Concurring Opinion
Garrard, J.This appeal results from an attempted collateral attack on an order allowing condemnation in an eminent domain proceeding. See, Indiana Rules of Procedure, Trial Rule 60(B) :
“This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding or for fraud upon the court.”
I agree the summary judgment was properly granted. To the extent appellants’ collateral attack attempts to challenge the basic reasonableness of a 150 foot wide easement, they are bound by the order of appropriation in the original proceedings. To the extent they attempt to assert a separate fraud on the part of appellee which might vitiate the prior order, the only facts presented are that appellee erected its towers four feet south of the center line of the right-of-way. It is alleged that this demonstrates a future intent to add another line to those that will cross the easement.
This is insufficient to establish an issue of fraud. If the original appropriation limits appellee’s easement to a certain number of wires, then further proceedings woud be necessary to entitle appellee to enlarge the number. If no such limitation exists, it is to be presumed in fixing damages in the original condemnation proceeding that appellee will make the most burdensome use of the easement permitted by law. It is in this sense that the dictum in the majority opinion to the effect that Rhoda demonstrates no injury applies. The damage award in such an instance would cover the later additional use. Of course, if the appropriation was voidable *408for fraud the mere fact that the appellee was willing to pay for the value of the easement would not defeat the action.
I therefore concur in affirming the judgment.
Note. — Reported at 857 N.E.2d 287.