Bradley SurVance v. Duke Energy Indiana, LLC (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 22 2020, 8:40 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Glen E. Koch, II Yasmin L. Stump
Boren, Oliver & Coffey, LLP Christopher A. Ferguson
Martinsville, Indiana Yasmin L. Stump Law Group, PC
Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bradley SurVance, April 22, 2020
Appellant-Defendant, Court of Appeals Case Nos.
19A-MI-2774, 2783, 2786, 2795
v. Appeal from the Martin Circuit
Court
Duke Energy Indiana, LLC, The Honorable Lynne E. Ellis, Judge
Appellee-Plaintiff The Honorable Larry R. Blanton,
Senior Judge
Trial Court Cause Nos.
51C01-1903-MI-87, -88, -90, -91
Crone, Judge.
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Case Summary
[1] Duke Energy Indiana, LLC, filed condemnation complaints against Bradley
SurVance to amend and release portions of an existing easement on his
property so that it can better operate and maintain an electric transmission line.
SurVance filed objections to the complaints, which the trial court overruled.
On appeal, SurVance argues that this was error. We affirm.
Facts and Procedural History
[2] SurVance owns several adjoining tracts in Martin County that are subject to an
express easement, granted by a prior owner, for a Duke Energy electric
transmission line. In March 2019, Duke Energy filed four condemnation
complaints against SurVance to amend and release portions of the easement.
The complaints read as follows:
3. In connection with Duke Energy’s public utility business, it is
necessary that Duke Energy amend its existing easement across
[SurVance’s] Real Estate … for its … transmission line. This
amended easement is necessary for the continued safety and
reliability of electrical service in this area. The amended
easement will allow Duke Energy to true up its easement interest
with the as-built transmission line to establish an easement width
of fifty (50) feet on either side of the as-built transmission line
eliminating significant vegetation encroachments adjacent to the
transmission line …. Although Duke Energy has an existing
easement across [SurVance’s] Real Estate, upon information and
belief, the transmission line was not centered in the easement
when it was built in the 1950s due to the terrain. As a result,
access to the transmission line for construction, operation,
maintenance and vegetation clearance is too narrow in some
places and too wide in others. Where the existing easement is
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too narrow, encroaching vegetation creates safety and reliability
issues for the transmission line and interferes with Duke Energy’s
ability to safely and adequately construct, operate and maintain
its facilities.
4. Duke Energy has a present public need and necessity to
condemn an amended easement interest for the overhead electric
line facilities described above ….
….
7. With the condemnation of the real estate described …, Duke
Energy will release those portions of the existing easement that
are no longer needed.…
8. In addition to the Amendment of Easement …, it is necessary
for Duke Energy to acquire by condemnation a right of ingress
and egress to and from the Easement Area across [SurVance’s]
Real Estate which adjoins the Easement Area ….
9. Pursuant to IC §[§] 32-24-1-3 and -4, Duke Energy has made
an effort to purchase the aforesaid Easement Area and Access
Easement interest from [SurVance], and Duke Energy has been
unable to agree with [SurVance] for the purchase of the same.
Appellant’s App. Vol. 2 at 49-51.
[3] SurVance filed objections to the complaints that read as follows:
2. The current line, which runs across the existing easement,
services one customer [i.e., a U.S. Gypsum manufacturing plant].
The location of the property is not part of Duke Energy’s service
area, and no other individuals are allowed to hook onto the
service line, as it is purely dedicated for one private company.
3. …. [Duke Energy] has requested an ingress egress easement
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so that it can access the easement area for maintenance. A
separate ingress egress easement is not necessary in this case for
maintenance as [Duke Energy] currently has a legal existing
easement in which it can travel over in order to perform
maintenance on the current easement area. Further, [Duke
Energy] has arbitrarily picked a certain area in which [it] wishes
the easement to be located.…
4. …. It is impossible to determine the exact width of the
easement area which [Duke Energy] wishes to have the Court
establish, because although the wording does say twenty-five (25)
feet on each side of the center line of the easement, the language
concerning the right to remove obstructions on adjacent land
clearly shows that [Duke Energy] intends to exercise control over
an area greater than its easement area.
Id. at 126-27.
[4] The trial court consolidated the cases and held a hearing, at which SurVance
presented no evidence. The trial court summarily denied SurVance’s objections
and appointed appraisers “to assess the total amount of just compensation due
as a result of [Duke Energy’s] acquisition and release” of the easements.
Appealed Orders at 3. SurVance now appeals. 1
Discussion and Decision
[5] Article 1, Section 21 of the Indiana Constitution provides, “No person’s
property shall be taken by law, without just compensation; nor, except in case
1
After SurVance filed his notice of appeal, the trial court rescinded its consolidation order. Neither party
suggests that this has any bearing on our consideration of this appeal.
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of the State, without such compensation first assessed and tendered.” Duke
Energy is a public utility that has the right to exercise the power of eminent
domain via condemnation proceedings. See Wymberley Sanitary Works v.
Batliner, 904 N.E.2d 326, 333 (Ind. Ct. App. 2009) (citing Ind. Code § 8-1-8-1),
trans. denied. 2 Condemnation proceedings involve two stages: an initial or
summary phase, in which a complaint is filed and the landowner files
objections thereto, and a second phase in which the landowner’s damages are
determined. City of Hammond v. Marina Entertainment Complex, Inc., 733 N.E.2d
958, 966 (Ind. Ct. App. 2000), trans. denied (2001). We are concerned only with
the first phase here.
[6] To exercise the eminent domain power, “the condemning authority must
establish, among other things, that it made the statutorily required offer to
purchase the property interest, that the proposed taking is needed for a public
purpose, and that there is a current need for the taking[.]” Wymberley, 904
N.E.2d at 333 (citing Ind. Code § 32-24-1-3 and Ind. & Mich. Elec. Co. v. Harlan,
504 N.E.2d 301, 306 (Ind. Ct. App. 1987)). The necessity of a taking is
presumed, need not be pled by the condemning authority, and can be disproved
only by the landowner’s production of evidence of fraud, capriciousness, or
2
Indiana Code Section 8-1-8-1(a) provides,
A public utility … engaged in the production, transmission, delivery, or furnishing of … power
… to towns and cities and to the public in general …, for the purpose of enabling it to perform
its functions, may appropriate and condemn lands of individuals and private corporations, or
any easement in any lands, necessary to the carrying out of its objects, whether the same be for
its … line of poles [or] wires ….
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illegality on the authority’s part. State v. Collom, 720 N.E.2d 737, 741-42 (Ind.
Ct. App. 1999). “The condemning authority’s exercise of its power may not be
prevented unless a clear abuse of discretion is shown.” Ellis v. Pub. Serv. Co. of
Ind., Inc., 168 Ind. App. 269, 272, 342 N.E.2d 921, 923 (1976).
[7] SurVance has failed to make such a showing here. He raises four arguments,
the first of which is that the taking is not for a public purpose because the
transmission line serves, and is only allowed to serve, one customer, U.S.
Gypsum. SurVance seizes on the following language from Continental
Enterprises, Inc. v. Cain: “The test whether a use is public or not is whether a
public trust is imposed upon the property, whether the public has a legal right to
the use, which cannot be gainsaid, or denied, or withdrawn at the pleasure of
the owner.” 180 Ind. App. 106, 112, 387 N.E.2d 86, 91 (1979) (citation
omitted). In Continental, a private company sought to condemn an easement for
the purpose of more easily accessing its property, from which it could exclude
members of the public; accordingly, this Court held that the easement was not a
public use. Here, Duke Energy is a public utility that has legislative
authorization to condemn easements “to accomplish the essential delivery” of
electricity “to the public or to any town or city[.]” Ind. Code §§ 32-24-4-1(a), -
2; see also Ind. Code § 8-1-8-1(a). U.S. Gypsum is a commercial member of the
public 3 and has a legal right to use that electricity, which cannot be withdrawn
3
At the hearing, the trial court noted that U.S. Gypsum “supplies hundreds of jobs to the people in Martin
County and the surrounding area.” Tr. Vol. 2 at 32.
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at the pleasure of Duke Energy. In sum, Duke Energy’s taking passes the
public-purpose test. 4
[8] Second, SurVance argues that the taking is improper because it is unnecessary.
“[T]he question of necessity is, for the most part, to be determined by the
condemning utility itself.” Ellis, 168 Ind. App. at 271, 342 N.E.2d at 923.
Necessity “is not limited to absolute or indispensable needs of the utility, but
means that which is reasonably proper and useful for the purpose sought.” Id.,
342 N.E.2d at 923. Here, Duke Energy’s purpose in centering its easement is to
be able to more effectively and efficiently operate and maintain the transmission
line; our Court has held that in taking property to increase the reliability of its
electrical system, a utility does not “exceed the authority delegated to it by the
Legislature.” J.M. Foster Co. v. N. Ind. Pub. Serv. Co., 164 Ind. App. 72, 83, 326
N.E.2d 584, 591 (1975). More specifically, SurVance complains that Duke
Energy seeks to obtain an easement over “a roadway which is totally outside of
the power transmission easement” and that “since 1954, the [line has] been
utilized without the need for any roadway.” Appellant’s Br. at 11-12. 5 But that
does not mean that the roadway is not reasonably proper and useful now, and
SurVance presented no contrary evidence at the hearing.
4
SurVance also complains that the transmission line is outside Duke Energy’s normal service area, but he
fails to explain how this renders the condemnation illegal.
5
Duke Energy contends that SurVance did not raise this argument in his objections and therefore has waived
it on appeal. We think that the argument is encompassed by paragraph 3 of his objections.
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[9] Third, SurVance claims that the route of the easement is arbitrary, 6 but he offers
nothing to support this bald assertion. It is undisputed that Duke Energy’s
taking will center its easement on either side of the transmission line, which will
allow for more effective and efficient operation and maintenance. That can
hardly be considered arbitrary. Cf. Wymberley, 904 N.E.2d at 337 (“It is the
utility, rather than the trial court, which is best situated to weigh the risks and
benefits of the location of its lines, which is why the law defers substantially to
utilities’ choice of route in these cases.”).
[10] Fourth, and finally, SurVance claims that the easement is impermissibly vague
because “[i]t is impossible to determine the exact width of the … area” that
Duke Energy seeks to claim for controlling vegetation on either side of the
transmission line. Appellant’s Br. at 13. We disagree. Duke Energy points out
that “the description for [its] permanent vegetation management easements is
specifically identified as ‘25 feet on either side of the easement area.’”
Appellee’s Br. at 12 (quoting Appellant’s App. Vol. 2 at 97). SurVance has
failed to establish any abuse of discretion, and therefore we affirm.
[11] Affirmed.
Bailey, J., and Altice, J., concur.
6
SurVance also claims that Duke Energy’s need for the easement is arbitrary, which is simply another way of
saying that the easement is unnecessary.
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