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COA rejects Duke’s claims against proposed Franklin traffic expansion

December 16, 2016

Duke Energy of Indiana cannot prevent the city of Franklin from expanding an east-side intersection, the Indiana Court of Appeals found Friday, allowing the city to move forward with a project designed to beautify the State Road 44 corridor off of Interstate 65.

The case of Duke Energy of Indiana, LLC v. City of Franklin, Indiana, 41A01-1607-CT-1549, concerns a stretch of road in Franklin where Longest Drive and State Road 44 run east to west and parallel to each other, with Country Club Lane intersecting Longest Drive. The city has proposed a plan to connect the three-way intersection of Country Club and Longest to State Road 44, but Duke holds an easement underneath that land that permits the company to “construct, operate, patrol, maintain, reconstruct and remove an electric line … for the transmission of electrical energy.”

When Duke learned of the proposed traffic plan, it informed the city that it believed the expansion would unreasonably interfere with its easement right and requested a preliminary injunction barring the city from constructing the intersection expansion.  The Johnson Superior Court initially entered a temporary restraining order, and the city agreed to abide by it. But on July 5, the trial court denied Duke’s request, finding that the energy company had failed to establish unreasonable interference and, thus, had failed to show a reasonable likelihood of success at trial.

Duke appealed, arguing that the city does not have adequate property interests in the land in question – essentially a trespassing allegation – and also argued the proposed expansion unreasonably burdens its rights pursuant to the easement.  

But Judge Cale Bradford, writing for the unanimous Indiana Court of Appeals panel, said Duke does not dispute that its interest in the parcels at issue is non-possessory. Further, Duke does not argue that existing caselaw holding that a trespassing action cannot be maintained for an invasion of an easement is no longer good law. Thus, Duke cannot exclude the city from the intersection on that basis, Bradford wrote.

The appellate judge further wrote that “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,” as was found by the Johnson Superior Court. Looking at those findings as a whole, Bradford wrote that Franklin’s proposed traffic plan is a “reasonably necessary” use of the city’s right-of-way.

Further, Bradford pointed to the trial court finding that Duke’s crews would not necessarily incur additional danger when attempting to repair or replace its equipment if the intersection were expanded.  If repair or maintenance were needed at that location, it would require closure of the intersection of Longest Drive and Country Club regardless of whether it was connected to State Road 44.

Finally, Bradford pointed out the fact that the intersection serves the Hillview Country Club and Scotty’s Brewhouse, both of which have set business hours that Duke could schedule around if repairs were needed.

“On the whole, the trial court’s findings … 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,” Bradford wrote.
 

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