Basin Elec. Power Co-op. v. Lang

• Decision Date: 22 April 1981
• Docket Number: Nos. 13075-13078,s. 13075-13078
• Citation: 304 N.W.2d 715
• Parties: BASIN ELECTRIC POWER COOPERATIVE, a corporation, Plaintiff and Appellee, v. Delano W. LANG (# 13075); Elmer F. Lang (# 13076); Jacob Lang (# 13077); and Monrad Vikse (# 13078), Defendants and Appellants, and Farmers Home Administration, Campbell County, Elizabeth Lang, and 1st National Bank of Linton, Defendants.
• Court: South Dakota Supreme Court

Page 715

304 N.W.2d 715

BASIN ELECTRIC POWER COOPERATIVE, a corporation, Plaintiff and Appellee, v. Delano W. LANG (# 13075); Elmer F. Lang (# 13076); Jacob Lang (# 13077); and Monrad Vikse (# 13078) Defendants and Appellants and Farmers Home Administration, Campbell County, Elizabeth Lang, and 1st National Bank of Linton, Defendants.

Nos. 13075-13078.

Supreme Court of South Dakota.

Argued Nov. 20, 1980.

Decided April 22, 1981.

John F. Murphy of Donley & Murphy, Elk Point, for plaintiff and appellee.

Richard E. Bleau, Herreid, Joseph A. Vogel, Jr., Mandan, N.D., for defendants and appellants.

WOLLMAN, Chief Justice.

Appellants are the individual owners of land in Campbell County, South Dakota. Appellee, Basin Electric Power Cooperative, commenced condemnation actions against appellants to obtain perpetual easements and rights-of-way over their separate tracts for the construction and operation of a 500,000 volt electrical transmission line. By stipulation and order, the individual cases were consolidated and tried before a jury. The jury returned verdicts for appellants in the following amounts:

                Delano Lang    $4,700
                Elmer F. Lang   5,500
                Jacob Lang      6,200
                Monrad Vikse    4,000
                

At the conclusion of the trial, appellants contended that appellee should also pay costs of $17,071.50. After a hearing, the trial court ordered taxation of costs against appellee of only $937.88. Appellants appeal from the judgments entered upon the jury verdicts and from the order of taxation of costs. We affirm.

Appellants' first contention is that the trial court committed reversible error in admitting Exhibit 41 into evidence. Exhibit 41 is a seventeen-page booklet entitled "Working Under High Voltage Transmission Lines 500,000 Volts or Less." This booklet was compiled, published and distributed to various landowners by appellee. It attempts to explain the characteristics of high voltage lines, the effects of the lines on everyday living and how to work safely around the lines.

The issue at trial was the just compensation due the landowners for the decrease in value of their land sustained as a result of the high voltage line. During cross-examination of one of appellee's witnesses, however, appellants' counsel questioned whether appellee had informed landowners of the existence of the electric field around a high voltage line, and of studies regarding the possible effects thereof. The booklet was later introduced by appellee for the sole purpose of refuting appellants' contention that no information on possible effects of the high voltage line had been given to the affected landowners. The trial court admonished the jury that the only purpose of Exhibit 41 was to show what the landowners had been told and informed the jury that they did not have to accept the information in the booklet as accurate unless substantiated by other sources. The trial court and counsel made no further mention of the booklet. SDCL 19-12-3 provides that "(a) lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury...." The question whether such evidence should be excluded rests largely in the discretion of the trial court. Drier v. Perfection, Inc., 259 N.W.2d 496 (S.D.1977).

Although we are cognizant of appellant's contention that Exhibit 41 contains some erroneous statements as well as information not otherwise litigated at trial, we conclude that the trial court did not abuse its discretion in view of the limited purpose for which the safety handbook was admitted and the trial court's admonition to the jury. We note that during the five-day trial nineteen witnesses testified and fifty-eight exhibits were introduced into evidence. Jurors are presumed to understand and to follow the court's instructions. Mid-America Marketing Corp. v. Dakota Industries, Inc., 289 N.W.2d 797 (S.D.1980). There is no showing in the record that the jurors failed to understand or to follow the trial court's admonition regarding the limited purpose for which the challenged exhibit was received. ¹

Appellants' second contention is that the trial court erred in refusing to tax certain costs against appellee. Appellants' statement of costs totaled $17,071.50, which included expert witness fees and actual travel expenses in the amount of $10,505.36 for the two electrical engineers who testified on behalf of appellants. Pursuant to SDCL 19-5-1, the trial court allowed mileage at the rate of fifteen cents per mile and witness fees of four dollars per day. ² Pursuant to SDCL 15-17-4, the trial court allowed as costs the transportation expense involved in procuring evidence. ³ The costs allowed by the trial court totaled $937.88.

"(T)he taxation of costs was unknown to the common law, and the courts are without the inherent power to tax costs. The authority to tax such costs should not be implied, but must rest upon a clear legislative grant of power to do so." City of Aberdeen v. Lutgen, 273 N.W.2d 183, 185 (S.D.1979). "(I) tems of expense includible as costs can be taxed only by virtue of legislative enactment." State Highway Commission v. Hayes Estate, 82 S.D. 27, 44, 140 N.W.2d 680, 689 (1966). We conclude that the legislature has set forth in SDCL 19-5-1 and SDCL 15-17-4 the guidelines for determining the costs in question. Accordingly, the trial court did not err in taxing costs against appellee at the statutory rates and for the items allowed rather than in the amounts and for the purposes requested by appellants.

The judgments and order are affirmed.

DUNN, MORGAN and FOSHEIM, JJ., concur.

HENDERSON, J., dissents.

HENDERSON, Justice (dissenting).

This case is a modern day version of Goliath slaying David. Goliath being Basin Electric Corporation, a corporation, plaintiff and appellee; David being the farmers whose land is affected, defendants and appellants; the defendants, Farmers Home Administration, Campbell County, Elizabeth Lang, and the First National Bank of Linton, none of whom submitted briefs or appeared before this Court, are essentially spectators to this unequal struggle. The arena was Campbell County. When the struggle was over, four farmers were awarded a pitifully small recompense for Goliath's right to have perpetual (a long time) easements and rights-of-way over their individual farm ground. Believing the battle to have been unfair, David now entreats this Court for a reversal of the judgments entered below and a new trial. The stone in David's pouch is that the trial court committed reversible error when it admitted appellee's Exhibit 41 into evidence over objection in that the exhibit was hearsay, prejudicial, and its preparers were not present and available for cross-examination. I would grant David a new trial and therefore respectfully dissent. Thus, I do not reach the costs issue as I would permit a legal struggle anew on just compensation.

This case, of course, is a condemnation case. Appellants had no right to stand their ground and refuse to give up their territory. Appellants were forced into court by appellees to whom they owed no obligation. Once there, they could not question the march of the transmission lines, like iron men, trodding across our South Dakota prairie. They were, therefore, vanquished from the beginning and appellee was triumphant in taking the land through the spear, sword, and shield of eminent domain. This left but one issue: just compensation for the landowner. City of Huron v. Jelgerhuis, 77 S.D. 600, 97 N.W.2d 314 (1959). Needless to say, it is highly incumbent upon our courts to see that the landowners are given a fair trial to insure just compensation in such a struggle. Without a fair trial, there is nothing left but to bow the knee in total submission (tyranny).

The necessity of the taking was not at issue. Yet, the preface of Exhibit 41 addresses necessity: "The planning and construction of transmission lines is done in response to the increasing electrical needs of these consumer-members (farmers and ranchers). This planning is done jointly with other utilities when it appears the best interests of the consuming public can be served in this manner." (Emphasis supplied.) The best interests of the consuming public were not at issue. Appellees sought in this colored brochure, Exhibit 41, to establish the necessity of the taking. Moreover, to minimize the concerns of farmers and ranchers, the preface expresses objectives and goals while honeycoating the taking of their land with statements such as this: "The objective serves also as a major deterrent to building excessive numbers of transmission lines." Through this, totally irrelevant and prejudicial matters were put before the jury to influence its judgment in minimizing the damage award. Witnesses were not called to substantiate these self-serving declarations; cross-examination was therefore denied. Appellants were undeniably hurt by this preface. In my opinion, the preface itself constituted the admission of prejudicial matters. In State Highway Commission v. Beets, 88 S.D. 536, 224 N.W.2d 567 (1974), we held that prejudicial error is error which in all probability had some effect upon the final result of the trial, that is, the verdict of the jury. To parade before the jury, by a colored brochure, the goals and objectives of this utility company and the corresponding needs of the farmers and ranchers, was an issue not in the pleadings and not in the case. It obviously had an effect upon the jury, that is, a small jury award, and that is exactly why appellee placed Exhibit 41 into evidence, which was duly received over the strenuous objection of appellants.

Appellee, through Exhibit 41, portrayed the usage of appellants' land as an electrical blueprint to agricultural paradise. Evidence established that its birthplace was in Canada and compiled by a company called Ontario Hydro Electric. Including the cover, there...