Aeroville Corp. v. Lincoln County Power Dist. No. 1

• Court: Nevada Supreme Court
• Writing for the Court: MERRILL
• Citation: Aeroville Corp. v. Lincoln County Power Dist. No. 1, 290 P.2d 970, 71 Nev. 320 (Nev. 1955)
• Decision Date: 09 December 1955
• Docket Number: No. 3864,3864
• Parties: The AEROVILLE CORPORATION, a Corporation, Appellant, v. LINCOLN COUNTY POWER DISTRICT NO. 1, a Municipal Corporation of the State of Nevada, Respondent.

Page 970

290 P.2d 970

71 Nev. 320

The AEROVILLE CORPORATION, a Corporation, Appellant, v. LINCOLN COUNTY POWER DISTRICT NO. 1, a Municipal Corporation of the State of Nevada, Respondent.

No. 3864.

Supreme Court of Nevada.

Dec. 9, 1955.

Harry H. Austin, Las Vegas, for appellant.

Jo G. Martin, Pioche, for respondent.

MERRILL, Chief Justice.

This is an action for condemnation of land through right of eminent domain brought by Lincoln County Power District No. 1 against the Aeroville Corporation of Clark County. In the trial below the jury found for condemnation and fixed damage to the defendant for the taking at $10,000. The trial judge, feeling this award to be excessive, granted new trial upon this issue. Aeroville has taken this appeal from the judgment of condemnation and from the order granting new trial.

Upon its appeal from the judgment, Aeroville first contends that a taking of land for the purpose here involved is not permitted by the law of this state. Section 9153 N.C.L.1929, Supp.1931-1941 provides: 'Subject to the provisions of this chapter, the right of eminent domain may be exercised in behalf of the following public uses: * * * 8. Telegraph, telephone, electric light, and electric power lines, and sites for electric light and power plants. * * *'

The condemnation here involved is for the purpose of partial relocation of a high voltage power line which extends from Hoover Dam to the Pioche Mining District in Lincoln County. The line was originally located in 1936. Based upon a line of authority exemplified by In re Poughkeepsie Bridge Co., 108 N.Y. 483, 15 N.E. 601 and Lusby v. Kansas City, M. & B. R. Co., 73 Miss. 360, 19 So. 239, 36 L.R.A. 510, Aeroville contends for the rule that in the absence of express statutory authority the right of eminent domain is exhausted by the original location and that no right to condemn land for a relocation exists.

In our view the rule of these cases is simply that unless the condemnor has the right to change the location of its line, land cannot be condemned for such a purpose. In these cases it was clear that no such right existed. In both cited cases, for example, the corporate charter as granted by legislative act expressly required that the corporation select its proposed route and file for public record a map of that route within a given period of time. It was given no power to place its facilities elsewhere and under the expressed limitations upon its choice of site no such power could reasonably be implied. As stated by the New York court in the Poughkeepsie Bridge case [108 N.Y. 483, 15 N.E. 605], 'This we think exhausted its power of choice, and the location so made was final, and could not be changed in the absence of legislative authority.' The purpose of the proposed condemnation was, then, unlawful.

No such limitation upon its power of choice is to be found in the charter of the Lincoln County Power District. That district was incorporated pursuant to the provisions of the Power District Law of Nevada, §§ 5180.01-5180.18, N.C.L.1929, Supp. 1931-1941. The powers of districts so created are by the act itself stated in extremely broad terms. Section 5180.08 provides, 'Any district created pursuant to the provisions of this act shall be vested with all the powers necessary and requisite for the accomplishment of the purpose for which such district is created, capable of being delegated by the legislature. No enumeration of particular powers herein created shall be construed to impair or limit any general grant of power herein contained nor to limit any such grant to a power or powers of the same class or classes as those enumerated. The district is empowered to do all acts necessary, proper or convenient in the exercise of the powers granted under this act.' In the same section, among the particular powers set forth is the following, 'To acquire by * * * exercise of the power of eminent domain * * * real and personal property of every kind within or without the district * * *.'

There can be no doubt that under such broad authorization the district had full power to change the location of its line. Assuming legal necessity for such change to exist, there can be no doubt that an exercise of the right of eminent domain in behalf of such change was proper. Wallace v. City of Winfield, 98 Kan. 651, 159 P. 11; Burkhard v. Pennsylvania Water Co., 234 Pa. 41, 82 A. 1120; Bogert v. Hackensack Water Co., 101 N.J.L. 518, 129 A. 138.

Aeroville next contends that no legal necessity for the change of location has been shown to exist and that condemnation for this reason was unauthorized.

It appears that at the time of commencement of this suit the existing line was in the immediate vicinity of the Nellis Air Force Base of the United States Government in Clark County and actually crossed a proposed extension of the aircraft zone of approach to the landing field. A series of aircraft accidents resulting from collisions with the power line in the neighborhood of the field had led the United States to insist upon a change of location. Aeroville contends that unless the United States itself had condemned and taken the old power line right of way, these facts may not be asserted by the district to establish necessity...