, Judge.
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Case Summary
[1] Appellee-Defendant the City of Franklin, Indiana (“the City”), in cooperation
with the State, has proposed a plan to revitalize and improve a stretch of
Indiana State Road 44 (“SR 44”) that serves a major east-west artery (“the
Traffic Plan”). The Traffic Plan includes, inter alia, a proposal to connect the
three-way intersection of County Club Lane and Longest Drive (“the
Intersection”) to SR 44. Appellant-Plaintiff Duke Energy of Indiana, LLC
(“Duke”) holds a utility easement in the land underneath the proposed
Intersection expansion and requested a preliminary injunction to prevent the
City from completing the expansion of the Intersection, contending the City
lacks sufficient property rights to allow it to do so and that the expansion would
impermissibly interfere with its easement rights. The trial court denied Duke’s
request for a preliminary injunction, and Duke now appeals. Because we
conclude that Duke lacks standing to challenge the City’s property interests in
the real estate at issue and that the trial court did not abuse its discretion in
concluding that Duke does not have a reasonable probability of success at trial,
we affirm.
Facts and Procedural History
[2] The following excerpted diagram, submitted in un-excerpted form as Plaintiff’s
Exhibit 13, is helpful to understanding the issues presented by this case.
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[3] For a stretch in the City, Longest Drive and SR 44 (a/k/a King Street) run
generally east-west and parallel, with Longest Drive being intersected by
County Club Lane at the Intersection. Duke holds the Easement, which runs
north-south, encompasses the Intersection, and includes utility pole 825-4181,
which is adjacent to and just northwest of the Intersection. The Easement
grants Duke the right to “construct, operate, patrol, maintain, reconstruct and
remove an electric line, including necessary poles, wires, and fixtures attached
thereto, for the transmission of electrical energy[.]” Plaintiff’s Exs. 18, 19.
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[4] At issue is the Traffic Plan, by which the City intends to improve SR 44
between SR 144 on the west side and I-65 on the east. The Traffic Plan
includes a proposal to provide access to SR 44 from the Intersection, as shown
below:
Plaintiff’s Ex. 11 (excerpt).
[5] Early in 2016, the City presented Duke with the Traffic Plan, and Duke
informed the City that it believed that the expansion of the Intersection would
unreasonably interfere with its easement rights. On June 7, 2016, Duke filed
for a preliminary injunction to prevent the City from constructing the proposed
expansion of the Intersection. The next day, the trial court entered a temporary
restraining order—by which the City agreed to abide—pending resolution of the
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preliminary injunction issue. On July 5, 2016, the trial court denied Duke’s
request for a preliminary injunction, ruling that Duke had failed to establish
unreasonable interference with its easement rights. On this basis, the trial court
concluded that Duke had failed to show a reasonable likelihood of success at
trial and so denied Duke’s request for a preliminary injunction. The trial
court’s order provides, in part, as follows:
5. The City’s project … is designed to enhance the visual
appearance of [SR 44] so as to encourage development on the
east side of Franklin and to provide an attractive area for
travelers on I-65 to stop for food and lodging. By [its] design,
the project is meant to slow traffic on [SR 44].
6. In the area of Country Club Lane, [SR 44] is now a
well traveled limited access four lane highway. [SR 44] connects
Franklin to Interstate 65, which is a major north-south divided
access highway.…
7. As part of the roadway improvement project, the City is
opening access to Country Club Lane from both lanes of travel
on [SR 44].… A stop sign will be added for eastbound traffic at
Longest Drive that is entering Country Club Lane. A stop sign
already exists for westbound traffic at Longest Drive and
Country Club Lane.
8. Mayor McGuinness opined that opening and closing of
access points from [SR 44] is designed to separate the
commercial and residential uses of property along [SR 44] and to
remove commercial traffic from residential streets.
9. City Engineer, Travis Underhill, testified that part of
the goal of the overall corridor project is to safely manage
increased traffic in the area and plan for future traffic and
anticipated development. Mr. Underhill testified that from an
engineering standpoint and safety standpoint, it is desirable to
reduce commercial traffic through residential neighborhoods and
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that the direct access routes as proposed will reduce conflict
points for motorists.
10. A report prepared by HWC Engineering states that the
change in access to [SR 44] is “to promote more efficient traffic
movements along [SR 44]”. Exhibit 6.
11. Country Club Lane provides access to a private
country club known as Hillview Country Club. A tenant at
Hillview Country Club is a public restaurant known as Scotty’s
Brew[house]. Scotty’s Brew[house] opened in October of 2015.
At all times relevant, a restaurant has been located at Hillview
Country Club for the use of [its] members prior to the opening of
the public restaurant. Country Club Lane is a private
roadway.…
12. [SR 44] has existed on the east side of the City at all
times relevant. [SR 44] connects Franklin with the City of
Shelbyville to the east and the City of Martinsville to the west.
Prior to 1970, [SR 44] was a two lane roadway. Access to
Hillview Country Club was gained directly from [SR 44]. In
1970, the State of Indiana converted [SR 44] to a four lane
limited access highway from I-65 to the older residential area on
the eastside of Franklin. [SR 44] was shifted to the south. A new
road, Longest Drive, was created to the north of [SR 44].
Longest Drive is generally an east-west access road that is
parallel to [SR 44]. Access to Longest Drive was gained to the
west of Country Club Lane at a short access road known as
Milford Drive. A portion of Longest Drive was constructed on
the roadbed of the pre-1970 [SR 44].
13. After the 1970 redesign, traffic to Hillview Country
Club was required to exit [SR 44] on the north side at Milford
Drive, immediately turn right onto Longest Drive, proceed east
on Longest Drive to Country Club Lane and turn left or north
onto Country Club Lane. Country Club Lane could not be
accessed directly from [SR 44]. Longest Drive and [SR 44] were
separated by a grassy strip.
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14. Under the current roadway project, traffic would be
able to proceed north from [SR 44] directly to Country Club
Lane. West bound traffic on [SR 44] would be able to turn right
onto Country Club Lane. A break would be created in the
existing median on [SR 44] so that east bound traffic on [SR 44]
would be able to access Country Club Lane. Approximately
forty feet after exiting [SR 44], traffic would encounter Longest
Drive. Longest Drive provides access to residential areas to the
east and to the west of Country Club Drive that have been
constructed since the 1970 redesign of [SR 44]. A stop sign
would be added for east bound traffic on Longest Drive. The
result of the City’s redesign would change Longest Drive-
Country Club Lane to a four way intersection and would be
located just north of a three way intersection at Country Club
Lane and [SR 44]. Traffic would be regulated by stop signs as
opposed to use of automatic traffic control devices. The City’s
project would also introduce a pedestrian “trail” on the north
side of [SR 44].
….
26. Utility pole 825-4181 is located at the intersection of
Longest Drive and Country Club Lane. The pole is located
inside the Easement and just north of the fee line of property
acquired by the State of Indiana.
27. The City’s project would alter the traffic flow past
utility pole 825-4181. Traffic flow would change in the following
manner:
A. Traffic accessing Hillview Country Club and Scotty’s
Brew[house] would come off of [SR 44]. Currently, traffic exits
[SR 44] north onto Milford Drive, immediately turns right or east
onto Longest Drive, proceeds east on Longest Drive an
undetermined but relatively short distance and then turns left or
north onto Country Club Lane. In addition, traffic could
currently access Country Club Lane from an opening from [SR
44] to the east of Country Club Lane. However, the latter option
is a less direct route through a condominium community. As a
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result of the City’s project, traffic accessing Hillview Country
Club and Scott[y]’s Brew[house] would proceed onto Country
Club Lane directly from [SR 44]. The Milford Drive exit from
[SR 44] will remain open. Traffic could still access Hillview
Country Club and Scott[y]’s Brew[house] in the same manner as
before, but the assumption is that the public will prefer the more
direct route. The exit from [SR 44] to the east at Franklin Cove
Court would be closed. However, the public could still access
Hillview Country Club and Scott[y]’s Brew[house] from the east
by using a new exit further to the east onto Fairway Lakes Drive.
The result of the changes would mean that traffic accessing
Hillview Country Club and Scott[y]’s Brew[house] will proceed
straight past pole 825-4181 as opposed to turning at the pole.
Inasmuch as vehicles de[]ccelerate to turn, traffic would be
proceeding faster past pole 825-4181 after completion of the
City’s project.
B. The success of Hillview Country Club is dependent
upon expansion of membership. The success of Scotty’s
Brew[house] is dependent upon attracting customers. Scott[y]’s
Brew[house] has placed information signs and directional signs
on Interstate 65. Mayor McGuiness testified that the City’s
project is designed to create a situation for the improvement of
business and commercial development on the east side of
Franklin. Inasmuch as access to Hillview Country Club and
Scott[y]’s Brew[house] will be easier for the public, there may be
increased traffic flow past pole 825-4181 as a result of the City’s
project. Development on the eastside of Franklin will also cause
an increase in traffic past pole 825-4181 without regard to
whether access is directly provided from [SR 44].
C. A residential development is being developed to the
northwest of Hillview Country Club. The residential
development will be accessed from Eastview Drive, which is the
first major arterial road that is accessed from [SR 44] west of the
area at issue. A road will connect the residential development to
a parking lot at Hillview Country Club and Scott[y]’s
Brew[house]. Although Country Club Lane is a private
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roadway, the public could utilize Country Club Lane and the
parking lot to access the new residential development as well as
Eastview Drive. Accordingly, traffic could increase past pole
825-4181 by reason of the connection of the residential
development to the Hillview Country Club parking lot.
However, the traffic flow caused by the residential development
would likely be minimal inasmuch as Eastview Drive would offer
a more favorable route of travel.
28. Duke asserts that the creation of the four way and
three way intersections in immediate proximity to each other
with the increased volume and speed of traffic proceeding past
pole 825-4181 increases the hazard to which [its] repair and
maintenance crews are exposed. The City asserts that the
elimination of the two ninety degree turns required to access
Country Club Lane will create a safer condition. Engineer Travis
Underhill opined that turning a vehicle created a more hazardous
condition than operating the vehicle in a straight line.
29. No evidence was submitted of vehicular collisions or
collisions between a vehicle and utility pole 825-4181 or other
poles in the area.
30. Duke’s witness, Gary McNamee, acknowledged that
the change proposed by the City’s project will not affect Duke’s
use of the easement for the transmission and distribution of
electricity except as it relates to the repair and maintenance of the
electric lines.
31. Testimony was presented as to repair and
maintenance work that would be required to be performed.
Repairs would need to be made if a pole was damaged as a result
of a collision by a motor vehicle or if an electrical line should
come down as a result of a collision by a vehicle with a pole or
weather related occurrences. Poles may need to be replaced due
to deterioration of the pole.
32. In order to maintain and to repair electric lines, Duke
utilizes bucket trucks and line trucks. The bucket trucks can
reach a height of eighty (80) feet and have outriggers that
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stabilize the vehicle while in use. Due to the outriggers, the truck
would occupy more space than the truck would occupy without
deployment of the outriggers. Stringing trucks could be required
to hold a still energized line while the line is repaired. In
instances in which a pole must be replaced, a crane may be
utilized to lift a new pole into place. A flatbed truck would be
required to transport the new pole. As part of the process of
repairing or replacing a pole or an electric line, traffic in
proximity to the pole would be subject to control so as to reduce
the risk of harm to Duke’s repair crews.
33. An increase in the speed and/or volume of traffic
would increase the size and extent of the area that would be
controlled so that Duke’s maintenance or repair crew could
safely perform their job.
34. Mr. McNamee testified that the more directions from
which traffic is approaching a work zone, the more people that
are required to control traffic. The more traffic that there is from
different directions, the greater is the risk that the traffic cannot
be controlled as well. Record, 6/14/2016, 10:56. The placement
of a pole in proximity to a street means that a repair crew would
be working in the street. Id., 11:14.
35. Mr. McNamee testified that the poles used in
transmission lines are bigger. The trucks that carry the poles are
bigger. The equipment used to install the poles is bigger. Due to
the size of the pole and the position that it has to take as the pole
is raised, it is more likely that both lanes of traffic must be shut
down. Record, 6/14/2016, 10:57.
36. In a letter to City Engineer Travis Underhill and
Mayor Joe McGuinness, Mr. McNamee stated that Duke does
not allow intersections within [its] easements. He articulated the
reasons as follows:
“Intersections consume more space in the Duke Energy
right-of-way, leaving less room for the line to be rebuilt or
for use to add a line in this right-of-way should it be
needed. Intersections reduce our ability to use the space
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that has [been] purchased for current transmission lines
and possible future new lines, whether they be permanent
or temporary due to storm damage.
Intersections create a heavier traffic flow of vehicles and
increase the risk of injury to Duke Energy crew members
when they are working on power transmission lines. Any
time utility work is performed in a vehicular traffic area, it
increases the risk of injury. An intersection increases
traffic and adds to the number of directions from which
that traffic may approach the working crews.
Some intersections require more signage and traffic
signals, which are also not permitted in the Duke Energy
right-of-way. When a Duke Energy line is damaged, the
intersection will likely need to be blocked during long
repair times, and this would close access for some traffic.
Repairing damaged transmission lines takes longer than
repairing lower-voltage distribution lines due to their size
and the fact that the equipment to do the work is not
always in the immediate location of the damage.”
Exhibit 25.
37. Marty Dickey, Manager of Transmission for Duke,
testified that if pole 825-4181 were to be replaced, it would be
replaced with a steel pole of either one or two pieces. The steel
pole would be taller and weigh more than the existing wooden
pole. A “lay down” area for preparation of the steel pole for
installation would be required. Mr. Dickey opined that pole
replacement would require closure of the roads in proximity to
the pole, to-wit: Country Club Lane and Longest Drive, but he
did not believe that the work would require closure of [SR 44].
Record, June 14, 2016, 1:17. If an intersection were installed at
Country Club Lane, access to the area off of [SR 44] would need
to be shut off as part of the closure. Id.
38. Mr. Dickey testified that the “more complex” the
traffic situation, the more traffic control would be required. Mr.
Dickey referred to a distance required for management of traffic
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as defined by the speed and volume of traffic. He testified that
traffic management could require directional signs and traffic
control personnel to control traffic as opposed to use of traffic
cones. However, Mr. Dickey did not render specific opinion as
to how the proposed intersection would change traffic control.
39. Mr. Dickey referred to a pole replacement on Madison
Avenue in Greenwood. The pole replaced carried both
transmission and distribution lines. Distribution to customers in
the area was not shut down. The pole replacement required that
Madison Avenue, a major arterial street in Greenwood, be
closed. So as to accommodate the desire of the City of
Greenwood to minimize the disruption caused by closure of a
major arterial street, the work was performed at night. The work
was performed without endangerment to Duke crews.
40. No evidence was submitted of repairs or maintenance
that had been conducted to pole 825-4181 or to the lines or other
poles in proximity to pole 825-4181.
41. If warranted to protect [its] maintenance or repair
crews, Duke will close a roadway so as to permit repairs or
maintenance to be safely performed. Although the City has not
been consulted on those occasions in which a road has been
closed by Duke to repair an electric line or pole, the City was not
opposed to closing roads to create a safe work environment for
utility maintenance and repair crews. Three occasions were cited
in which Duke had closed a public street for repairs.
42. Mr. McNamee also opined that the placement of the
trail in proximity to a utility pole could be a safety factor. The
trail should be at least twenty-five (25) feet from the utility pole.
The weight from a bucket truck, line truck or crane could damage
asphalt for a trail that is not constructed to handle the weight of
such equipment. The damage would be a safety factor to
pedestrians and bicycle traffic. No evidence was presented that
the trail would affect Duke’s use of the easement for the
transmission and distribution of electricity or constitute a hazard
to Duke’s maintenance or repair crews.
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43. The proposed trail would come no closer than seventy
to eighty feet from pole 825-4181 but would pass underneath
Duke’s transmission lines. Exhibit 18. The trail would be further
than 25 feet from pole 825-4181.
CONCLUSIONS
….
32. Duke adopted a policy in 2008 to exclude the
introduction of intersections within [its] easements.
….
34. Duke had identified to the City the reasons for
objecting to the intersection within the easement as a reduction in
the usable area of the easement, increase of traffic and the risk of
injury to repair crews and the introduction of signage and traffic
controls within the easement. The evidence focused upon the
increased risk of harm to repair crews.
35. The creation of a four point intersection in proximity
to a three point intersection does increase the number of variables
that are subject to being controlled. The volume and the speed of
traffic will increase. In the event that repairs or maintenance
must be performed to pole 825-4181 or in proximity to the pole,
the risk to repair and maintenance crews is now controlled by
road closure. In the event that repairs or maintenance must be
performed to pole 825-4181 or in proximity to the pole after the
introduction of the intersection into the easement, Duke would
still regulate the risk of harm to repair and maintenance crews by
road closure. The introduction of the intersection into the
easement would necessitate additional traffic control measures,
including blocking access to the area from [SR 44].
36. Duke asserts that the introduction of the intersection
into the easement will increase the risk of harm to [its] repair
crews. Intuitively, the placement of a four point intersection in
such close proximity to a three point intersection and which is
not regulated by an automatic traffic control device would seem
to increase the risk of harm to people and property occupying the
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intersection. Mr. Underhill, the City Engineer, opined that safety
would be improved by eliminating the two ninety (90) degree
turns for traffic going to Hillview Country Club and Scott[y’s]
Brew[house] and by keeping commercial traffic out of the
residential area. However, Mr. Underhill did not specifically
address the issue raised by Duke that the new intersection would
create new variables so as to increase the risk of harm.
Presumably, HWC Engineering and Mr. Underhill, as the
engineers responsible for public safety, have determined that the
new design does not unreasonably increase the risk of harm to
people and property within the redesigned intersection.
37. The Court does not find that the ability of Duke to
repair or to maintain [its] transmission lines would be affected by
the introduction of the intersection into the easement. In order to
repair or to maintain [its] electric lines, Duke may close a street.
The most likely maintenance issue cited by Duke would be the
replacement of pole 825-4181. Mr. Dickey testified that pole
replacement would require that Longest Drive and Country Club
Lane would need to be closed based upon the size of the
equipment and the space required. He did not believe that [SR
44] would be impacted. The City’s redesign would introduce a
new point of access from [SR 44]. The new point of access
would need to be blocked. Inasmuch as the repairs and
maintenance would require the closure of the road, the ability of
Duke to perform repairs and maintenance would continue as
before.
….
41. Indiana has recognized that a titleholder of the
servient interest can use the easement in any manner that does
not “materially impair or unreasonably interfere with the use of
the easement by the dominant estate holder.” Brown v.
Heidersbach, 172 Ind. App. 434, 442, 360 N.E.2d 614, 620 (Ind.
Ct. App. 1977)(citing Smith v. Holloway, 124 Ind. 329, 24 N.E.
886 (1890)).
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42. Indiana has not recognized Section 4.12 of the
Restatement of the Law, Third, Property (Servitudes). The City’s
interference with Duke’s Easement is not measured by the City
coming upon Duke’s Easement but whether the City interferes
with the grant of use, including repair and maintenance, under
the Easement. The limitation upon the titleholder is that the
titleholder not “materially impair or unreasonably interfere” with
the use of the easement. Logically, those who hold right of use
under the titleholder, including a public right-of-way, would be
subject to the same standard for interference with Duke’s right of
use under grant of Easement of material impairment or
unreasonable interference. The unreasonable interference
standard is the same as set forth in the Restatement of the Law,
Third, Property (Servitudes).
43. The Court does not conclude that there has been a
showing of material impairment, unreasonable interference or
irreconcilable conflict. As noted, the risk of harm is subject to
traffic regulation through road closure. The risk of harm is also
subject to regulation by the time at which the work would be
performed. Country Club Lane serves a private country club and
a public restaurant with set operating hours. The repair and
maintenance work can be carried out at time when the businesses
are closed. Inasmuch as Duke can and does close an area to
traffic to perform repairs and maintenance, Duke is essentially
arguing that the proposed intersection could increase the
disruption to the public from the closure of the road to perform
repairs or maintenance. Duke’s assertion may be valid, however,
the issue is the interference with Duke’s right of use under grant
of easement. At best, additional traffic control measures may be
required. The Court does not conclude that this rises to the level
of material impairment, unreasonable interference or
irreconcilable conflict. Insofar as the changed public right of way
is affected by the Duke easement by additional traffic control
measures, these factors are considerations by the City in
determining whether to change the public right-of-way.
….
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47. In determining that the proposed intersection would
not interfere with Duke’s ability to repair or to maintain [its]
transmission lines, the Court notes that no evidence was
submitted of the frequency or length of time required for repairs
or maintenance. No evidence was submitted that repairs had
ever been performed in proximity to pole 825-4181. Based upon
deterioration of physical equipment over time and technological
change, it is reasonable to assume that repairs are required. No
evidence was presented as to the frequency of repairs or
maintenance except for it being an eventual possibility. Evidence
was not presented as to the length of time to conduct repairs.
The most likely maintenance required was the replacement of the
pole. The pole on Madison Avenue in Greenwood was replaced
during a night time project.
….
53. The appropriate standard for a preliminary injunction
is that “the moving party must demonstrate by a preponderance
of the evidence: (1) a reasonable likelihood of success at trial; (2)
the remedies at law are inadequate; (3) the threatened injury to
the movant outweighs the potential harm to the nonmoving party
from the granting of an injunction; and (4) the public interest
would not be disserved by granting the requested injunction.
(Citations omitted).” Central Indiana Podiatry, P.C. v. Krueger,
882 N.E.2d 723, 727 (Ind. 2008).
54. For the reasons hereinabove set forth, the Court does
not find that Duke has established a reasonable likelihood of
success at trial.
IT IS THEREFORE ORDERED BY THE COURT, That
the Plaintiff’s Motion for Preliminary Injunction is DENIED.
Order pp. 2-5, 8-13, 21-22, 23-24, 25, 26-27.
Discussion and Decision
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[6] “The grant or denial of a preliminary injunction rests within the sound
discretion of the trial court, and our review is limited to whether there was a
clear abuse of that discretion.” Ind. Fam. & Soc. Servs. Admin. v. Walgreen Co.,
769 N.E.2d 158, 161 (Ind. 2002) (citing Harvest Ins. Agency, Inc. v. Inter-Ocean Ins.
Co., 492 N.E.2d 686, 688 (Ind. 1986)).
When determining whether or not to grant a preliminary
injunction, the trial court is required to make special findings of
fact and state its conclusions thereon. Ind. Trial Rule 52(A).
When findings and conclusions are made, the reviewing court
must determine if the trial court’s findings support the judgment.
The trial court’s judgment will be reversed only when clearly
erroneous. Findings of fact are clearly erroneous when the
record lacks evidence or reasonable inferences from the evidence
to support them.
Hydraulic Exch. & Repair, Inc. v. KM Specialty Pumps, Inc., 690 N.E.2d 782, 785
(Ind. Ct. App. 1998) (citations omitted). We also determine whether the trial
court’s conclusions are contrary to law. See Carson v. Ross, 509 N.E.2d 239, 241
(Ind. Ct. App. 1987), trans. denied. “We consider the evidence only in the light
most favorable to the judgment and construe findings together liberally in favor
of the judgment.” Hydraulic Exch. & Repair, 690 N.E.2d at 785. Although we
defer substantially to the trial court’s findings of fact, we review questions of
law de novo. Mayer v. BMR Props., Inc., 830 N.E.2d 971, 978 (Ind. Ct. App.
2005).
[7] In order to obtain injunctive relief, appellee had the burden of
showing that: 1) its remedies at law were inadequate, thus
causing irreparable harm pending resolution of the substantive
action; 2) it had at least a reasonable likelihood of success at trial
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by establishing a prima facie case; 3) its threatened injury
outweighed the potential harm to appellant resulting from the
granting of an injunction; and 4) the public interest would not be
disserved.
Harvest Ins. Agency, 492 N.E.2d at 688. “If the movant fails to prove any of
these requirements, the trial court’s grant of an injunction is an abuse of
discretion.” Ind. Fam. & Soc. Servs. Admin., 769 N.E.2d at 161.
[8] Duke makes two claims related to its contention of a reasonable likelihood of
success on the merits should the matter proceed to trial: (1) the City should not
be able to expand the Intersection because it does not have adequate property
interests in portions of the land and (2) the proposed expansion of the
Intersection unreasonably burdens its rights pursuant to the Easement.
I. Whether Duke Has Standing to Challenge the City’s
Interests to Land Involved in the Traffic Project
[9] Duke is claiming that the City may not expand the Intersection because it does
not have sufficient property rights in the land at issue. Put another way, Duke
is essentially pursuing an ejectment action against the City based on alleged
trespass. The City argues that, even if one assumes that it does not have rights
sufficient to allow it to expand the Intersection, Duke, as a mere easement
holder, may not exclude the City on that basis.
[10] It is settled law that “in a trespass claim a plaintiff must prove that he was in
possession of the land and that the defendant entered the land without right.”
Aberdeen Apts. v. Cary Campbell Realty All., Inc., 820 N.E.2d 158, 164 (Ind. Ct.
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App. 2005) (citation and quotation marks omitted), trans. denied. “We are also
mindful of the traditional rule that an action for trespass to real estate ‘cannot
be maintained for an invasion of a right of way or easement.’” Ind. Mich. Power
Co. v. Runge, 717 N.E.2d 216, 227 (Ind. Ct. App. 1999) (quoting State ex rel.
Green v. Gibson Circuit Ct., 246 Ind. 446, 449, 206 N.E.2d 135, 137 (1965)).
“‘This rule is based upon the principle that trespass actions are possessory
actions and that the right interfered with is the plaintiff’s right to the exclusive
possession of a chattel or land.’” Id. (quoting Green, 246 Ind. at 449, 206
N.E.2d at 137). Duke does not dispute that its interest in the parcels at issue is
non-possessory, nor does it argue that cases such as Indiana Michigan Power and
Green are no longer good law. Whatever defects in the City’s title may exist,
Duke may not exclude the City (or any other entity) from the Intersection or
challenge the construction of the Intersection on that basis.
II. Whether the Traffic Plan Would Unreasonably
Burden Duke’s Enjoyment of its Utility Easement
[11] The only remaining question is whether expanding the Intersection would
impose an impermissible burden on Duke’s easement rights.
Indiana cases clearly have held that the owner of an easement
possesses all rights necessarily incident to the enjoyment of the
easement, and that he may make such repairs, improvements, or
alterations as are reasonably necessary to make the grant of the
easement effectual. Board of Commissioners of Vanderburgh County
v. Joeckel, (1980) Ind. App., 407 N.E.2d 274, trans. denied; Holding
v. Indiana & Michigan Electric Co., (1980) Ind. App., 400 N.E.2d
1154; Mercurio v. Hall, (1924) 81 Ind. App. 554, 144 N.E. 248.
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Although these cases involve controversies between the
dominant and servient owners, we believe they are applicable to
the present dispute between co-owners of an easement.
The general rule appears to be that where there are several
owners in common of an easement, each owner has a right to
make reasonable repairs, alterations, and improvements to the
easement so long as such do not injuriously affect his co-owner.
Hultzen v. Witham, (1951) 146 Me. 118, 78 A.2d 342; Mehene v.
Ball, (1959) 22 Misc. 2d 577, 194 N.Y.S.2d 28; Cain v. Aspinwall-
Delafield Co., (1927) 289 Pa. 535, 137 A. 610; Stifel v. Hannan,
(1924) 95 W.Va. 617, 123 S.E. 673. Stated conversely, an owner
in common of an easement may not alter the land in such a
manner as to render the easement appreciably less convenient
and useful for one of his co-owners. Goss v. Johnson, (1976) Iowa,
243 N.W.2d 590; Big Cottonwood Tanner Ditch Co. v. Moyle, (1946)
109 Utah 213, 174 P.2d 148; 25 Am. Jur. 2d, Easements, § 88
(1966). Thus, the issues to be examined are the reasonable
necessity to the enjoyment of the easement and the injurious
effect on other co-owners, the latter being of significance because
courts have not interfered with alterations or improvements
unless it was made to appear that the objecting party would be
seriously inconvenienced in his own use of the easement.
Hultzen.
Litzelswope v. Mitchell, 451 N.E.2d 366, 369-70 (Ind. Ct. App. 1983).
[12] At the very least, the City claims a right-of-way to construct the Intersection on
the real estate at issue, which, as mentioned, is a claim Duke lacks standing to
challenge. The issues we must examine, then, are the reasonable necessity of
the Intersection to the City and the injurious effect it would have on Duke.
[13] The trial court made several findings regarding the reasonable necessity of the
expansion of the Intersection:
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(1) the Traffic Plan, of which the Intersection expansion is a part,
is designed to enhance the visual appearance of SR 44 to
entice travelers on I-65 to stop for food and lodging;
(2) the Traffic Plan is designed to slow traffic on SR 44 and
separate commercial and residential traffic in the area, which
are positive developments from an engineering and safety
standpoint;
(3) additional access points on SR 44 would reduce conflict
points for motorists;
(4) access to Scotty’s Brewhouse and Hillview County Club from
SR 44 would be more direct and faster;
(5) the Traffic Plan is designed to spur business and commercial
development on the east side of the City; and
(6) the Intersection would provide better access, via County Club
Lane, to a residential development northwest of the Hillview
Country Club.
In summary, the Intersection expansion is one part of a City effort to beautify
the SR 44 corridor on the east side, enhance motorist safety, and spur
commercial and business growth. Denying the City the ability to expand the
Intersection would prevent it from fully implementing the Traffic Plan. Taken
together, the findings support a conclusion that the Traffic Plan in general, and
the proposed expansion of the Intersection in particular, are reasonably
necessary uses of the City’s right-of-way as they relate to implementation of the
Traffic Plan.
[14] The other side of the coin is the injurious effect the expansion of the
Intersection would have on Duke. Duke’s argument in this regard focuses
primarily on its claims that any repair to or replacement of its equipment near
the Intersection would be more expensive and also more hazardous to its
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employees were the Intersection to be expanded. The trial court made the
following findings related to Duke’s claims:
(1) no evidence was submitted of any repair or maintenance that
had been done to pole 825-4181 or any nearby equipment;
(2) Duke had in the past, when warranted, closed roadways
temporarily in order to perform maintenance, a practice to
which the City has no objections;
(3) should pole 825-4181 have to be replaced at some point,
Country Club Lane and Longest Drive, but not SR 44, would
have to be closed;
(4) replacement of pole 825-4181 would, however, require
closure of access from the Intersection to SR 44 if the
Intersection were expanded;
(5) the Manager of Transmission for Duke testified that traffic
management of the expanded Intersection could require
directional signs and personnel but did not render a specific
opinion on how the proposed expansion would change traffic
control;
(6) working at night, Duke replaced an electrical pole in
Greenwood which required the closure of Madison Avenue, a
major arterial roadway, a procedure that did not endanger
repair crews; and
(7) the location of a proposed bicycle and pedestrian trail would
not be close enough to pole 825-4181 to be a safety risk.
[15] Based on the above findings, the trial court concluded that Duke’s ability to
repair and maintain its transmission lines would not be affected by expansion of
the Intersection. The trial court noted that the most likely maintenance would
be replacement of pole 825-4181, which would require closing the entire
Intersection whether or not it was connected to SR 44. The trial court also
noted that Country Club Lane served Hillview Country Club and Scotty’s
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Brewhouse, both businesses with set hours, meaning that maintenance could be
scheduled when both were closed and traffic in the area was diminished. The
trial court concluded that Duke’s ability to maintain its property in its easement
would be unaffected with the possible exception that some additional traffic
control measures may be required. The record, however, contains no solid
evidence on the additional costs or risks of temporarily closing a four-way
intersection as opposed to a three-way.
[16] Under the circumstances of this case, we cannot say that the trial court’s
conclusion amounts to an abuse of discretion. On the whole, the trial court’s
findings, which were all supported by evidence in the record, were more than
enough to support a conclusion that the reasonable necessity of the
Intersection’s expansion outweighed whatever injurious effect that expansion
would have on Duke’s enjoyment of its easement. Because the trial court did
not abuse its discretion in concluding that Duke did not establish a reasonable
likelihood of success at trial, it also did not abuse its discretion in denying its
request for a preliminary injunction.
Conclusion
[17] We conclude that Duke, as a mere utility-easement holder, lacks standing to
maintain an ejectment action against the City on the basis that the City does not
have sufficient property rights to expand the Intersection. Moreover, we
conclude that the trial court did not abuse its discretion in determining that
Duke failed to show a reasonable likelihood of success at trial. Consequently,
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the trial court did not abuse its discretion in denying Duke’s request for a
preliminary injunction against the City.
[18] We affirm the judgment of the trial court.
Pyle, J., and Altice, J. concur.
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