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.
Court of Appeals of Indiana | Opinion 19A-PL-735 | February 5, 2020 Page 23 of 23