                                                                                FILED
                                                                            Feb 05 2020, 7:32 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Darren A. Craig                                             C. Gregory Fifer
      Maggie L. Smith                                             F. Bradley Benson
      Frost Brown Todd LLC                                        Applegate Fifer Pulliam LLC
      Indianapolis, Indiana                                       Jeffersonville, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Duke Energy Indiana, LLC,                                   February 5, 2020
      Appellant-Defendant,                                        Court of Appeals Case No.
                                                                  19A-PL-735
              v.                                                  Appeal from the
                                                                  Clark Circuit Court
      J & J Development Company,                                  The Honorable
      LLC,                                                        Vicki L. Carmichael, Judge
      Appellee-Plaintiff                                          Trial Court Cause No.
                                                                  10C01-1508-PL-91



      Vaidik, Judge.



                                            Case Summary
[1]   J & J Development Company, LLC (“J & J”) purchased a piece of land with

      the intent of developing a residential subdivision. Duke Energy Indiana, LLC

      (“Duke”) owns an electric-transmission-line easement over the land, and J & J


      Court of Appeals of Indiana | Opinion 19A-PL-735 | February 5, 2020                           Page 1 of 23
      has constructed certain improvements within the easement. Duke

      acknowledges that J & J is allowed to make some use of the land within the

      easement but contends that the improvements at issue unreasonably interfere

      with Duke’s use of the easement. The trial court disagreed and granted

      summary judgment in favor of J & J. Duke appeals, and we reverse.1



                             Facts and Procedural History
[2]   This appeal concerns land in rural Clark County, along State Road 60 near

      Sellersburg. At some point J & J became interested in acquiring the land for

      purposes of developing a residential subdivision called “The Plains of Millan.”

      Since 1956, Duke or its predecessors have owned a 300-foot-wide electric-

      transmission-line easement (“Easement”) over the land. The granting

      instrument provides, in relevant part, as follows:


                       ELECTRIC TRANSMISSION LINE EASEMENT


                                             *        *        *       *


              Grantors, in consideration of the sum of Ten Dollars ($10.00)
              and other valuable considerations in hand paid to said Grantors,
              hereby grant unto Public Service Company of Indiana, Inc., an
              Indiana corporation, and its successors and assigns, Grantee, the
              perpetual right, privilege, easement and authority to enter upon
              the real estate hereinafter described and, now or in the future,



      1
        We held oral argument in the Court of Appeals courtroom on December 19, 2019. We thank counsel for
      their helpful presentations.

      Court of Appeals of Indiana | Opinion 19A-PL-735 | February 5, 2020                        Page 2 of 23
        there to construct, erect, maintain, operate, inspect, patrol,
        repair, replace, extend, renew and/or remove two (2) lines of
        metal towers supporting one or more electric transmission lines
        and one (1) line of wood poles or wood-pole structures
        supporting one or more electric transmission lines, together with
        the anchors, guys, wires, conductors, cables, insulators,
        appurtenances, and other appliances, fixtures and apparatus
        attached thereto, for the supply, transmission, distribution
        and/or delivery of electrical energy to the public in general, for
        light, heat, power, telephone and/or other purposes:


                                 [property description omitted]


        In constructing said lines, Grantee shall have the right to
        determine the exact location in said real estate where the
        supporting towers or poles of each of said lines are to be located;
        to erect, construct and maintain the necessary substructures for
        said towers or poles; and to mount upon and string between said
        towers, structures or poles the wires, cables, conductors, cross-
        arms, insulators, transformers, lightning arresters, disconnect
        switches, and other apparatus and equipment comprising, or
        reasonably appurtenant to, said electric transmission lines.


        The Grantors reserve the use of the above described land not
        inconsistent with this grant, with the right to extend fences across
        the same. The Grantee shall not fence said land, but may put
        gates in any fences now or hereafter built thereon by the
        Grantors. Access to the above described land by way of
        established roads, lanes or driveways is hereby given. The
        Grantee may at any and all times trim, retrim, cut down or
        remove, without further payment, trees, bushes, saplings or other
        obstructions upon or extending over said land, so far as may
        reasonably be necessary in the construction, operation and
        maintenance of said lines.



Court of Appeals of Indiana | Opinion 19A-PL-735 | February 5, 2020           Page 3 of 23
              The Grantee shall and will indemnify and save the Grantors
              harmless from and against any and all damages, injuries, losses,
              claims, demands or costs proximately caused by the fault,
              culpability, or negligence of the Grantee in the construction,
              erection, maintenance, operation, repair or removal of said
              electric transmission lines and the structures and appurtenances
              connected therewith.


              Any damages to the crops, fences, gates, drains, ditches or
              buildings of the Grantors done by the Grantee in the erection,
              repair, replacement or renewal of said towers, poles, wires, cables
              or equipment, shall be promptly repaired, replaced or paid for by
              the Grantee, provided a claim therefore is presented with the
              Grantee at its General Office within thirty (30) days after such
              damages occur.


      Appellant’s App. Vol. V pp. 28-29.2


[3]   According to Duke (and undisputed by J & J), the Easement is part of a greater

      transmission corridor, and the transmission lines that run through the Easement

      play an important role in providing electricity to the area:


              The transmission corridor contains two parallel lines of steel
              towers. One set of towers contains a six-wire uninsulated
              138,000-volt (138 kV) circuit, while the other contains one
              345,000-volt (345 kV) circuit.


                                             *        *        *        *




      2
       Duke says that a second granting instrument may be involved, but its language is almost identical to that
      quoted above. See Appellant’s App. Vol. III pp. 120-21.

      Court of Appeals of Indiana | Opinion 19A-PL-735 | February 5, 2020                              Page 4 of 23
              The 138 kV and 345 kV circuits in [Duke’s] transmission corridor
              form part of the Bulk Electric System. The 345 kV circuit
              interconnects to Louisville Gas and Electric Company’s Ghent
              and Trimble stations. An outage on that circuit can have a
              significant impact on the Louisville area. The 138 kV circuit
              feeds several New Albany substations and supports the
              Clarksville/Speed area if the 345 kV line is affected. Power
              carried on transmission lines is stepped down (reduced) at
              substations and carried on distribution lines at a lower voltage to
              customers.


              Within approximately 100 yards of the Plains of Millan entrance,
              the 138 kV transmission lines feed the Hoosier Energy St. Joseph
              substation, which serves Hoosier Energy customers. The
              transmission lines that feed the Hoosier Energy substation feed
              into it “radially,” meaning that the substation is fed by only those
              lines. Therefore, an occurrence or outage at or near what became
              the only entrance to Plains of Millan may impact a significant
              number of residential and business customers.


      Appellant’s Br. pp. 12, 14-15.


[4]   In 2013 and 2014, J & J hired a surveyor to prepare a plat for The Plains of

      Millan, sought and received plat approval from the Clark County Plan

      Commission, and then purchased the land—all without contacting Duke.

      Then, in 2015, J & J constructed certain improvements within the Easement: an

      entrance from State Road 60 (the only entrance to the planned neighborhood);

      a road with curbs (Palermo Street) running parallel to and largely within the

      Easement; detention basins (in which water ponds temporarily after rain); a fire

      hydrant; and buried utility lines. The following drawing shows the area at



      Court of Appeals of Indiana | Opinion 19A-PL-735 | February 5, 2020       Page 5 of 23
issue, including the boundaries of the Easement and the locations of the electric

towers and wires:




Court of Appeals of Indiana | Opinion 19A-PL-735 | February 5, 2020     Page 6 of 23
Court of Appeals of Indiana | Opinion 19A-PL-735 | February 5, 2020   Page 7 of 23
      Again, J & J did not discuss the improvements with Duke before constructing

      them. J & J first contacted Duke about the project in July 2015, in relation to

      sewer work it wanted to do. Duke then inspected the improvements, concluded

      that they impermissibly encroach upon the Easement, and told J & J that they

      needed to be removed.


[5]   Soon thereafter, J & J filed suit against Duke, seeking a declaration that its

      improvements do not unreasonably interfere with Duke’s use of the Easement,

      among other relief. Duke filed a counterclaim, requesting a declaration that J &

      J’s improvements are impermissible and an injunction requiring J & J to

      remove them and to refrain from constructing additional encroachments. On a

      motion for partial summary judgment by J & J, the trial court ruled that the

      improvements are permissible and granted declaratory relief in J & J’s favor.

      Duke appealed, and we reversed, concluding that the trial court “made

      credibility determinations involving issues that were in dispute,” which is

      improper at the summary-judgment stage. Duke Energy Ind., LLC v. J & J Dev.

      Co., No. 10A04-1605-PL-1084, 2018 WL 1528546 *5 (Ind. Ct. App. Mar. 29,

      2018).


[6]   On remand, the parties filed new cross-motions for summary judgment. The

      trial court again concluded that the challenged improvements are permissible,

      granted J & J’s motion for summary judgment on the parties’ competing claims

      for declaratory and injunctive relief, and denied Duke’s motion for summary

      judgment.



      Court of Appeals of Indiana | Opinion 19A-PL-735 | February 5, 2020       Page 8 of 23
[7]    Duke now appeals.



                                   Discussion and Decision
[8]    Duke contends that the trial court should have granted summary judgment to it

       instead of J & J. We review motions for summary judgment de novo, applying

       the same standard as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003

       (Ind. 2014). That is, “The judgment sought shall be rendered forthwith if the

       designated evidentiary matter shows that there is no genuine issue as to any

       material fact and that the moving party is entitled to a judgment as a matter of

       law.” Ind. Trial Rule 56(C).


[9]    At the outset, the parties agree on two key points: (1) the language of the

       easement instrument is unambiguous and (2) the claims for declaratory and

       injunctive relief should be resolved on summary judgment, not in a trial. They

       ask us to review the facts in light of the easement language and Indiana

       easement law and decide which party is entitled to summary judgment.


[10]   Another matter is not in dispute: J & J is entitled to make some use of the land

       within the Easement. As set forth above, the instrument in which J & J’s

       predecessors granted the Easement to Duke’s predecessor provides that “[t]he

       Grantors reserve the use of the above described land not inconsistent with this

       grant[.]” And Indiana law is clear that the owner of land subject to an

       easement (the servient estate) can use the property within the easement in any

       manner that does not unreasonably interfere with the use of the easement by the


       Court of Appeals of Indiana | Opinion 19A-PL-735 | February 5, 2020       Page 9 of 23
       easement owner (the dominant estate). Howard v. United States, 964 N.E.2d 779,

       781 (Ind. 2012); Rehl v. Billetz, 963 N.E.2d 1, 6-7 (Ind. Ct. App. 2012); see also

       Restatement (Third) of Property (Servitudes) § 4.9 (2000) (“Except as limited by

       the terms of the servitude determined under § 4.1, the holder of the servient

       estate is entitled to make any use of the servient estate that does not

       unreasonably interfere with enjoyment of the servitude.”). The only issue here,

       then, is whether J & J’s improvements unreasonably interfere with Duke’s use

       of the Easement. We hold that they do.


                                I. Duke’s Designated Evidence
[11]   We begin by setting forth the designated evidence cited by Duke. Duke

       provides the following background, with no dispute from J & J:


               [Duke] acquires easements at the request of its transmission
               planning and engineering groups to secure the land rights needed
               to operate, maintain, repair, and replace electric transmission
               facilities. [Duke] obtains enough easement space to allow it to
               bring in large and multiple pieces of equipment to either install,
               replace, or repair its lines, locate the electric facilities and to enter
               and stage the equipment in the easement with minimal
               interference with surrounding property owners.


               [Duke’s] obligation is to provide reliable and safe electric service.
               It is regulated by the Indiana Utility Regulatory Commission
               (“IURC”), and in the case of transmission lines, by the North
               American Electric Reliability Corporation (“NERC”) and the
               Federal Energy Regulatory Commission (“FERC”), to which it
               must provide reports [] concerning the length of power outages.
               Penalties may be assessed for failing to restore power quickly, so
               [Duke] must have quick, safe, and unobstructed access to repair,

       Court of Appeals of Indiana | Opinion 19A-PL-735 | February 5, 2020            Page 10 of 23
               replace, or upgrade its facilities. Likewise, [Duke] is under a
               regulatory obligation to minimize the costs of repairs to easement
               property. Damage to structures or improvements in the
               easements increases the costs of services for all customers.


                                              *        *        *       *


               [Duke] emphasizes and constantly works to ensure the safety of
               its customers, employees, and the public. [Duke] has studied
               how most safely to work on its facilities in easements, road
               rights-of-way, and in other locations, and how that work might
               affect employees and the public. As part of that process and over
               the course of years, [Duke] has learned not only how much
               easement space is needed to support its transmission facilities,
               but also how to work in that space effectively. [Duke] has also
               learned how structures and other developments in easements
               interfere with and present challenges to operating, maintaining,
               repairing, and replacing electric transmission facilities.


       Appellant’s Br. pp. 9, 15 (citations omitted).


[12]   Against that backdrop, Duke addresses the specific improvements at issue.

       Duke first notes that the sole entrance to The Plains of Millan neighborhood

       lies within the Easement and that, as such, it will be blocked, possibly entirely

       and for a lengthy period, when Duke does work in that area. Homeowners

       would be prevented from entering or leaving the neighborhood, and emergency

       vehicles would be delayed getting in and out of the neighborhood. Duke’s work

       would be substantially more difficult if residents require access at the same

       place Duke is working or staging its work, requiring Duke to rearrange its

       equipment and personnel. If Duke needs to block the intersection, it will not be


       Court of Appeals of Indiana | Opinion 19A-PL-735 | February 5, 2020      Page 11 of 23
       possible to reroute traffic to permit access to the neighborhood without

       disrupting Duke’s work. While it is possible for Duke to stop and move

       equipment, it is not possible to do so repeatedly or, sometimes, quickly.

       Stopping and moving cannot be done until work can be safely suspended and

       equipment and workers safely moved.


[13]   Moreover, buried utilities, roads, and detention basins within the Easement can

       impede, and in some cases prevent, Duke from accessing part of its

       transmission corridor and facilities. Utilities should be run through easements

       as close to a perpendicular angle as possible, rather than in parallel, to prevent

       crushing them or creating water or gas emergencies. Repairs to the

       transmission facilities near The Plains of Millan would require the use of

       equipment weighing thousands of pounds. Repairs to the 138 kV circuits

       require bucket trucks, line trucks, and track equipment for off-road use. Repairs

       to the 345 kV circuits and towers typically require use of a boom truck,

       bulldozer, 125-foot track bucket truck, l00-foot bucket truck, two 93-foot bucket

       trucks, and a 4065 digger derrick. Duke may also need pressure-digger

       equipment and tri-axle dump trucks to perform excavation work. While the

       possibility of damaging utilities cannot be avoided entirely, utilities that cross

       easements at angles greater than thirty degrees are less invasive than if they run

       in parallel through the easements. Underground gas lines that run in parallel

       down an electric-transmission easement are more likely to suffer damage and, if

       not turned off, can create a dangerous situation. Likewise, where a road runs




       Court of Appeals of Indiana | Opinion 19A-PL-735 | February 5, 2020       Page 12 of 23
       across an easement, rather than parallel to it, Duke has more flexibility in

       placing replacement poles and appurtenances and staging vehicles.


[14]   Among other things, easements are meant to ensure sufficient space to do repair

       work and install temporary facilities to restore electric service. Outages

       necessitate repairs and sometimes replacements, which may require temporary

       facilities that are spaced and placed differently from towers. Likewise,

       maintenance and replacement of aged facilities require substantial equipment

       and materials. The towers supporting the 138 kV circuit were installed in 1957,

       and the towers supporting the 345 kV lines were installed in 1978. When Duke

       needs to replace the tower closest to State Road 60, temporary wooden

       replacement structures will probably need to be placed in one of the detention

       basins J & J built or on Palermo Street. The presence of the road and the

       detention basins within the Easement can impair Duke’s ability to place

       temporary structures at appropriate places.


[15]   The equipment needed to do replacement work and upgrades typically comes in

       from both sides of an easement, so the ability to use the full Easement is

       imperative. Even a simpler repair, such as a middle splice, is more

       complicated, dangerous, and costly if the equipment cannot reach the lines

       effectively because of obstructions. Obstructions force Duke to work across a

       live set of lines and, therefore, require that those lines are taken out of service.

       Obstructions can make a simple splice of a line impossible (if, for example, a

       detention basin is directly under the splice area), necessitating a line

       replacement, which is costlier and takes more time.

       Court of Appeals of Indiana | Opinion 19A-PL-735 | February 5, 2020         Page 13 of 23
[16]   Finally, fire hydrants located within easements create safety hazards. Because

       Duke uses very large equipment to build and maintain electric-transmission

       facilities there is a significant risk that fire hydrants will be damaged or ruptured

       during such work. If a fire hydrant is damaged near work on electric-

       transmission facilities, water can be released in a high-pressure arc and create

       an energized water flow.3


                                          II. J & J’s Responses
[17]   J & J offers a variety of responses to Duke’s claim of unreasonable interference,

       but they do not overcome Duke’s designated evidence. J & J spends much of

       its brief taking issue with a Duke document entitled “Electric Transmission

       Right-of-Way Guidelines/Restrictions Valid for Ohio, Indiana and Kentucky.”

       The document, which Duke sent to J & J after learning about J & J’s

       improvements, begins by explaining, “This list of right-of-way restrictions has

       been developed to answer the most frequently asked questions about property

       owner use of Duke Energy’s electric transmission rights of way.” Appellant’s

       App. Vol. III p. 40. The “restrictions” include the following: (1) structures,

       buildings, and other improvements “which in Duke Energy’s opinion interfere

       with the electric transmission right of way are not allowed within the right-of

       way limits”; (2) streets and utility lines “shall not parallel the centerline within

       the right of way but may cross, from one side to the other, at any angle not less




       3
        In its opening brief, Duke also makes passing reference to “slope changes,” Appellant’s Br. p. 19, but it does
       not give us further information about any such changes.

       Court of Appeals of Indiana | Opinion 19A-PL-735 | February 5, 2020                              Page 14 of 23
       than 30 degrees with the centerline”; (3) intersections “are not permitted”; and

       (4) “Any drainage feature that allows water to pond, causes erosion, directs

       stormwater toward the right of way or limits access to or around Duke Energy

       facilities is prohibited.” Id. Noting that the restrictions are not specifically set

       forth in the easement instrument, J & J contends that Duke is impermissibly

       attempting to “subject the servient estate to a greater burden than was originally

       agreed upon without the consent of the servient estate owner.” Appellee’s Br.

       pp. 26-27 (citing Harlan Bakeries, Inc. v. Muncy, 835 N.E.2d 1018 (Ind. Ct. App.

       2005)). That is not the case. Duke does not assert that its “restrictions” are

       enforceable independent of the easement instrument. Rather, it acknowledges

       that the specified “restrictions” merely represent its interpretation of the general

       restriction stated in the easement instrument: “The Grantors reserve the use of

       the above described land not inconsistent with this grant[.]” (Emphasis

       added).4


[18]   J & J also contends that its improvements do not unreasonably interfere with

       Duke’s use of the Easement because “the transmission of electricity through the

       easement has not been obstructed[.]” Appellee’s Br. p. 23; see also id. at 28

       (“The proper test as to whether removal of any of the Subdivision infrastructure

       improvements should be compelled, however, is whether they themselves




       4
        Given some of the definitive language Duke uses in the document—such as “are not allowed,” “shall not,”
       “are not permitted,” and “is prohibited”—we understand why J & J misinterpreted Duke’s position. Duke
       should reconsider such language, since it could mislead an unwitting recipient into believing that Duke’s
       “restrictions” are legally binding and not just Duke’s interpretation of the easement instrument.

       Court of Appeals of Indiana | Opinion 19A-PL-735 | February 5, 2020                          Page 15 of 23
       operate to obstruct the transmission of electricity through the easement.”). The

       problem with this argument is that, as Duke puts it, the Easement was obtained

       “not just to send electrons down conductors (wires) but to allow much more.”

       Appellant’s Reply Br. p. 8. Specifically, the easement instrument grants “the

       perpetual right, privilege, easement and authority to enter upon the real estate

       hereinafter described and, now or in the future, there to construct, erect,

       maintain, operate, inspect, patrol, repair, replace, extend, renew and/or

       remove” the wires, towers, poles, and attachments thereto. Appellant’s App.

       Vol. V p. 28 (emphasis added). In short, the purpose of the Easement extends

       far beyond the simple transmission of electricity. Duke must also be able to

       move freely within the Easement to build and maintain the infrastructure that is

       necessary for the transmission of electricity.


[19]   Regarding Duke’s need to do maintenance work, J & J points out that Duke’s

       “ability to maintain its facilities within the easement” has not, to date, been

       obstructed by J & J’s improvements. Appellee’s Br. p. 6. But as just noted, the

       easement instrument protects Duke’s ability to do necessary work “now or in

       the future[.]” (Emphasis added). The fact that J & J’s improvements have not

       yet hindered any of Duke’s work by no means establishes that they will not do

       so in the future. To the contrary, Duke designated extensive evidence that J &

       J’s improvements could seriously impair Duke’s ability to perform maintenance

       and repairs in the future.




       Court of Appeals of Indiana | Opinion 19A-PL-735 | February 5, 2020      Page 16 of 23
[20]   Next, J & J contends that the improvements cannot be said to unreasonably

       interfere with the use of the Easement given that the easement instrument

       includes the following language:


               Any damages to the crops, fences, gates, drains, ditches or
               buildings of the Grantors done by the Grantee in the erection,
               repair, replacement or renewal of said towers, poles, wires, cables
               or equipment, shall be promptly repaired, replaced or paid for by
               the Grantee, provided a claim therefore is presented with the
               Grantee at its General Office within thirty (30) days after such
               damages occur.


       Appellant’s App. Vol. V p. 29 (emphasis added). Relying on this provision, J &

       J maintains that the easement instrument “expressly contemplated” that the

       grantor/servient owner could “subsequently construct improvements, including

       without limitation, ‘crops, fences, gates, drains, ditches or buildings,’” within

       the Easement. Appellee’s Br. pp. 23, 30. That is debatable. The cited language

       does not expressly allow the grantor to “construct” crops, fences, gates, drains,

       ditches, or buildings; it addresses only “damages” to crops, fences, gates,

       drains, ditches, or buildings, which could be a reference to existing

       improvements or improvements outside the Easement. The only new

       improvements expressly contemplated by the easement instrument are fences.

       Appellant’s App. Vol. V p. 28 (“The Grantors reserve the use of the above

       described land not inconsistent with this grant, with the right to extend fences

       across the same.” (Emphasis added)). But even if we accept J & J’s contention

       that the easement instrument specifically allows the construction of crops,

       fences, gates, drains, ditches, or buildings within the Easement, that would not

       Court of Appeals of Indiana | Opinion 19A-PL-735 | February 5, 2020      Page 17 of 23
       mean that J & J is free to construct any such improvements it pleases. That is, J

       & J can only construct improvements that are “not inconsistent” with the grant

       of the Easement, i.e., improvements that do not unreasonably interfere with the

       use of the Easement. Therefore, the language relied upon by J & J does not

       answer, but rather begs, the question before us: do the specific improvements J

       & J actually constructed unreasonably interfere with Duke’s use of the

       easement?


[21]   J & J notes that to the south of the Easement there is a paved driveway from

       State Road 60 to the home of one of its vendors—identified on the above

       drawing as “ASPHALT DRIVEWAY TO MILLAN HOUSE.” According to

       J & J, this driveway has “previously served as [Duke’s] sole improved access

       point to the property” and “would remain in place after completion of the

       Subdivision in a manner that it could continue to provide [Duke] with access to

       the easement in the event needed.” Appellee’s Br. p. 26. For two reasons, the

       existence of that driveway is irrelevant to our analysis. First, J & J does not

       direct us to any evidence that Duke has an enforceable right to use the

       driveway, which, as the drawing shows, comes off of State Road 60 at a point

       outside the Easement. Second, even if we assume that Duke can use the

       driveway in perpetuity, the fact that the driveway allows access to the

       Easement does not change the fact that J & J’s improvements hinder Duke’s

       ability to do work once it has accessed the Easement.


[22]   J & J emphasizes that the challenged improvements are in compliance with the

       National Electrical Safety Code. However, as Duke notes, we have held that

       Court of Appeals of Indiana | Opinion 19A-PL-735 | February 5, 2020       Page 18 of 23
       compliance with the NESC “is only one of the factors to be considered” in

       determining whether an impermissible encroachment exists and “is not of and

       to itself determinative.” Holding v. Ind. & Mich. Elec. Co., 400 N.E.2d 1154, 1158

       (Ind. Ct. App. 1980). Indeed, in Holding, we affirmed the trial court’s finding of

       such an encroachment notwithstanding compliance with the NESC.


[23]   J & J also directs us to the affidavit of David Broady, the owner and operator of

       a company that performed work for The Plains of Millan, including the

       construction of Palermo Street, the installation of underground utilities, and the

       installation of the detention basins. Broady stated that he has operated “heavy

       construction equipment” for more than fifty years and that such equipment

       could be used within the Easement without damaging buried utilities.

       Appellant’s App. Vol. VI pp. 124, 125. But as Duke notes, Broady “did not

       testify that he operated utility equipment of the size and weight used to work on

       electric facilities[.]” Appellant’s Br. p. 28. Therefore, we agree with Duke that

       Broady’s affidavit “does not create an issue regarding transmission-line

       maintenance and the risk that electric utility equipment poses to underground

       gas and water lines.” Appellant’s Reply Br. p. 15.


[24]   J & J points out that Duke failed to seek judicial review of the Clark County

       Plan Commission’s approval of the primary plat and seems to argue that, as a

       result, Duke “waived” its right to challenge the improvements. Appellee’s Br.

       pp. 39-43. Setting aside the fact that J & J did not contact Duke about its plans

       until after the plat had already been approved (J & J says Duke was only

       entitled to notice by publication), J & J offers neither relevant authority nor

       Court of Appeals of Indiana | Opinion 19A-PL-735 | February 5, 2020      Page 19 of 23
       cogent reasoning in support of its waiver argument, as required by Indiana

       Appellate Rule 46(A)(8)(a). J & J quotes extensively from our Supreme Court’s

       decision in Louisville & Indiana Railroad Co. v. Indiana Gas Co., 829 N.E.2d 7

       (Ind. 2005), but that opinion says nothing at all about approval of plats, or

       judicial review, or waiver. J & J has not convinced us that Duke’s failure to

       seek judicial review of the plat approval impacts its ability to challenge the

       improvements.


[25]   Finally, J & J argues that its position is supported by four decisions from this

       Court. We disagree.


[26]   The first case J & J cites is Holding, which we mentioned above. There, an

       auto-salvage business had spread fill dirt in an electric-transmission easement,

       “thereby decreasing the clearance between the ground and the wires.” Holding,

       400 N.E.2d at 1156. The trial court granted an injunction requiring the

       business to “remove an amount of fill dirt beneath the cables in order that a

       minimum clearance of 22 feet would be reestablished.” Id. We affirmed,

       explaining that any less clearance would pose an unacceptable threat to public

       safety. Id. at 1158. J & J asserts, “Unlike in Holding, the infrastructure

       improvements constructed by J & J Development pose no public safety

       concerns warranting their removal to any extent.” Appellee’s Br. p. 29. In

       support of this argument, J & J notes that its improvements comply with the

       NESC. But we rejected a similar argument in Holding. Specifically, the auto-

       salvage business argued that twenty-two feet of clearance exceeded the

       requirements of the NESC, and we nonetheless upheld the injunction requiring

       Court of Appeals of Indiana | Opinion 19A-PL-735 | February 5, 2020      Page 20 of 23
       twenty-two feet of clearance, observing that the NESC “is not of and to itself

       determinative[.]” Holding, 400 N.E.2d at 1158. As such, J & J’s reliance on

       Holding is misplaced.


[27]   J & J also cites our decision in Northern Indiana Public Service Co. v. G.V.K. Corp.,

       713 N.E.2d 842 (Ind. Ct. App. 1999), reh’g denied, trans. denied. In that case,

       landowners struck and ruptured a gas line while using a bulldozer within a

       pipeline easement. Specifically, they were “clear[ing] brush from their pond in

       the vicinity of the utility easement” and “remov[ing] silt that had accumulated

       and filled the pond.” Id. at 850-51. The gas company claimed that the

       bulldozing violated the terms of the easement. The trial court denied the gas

       company’s motion for summary judgment on that claim, and we affirmed,

       noting that while the language of the easement instrument restricted the

       landowners “from erecting buildings and structures across certain areas of the

       property, there is no such restriction regarding the digging or restoration of a

       pond.” Id. at 851. J & J contends that just as we ruled against the gas company

       we should rule against Duke because “the easement instrument permits both

       ‘buildings’ and ‘drains’.” Appellee’s Br. p. 32. But as we explained above, even

       if the easement instrument expressly allows buildings and drains (which is

       debatable), J & J cannot construct any such improvements it wants—

       improvements that unreasonably interfere with Duke’s use of the Easement are

       prohibited.


[28]   Next, J & J cites Drees Co. v. Thompson, 868 N.E.2d 32 (Ind. Ct. App. 2007),

       reh’g denied, trans. denied, where we held that a residential ingress-and-egress

       Court of Appeals of Indiana | Opinion 19A-PL-735 | February 5, 2020        Page 21 of 23
       easement would not be unreasonably interfered with as a result of the

       development of the surrounding area, even though the development would lead

       to increased traffic on and over the easement. J & J urges a similar result in this

       case. But in Thompson, we explicitly emphasized the difference between an

       ingress-and-egress easement and an electric-transmission easement, explaining

       that in the case of an electric-transmission easement “it would be reasonable to

       prevent servient estate owners from taking any action that increases the risk in

       the dominant estate owner’s operation of the inherently dangerous utility.” Id.

       at 43. Because the case before us involves an electric-transmission easement

       rather than an ingress-and-egress easement, Thompson does not help J & J.


[29]   The last case J & J cites is Duke Energy of Indiana, LLC v. City of Franklin, 69

       N.E.3d 471 (Ind. Ct. App. 2016), where Duke claimed that the City of

       Franklin’s planned expansion of an intersection would interfere with Duke’s

       use of an electric-transmission easement, primarily because of the need for

       traffic-control measures, including road closures, during repair and

       maintenance work. The trial court rejected that claim, and we affirmed,

       emphasizing that the most likely maintenance would require traffic-control

       measures regardless of whether the expansion was allowed. Id. at 484-85. For

       three reasons, City of Franklin is distinguishable from this case. First, in City of

       Franklin we treated the parties not as a dominant estate and a servient estate but

       rather as co-owners of an easement, and therefore we considered the

       “reasonable necessity” of the City’s proposed work, id. at 483-84, something

       that is not at issue here. Second, City of Franklin concerned the expansion of an

       Court of Appeals of Indiana | Opinion 19A-PL-735 | February 5, 2020        Page 22 of 23
       intersection that had existed for many years, whereas this case involves the

       construction of all-new improvements. And third, in City of Franklin, it was

       possible to reroute traffic if the intersection had to be closed, whereas the

       intersection at issue here would be the sole access to the Plains of Millan

       neighborhood, so closing it could cause major problems for both Duke and the

       residents.


[30]   For all these reasons, we conclude that J & J has failed to meaningfully rebut

       Duke’s designated evidence that the challenged improvements, taken

       together—the sole entrance to the subdivision, the road and the buried utilities

       running parallel within the Easement, the detention basins, and the fire

       hydrant—unreasonably interfere with Duke’s use of the Easement. We

       therefore reverse the trial court’s grant of summary judgment in favor of J & J

       and remand for the entry of summary judgment in favor of Duke, including an

       injunction requiring J & J to remove the challenged improvements. We

       recognize that this may strike some as a harsh result. But as we have said, a

       landowner who constructs improvements on an easement—especially without

       consulting the easement holder—does so “at their peril.” Panhandle E. Pipe Line

       Co. v. Tisher, 699 N.E.2d 731, 739 (Ind. Ct. App. 1998).


[31]   Reversed.


       Riley, J., and Bradford, C.J., concur.




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