Meyer v. Northern Indiana Public Service Co.

287 N.E.2d 882, 259 Ind. 408, 1972 Ind. LEXIS 494

Opinions

Dissenting Opinion

Givan, J.

I dissent from the majority opinion on the petition for rehearing in this case and would adhere to our original opinion handed down February 16, 1972, and published in 278 N. E. 2d 561.

The majority opinion on the petition for rehearing states that even if they assume the right-of-way owned by Northern Indiana Public Service Company on the Truitt property was purchased under threat of condemnation for the same project as the right-of-way proposed to be condemned across the Meyer property, that it is immaterial to the issues in this case because Mr. Truitt is not a party to this litigation. I fail to see any logic to this observation. The question is not whether Mr. Truitt is a party but whether or not Northern Indiana Public Service Company under threat of condemnation has already acquired a substantial portion of the right-of-way needed at this particular location for this project. The facts in this case clearly disclose this to be the case.

The additional facts recited by the majority on this petition for rehearing that it will be inconvenient for Northern Indiana Public Service Company to change its plans and place the power line on the Truitt property rather than on the Meyer property is not a proper judicial consideration. If Northern Indiana Public Service Company has erred in the amount of right-of-way it has acquired or is attempting to acquire in this particular location, this Court is not justified in imposing a servitude contrary to the fundamental law of condemnation on the Meyer property in order to extricate Northern Indiana Public Service Company from its error.

Arterburn, C. J., concurs.

Note.—Reported in 287 N. E. 2d 882.