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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowThe Court of Appeals of Indiana has stopped an attempt by the University of Notre Dame to install a private transmission line on land that an electric utility took by eminent domain, finding the private school could not “piggyback” on the acquired easements for its own use and benefit.
Appellant 701 Niles owns three parcels of land, according to court documents. AEP Indiana Michigan Transmission Co. filed a condemnation action against the landholder, seeking easements for an underground electric transmission line as part of the Mussel-Colfax Transmission Line Rebuild Project.
While the parties were trying to reach an agreement on the easements, AEP revealed that Notre Dame would be sharing the underground corridor for the university’s hydropower project. The university’s project would require 22,000 linear feet of 3-inch conduit, 10 to 12 manholes, extra concrete, flowable fill, excavation and pavement repair.
In response, 701 Niles filed a motion to enjoin AEP from allowing the easement to be used for private purposes. The St. Joseph Circuit Court denied the motion, concluding that based on Westport Stone Co. v. Thomas, 94 N.E. 406 (Ind. 1911), “where the public use of the taking in this instance is primary and paramount, the use of eminent domain will not be defeated by the fact that there are possible incidental, secondary private benefits.”
Turning to the Court of Appeals, 701 Niles argued Notre Dame’s use of the easement was not “incidental to AEP’s public use” and would be an unconstitutional taking in violation of Article 1, Section 21 of the Indiana Constitution. Under Cont’l Enter., Inc. v. Cain, 387 N.E.2d 86, 90 (Ind. App. 1979), that provision is held to mean that “private property may not be taken for a private purpose.”
The Court of Appeals agreed that the university’s project constituted a taking and reversed the trial court in 701 Niles, LLC v. AEP Indiana Michigan Transmission Company, Inc., et al., 21A-PL-2123.
In a unanimous decision, the appellate panel held, “… (T)he University cannot be allowed to piggyback on the easements acquired by AEP through the power of eminent domain and install an entirely separate line on the Land, which is private and offers no material benefit to the public.”
The Court of Appeals rejected AEP’s argument that 701 Niles waived any objection to the university’s project because the landholder did not follow statutory procedures for objecting to the condemnation proceedings.
“The condemnation complaint did not put 701 Niles on notice of any intended use of the Land by a private party,” Judge Robert Altice wrote for the court. “AEP asserted only public use, of which 701 Niles had no objection, and secreted its (memorandum of understanding) with the University. Under the circumstances, 701 Niles did not knowingly waive any objections to the University’s third-party use of the Land for a wholly private purpose.”
Equally, the appellate court was unpersuaded by AEP’s argument that Westport was analogous because the utility was seeking the easements to supply the public with electric service. The appellate panel pointed out that where Westport concerned one railroad that would be used by public and private parties, Notre Dame would be installing an entirely separate line for its “sole private use and benefit.”
“We agree with 701 Niles that there is nothing incidental about the University’s potential use of the Land,” Altice wrote. “The University’s private line would be distinct from AEP’s use and separable without any established burden to the public interest. Further, illustrating that the University’s use is an additional and distinct encroachment on the Land is that the University’s private line requires extra construction materials and the installation of additional manholes, and AEP acknowledges that the University will inevitably need to traverse the Land for ongoing service and repairs of the underground line.”
The Court of Appeals remanded the case, directing the trial court to ender an order enjoining AEP from installing Notre Dame’s line without 701 Niles’ express consent.
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