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.




Court of Appeals of Indiana|Memorandum Decision 19A-MI-2774, 2783, 2786, 2795| April 22, 2020 Page 1 of 8
                                              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

      Court of Appeals of Indiana|Memorandum Decision 19A-MI-2774, 2783, 2786, 2795| April 22, 2020 Page 2 of 8
              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

      Court of Appeals of Indiana|Memorandum Decision 19A-MI-2774, 2783, 2786, 2795| April 22, 2020 Page 3 of 8
               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.

      Court of Appeals of Indiana|Memorandum Decision 19A-MI-2774, 2783, 2786, 2795| April 22, 2020 Page 4 of 8
      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 ….

      Court of Appeals of Indiana|Memorandum Decision 19A-MI-2774, 2783, 2786, 2795| April 22, 2020 Page 5 of 8
      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.

      Court of Appeals of Indiana|Memorandum Decision 19A-MI-2774, 2783, 2786, 2795| April 22, 2020 Page 6 of 8
      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.

      Court of Appeals of Indiana|Memorandum Decision 19A-MI-2774, 2783, 2786, 2795| April 22, 2020 Page 7 of 8
[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.

       Court of Appeals of Indiana|Memorandum Decision 19A-MI-2774, 2783, 2786, 2795| April 22, 2020 Page 8 of 8
