                                                                  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.




Court of Appeals of Indiana | Opinion 41A01-1607-CT-1549 |December 16, 2016           Page 1 of 24
                                           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.




      Court of Appeals of Indiana | Opinion 41A01-1607-CT-1549 |December 16, 2016   Page 2 of 24
[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.




      Court of Appeals of Indiana | Opinion 41A01-1607-CT-1549 |December 16, 2016   Page 3 of 24
[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

      Court of Appeals of Indiana | Opinion 41A01-1607-CT-1549 |December 16, 2016   Page 4 of 24
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

Court of Appeals of Indiana | Opinion 41A01-1607-CT-1549 |December 16, 2016   Page 5 of 24
        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.



Court of Appeals of Indiana | Opinion 41A01-1607-CT-1549 |December 16, 2016   Page 6 of 24
               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

Court of Appeals of Indiana | Opinion 41A01-1607-CT-1549 |December 16, 2016   Page 7 of 24
        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

Court of Appeals of Indiana | Opinion 41A01-1607-CT-1549 |December 16, 2016   Page 8 of 24
        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

Court of Appeals of Indiana | Opinion 41A01-1607-CT-1549 |December 16, 2016   Page 9 of 24
        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

Court of Appeals of Indiana | Opinion 41A01-1607-CT-1549 |December 16, 2016   Page 10 of 24
                 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

Court of Appeals of Indiana | Opinion 41A01-1607-CT-1549 |December 16, 2016     Page 11 of 24
        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.

Court of Appeals of Indiana | Opinion 41A01-1607-CT-1549 |December 16, 2016   Page 12 of 24
               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

Court of Appeals of Indiana | Opinion 41A01-1607-CT-1549 |December 16, 2016   Page 13 of 24
        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)).



Court of Appeals of Indiana | Opinion 41A01-1607-CT-1549 |December 16, 2016   Page 14 of 24
               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.
                 ….

Court of Appeals of Indiana | Opinion 41A01-1607-CT-1549 |December 16, 2016   Page 15 of 24
               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


Court of Appeals of Indiana | Opinion 41A01-1607-CT-1549 |December 16, 2016   Page 16 of 24
[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

      Court of Appeals of Indiana | Opinion 41A01-1607-CT-1549 |December 16, 2016   Page 17 of 24
               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.


       Court of Appeals of Indiana | Opinion 41A01-1607-CT-1549 |December 16, 2016   Page 18 of 24
       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.

       Court of Appeals of Indiana | Opinion 41A01-1607-CT-1549 |December 16, 2016   Page 19 of 24
               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:


       Court of Appeals of Indiana | Opinion 41A01-1607-CT-1549 |December 16, 2016   Page 20 of 24
               (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
       Court of Appeals of Indiana | Opinion 41A01-1607-CT-1549 |December 16, 2016   Page 21 of 24
       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
       Court of Appeals of Indiana | Opinion 41A01-1607-CT-1549 |December 16, 2016   Page 22 of 24
       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,

       Court of Appeals of Indiana | Opinion 41A01-1607-CT-1549 |December 16, 2016   Page 23 of 24
       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.




       Court of Appeals of Indiana | Opinion 41A01-1607-CT-1549 |December 16, 2016   Page 24 of 24
