Chambers v. Public Service Co. of Indiana, Inc.

Dissenting Opinion

DeBruler, J.

In the case at bar, Public Service Company of Indiana brought this eminent domain proceeding against Phyllis and Donald Chambers who owned 150 acres of land in Jefferson County, Indiana. Public Service Company condemned their entire real estate for the express purpose of constructing the Marble Hill Electric Generating Station. It was established by answers to interrogatories that the site for this proposed nuclear generating facility was subject to approval by the Atomic Energy Commission and the Environmental Protection Agency. It seems clear to me that the applications of the Public Service Company for site approval by these agencies, and any orders of those agencies in response to the applications, if existing, would contain statements of the company and the agencies describing the proposed site for the construction of Marble Hill, and as such would provide these landowners with information which would be “relevant to the subject matter involved” or which would be “reasonably calculated to lead to the discovery of admissible evidence.” Ind. R. Tr. P. 26. For example, the absence of all or part of the land owned by these landowners from the site description in either the applications or the agency orders, *345would itself be admissible on the issue of the necessity of the take, or would in turn lead to the discovery of further evidence that the subject land did not comprise part of the site for the Marble Hill Station. And further as pointed out by Judge Lybrook for the First District Court of Appeals, the denial, if any, of an application for a permit to proceed by any governmental agency empowered to do so would be relevant and admissible on the question of whether Public Service Company was acting illegally in condemning this land.

Note. — Reported at 355 N.E.2d 781.