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ATTORNEY FOR APPELLANTS Mark Small Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Alan S. Townsend Bryan H. Babb Stephen C. Unger Indianapolis, Indiana

_______________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 14S00-0710-CV-397
RANDALL AND MARLA WAGLER, ET AL.,

FILED
Dec 24 2008, 10:05 am
of the supreme court, court of appeals and tax court

CLERK

Appellants (Defendants below), v.
WEST BOGGS SEWER DISTRICT, INC.,

Appellee (Plaintiff below). _________________________________ Appeal from the Daviess Circuit Court, No. 14C01-0512-PL-437 The Honorable Gregory A. Smith, Judge _________________________________ On Petition to Transfer Pursuant to Appellate Rule 56(A) _________________________________ December 24, 2008 Sullivan, Justice. In this case, certain property owners appealed a trial court's order of condemnation and appropriation in respect of land for sewer easements and persuaded the Court of Appeals to stay the trial court's order requiring an appeal bond. We assumed jurisdiction of the case to vacate the action of the Court of Appeals and now affirm the judgment of the trial court on the merits.

Background

West Boggs Sewer District, Inc., is a not-for-profit corporation organized under the laws of the State of Indiana. In January, 2002, West Boggs filed a Verified Application with the Indiana Utility Regulatory Commission for a Certificate of Territorial Authority ("CTA") to provide sewage disposal service in rural areas of Daviess and Martin Counties. West Boggs was granted a CTA in August, 2003. In June, 2005, the Indiana Department of Environmental Management issued a permit to West Boggs to construct a sanitary sewer system.

West Boggs sought easements in order to construct the necessary facilities. It initially attempted to have the easements donated by the land owners. When it was not successful in securing all the easements by donation, West Boggs then hired a certified land appraisal firm to prepare an independent assessment of the easement values. West Boggs then sent a Uniform Land Acquisition Offer ("Offer Letter") to all the land owners who had refused to donate easements, offering them a sum based on the assessment of the easement value.

West Boggs subsequently brought condemnation proceedings in three separate cases against the property owners who did not accept the Offer Letter ("Property Owners"). Among the Property Owners were Charles and Connie Ash and Randall and Marla Wagler.

More details on the procedural history of this case are set forth in part III, infra. For purposes of background, it is sufficient to say that West Boggs filed a motion for summary judgment in each of the cases and that the Property Owners did not respond. Thirty-nine days after West Boggs filed its motions, the trial court granted summary judgment against each of the property owners and issued an order condemning and appropriating the property in question ("Appropriation Order"). The trial court denied the Property Owners' request to stay

enforcement of the Appropriation Order pending appeal, and the court issued an order on June 11, 2007, setting bond for appeal in the amount of $50,000. On July 20, 2007, the Property Owners filed with the Court of Appeals an emergency motion to waive or reduce that bond and toll any deadlines for payment pending resolution of their emergency motion. West Boggs opposed that emergency motion. On August 6, 2007, a divided panel of the Court of Appeals 2

issued an order that, inter alia, stayed the Appropriation Order and relieved the Property Owners of the obligation to file an appeal bond.

West Boggs filed a Motion for Emergency Transfer asking this Court to assume jurisdiction on an expedited basis pursuant to Indiana Appellate Rule 56(A). We accepted jurisdiction over this appeal and vacated those parts of the August 6th order of the Court of Appeals that had stayed the Appropriation Order pending appeal and had relieved the Property Owners of the obligation to post the bond for this appeal. The Property Owners have not asked us to address the stay or bond issue in any respect in the Appellants' Brief. Accordingly, we do not address this issue further.

The cases against all Property Owners have subsequently settled with the exception of Randall and Marla Wagler.1 Discussion

I

The Property Owners contend that sewer districts throughout Indiana like West Boggs do not have condemnation authority. The Property Owners' argument rests on the assertion that two different statutes granting condemnation authority are irreconcilable and thus the statute omitting sewer districts takes precedence over the statute granting condemnation authority to sewer districts.

The first of the statutes in question is in Title 8 of the Indiana Code, which generally governs public utilities. The Code defines a "public utility" to include every corporation or company that "may own, operate, manage, or control any plant or equipment" used for the "collection, treatment, purification, and disposal in a sanitary manner of liquid and solid waste, sewage, night soil, and industrial waste." Ind. Code

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