Alabama Power Co. v. Keystone Lime Co.

• Decision Date: 07 November 1914
• Docket Number: 623
• Citation: 67 So. 833,191 Ala. 58
• Parties: ALABAMA POWER CO. v. KEYSTONE LIME CO.
• Court: Alabama Supreme Court

67 So. 833

191 Ala. 58

ALABAMA POWER CO. v. KEYSTONE LIME CO.

No. 623

Supreme Court of Alabama

November 7, 1914

On Application for Rehearing, Jan. 11, 1915

Appeal from Shelby County Court; E.S. Lyman, Judge.

Proceedings by the Alabama Power Company against the Keystone Lime Company to condemn a right of way for the erection and maintenance of towers, poles, or wire lines for the transmission of electricity. From a judgment awarding damages, petitioner appeals. Reversed and remanded.

Knox Acker, Dixon & Sims, of Talladega, and Thomas W. Martin, of Birmingham, for appellant.

Riddle Ellis & Riddle, of Columbiana, for appellee.

DE GRAFFENRIED, J.

By this proceeding the appellant sought to condemn a strip of land 100 feet in width across the lands of appellee as a right of way upon which to erect and maintain towers, poles, or wire lines for the transmission of electricity. After the court made the order condemning the above strip, and before the trial in which the damages were assessed by the jury, the appellant, as under our Constitution and statutes it had the right to do, placed its towers, poles, and conductors on the strip, and is now using it for the purposes for which it was condemned. This appeal is taken, not from the judgment of condemnation, but from the judgment pronounced upon the verdict of the jury assessing the appellant's damages.

During the trial by jury of the issue as to the amount of the appellee's damages, the evidence showed what the appellant has done and is doing in the use of the strip of land, and what use the strip may be, under the rights which appellant acquired by its judgment of condemnation, put to in the future. The conductors of appellant are strung on steel towers. These towers are 75 feet high and each weighs about 4,500 pounds. Upon these towers are cross-arms which support the conductors, and the lowest cross-arm on any tower is 47 feet from the ground. From each cross-arm hangs a string of insulators, and the lowest conductor of electricity is thus at the tower, at least 42 feet from the ground. The towers are placed from each other at such distance that the nearest point at which a conductor approaches the ground is 25 feet. The conductors are copper cables, and there are six conductors now in use. The conductors are strung with a pull of about 1,400 pounds, and a conductor will itself break at a pull of 6,000 pounds.

"The towers are so placed that the lowest conductor or cable will at no place be nearer than 25 feet of the ground and the height of the lowest cable will vary from 25 to 43 feet above the ground. The cables are strung on three cross-arms, one cable being strung on the end of each cross-arm, thereby placing three cables on each side of the towers. The highest cable is 67 feet above the ground. The towers are composed of steel, the tower being completely covered with a coat of zinc so that it will not rust. The towers are fastened to anchors which extend into the ground 7 1/2 feet and at the base of the anchors, is a grrillage about 2 1/2 feet square, pieces of iron that extend out at right angles which are about 2 1/2 feet square at the base. *** The towers were composed of four posts, which were in form angular, which posts are anchored in the ground, and which extended to the top of the steel work. These four posts are braced together with steel strips or bars. The base of each tower covers a space 15 feet square. The tops of the towers are strung to what are called ground wires or cables, each three-eighths of an inch in diameter and made of high-grade galvanized steel, and each of which is so strong that it would lift about 20 bales of cotton without breaking. These steel cables are placed on the towers 3 feet above the first cross-arm, which is the very highest point of the towers, and they extend from one tower to another above the copper conductor, thereby tying the whole row of towers together. The towers as constructed are designed to stand a velocity of wind of 70 miles an hour, and the breaking of three conductors in addition thereto. Each

conductor will support a weight of 6,000 pounds without breaking. The maximum weight under any condition that will be placed on each conductor will be 3,000 pounds, so they will stand twice as much as will be placed on them; that, for a wind 70 miles an hour to affect these towers, three of the cables would also have to be broken. A wind blowing 70 miles would, no doubt, not blow over these towers unless three of the cables were broken. Wind at 70 miles an hour is about 20 miles higher than any wind that has been recorded in the last six years, either at the weather station at Montgomery or Birmingham. A person could go to a distance of 3 1/2 feet of these cables when they are charged with electricity without danger; so, the lowest being 25 feet above the ground, it would be more than 20 feet beyond the danger line of any person or animal. If one of the cables should break and fall to the ground, the electrical current will immediately be shut off at the station by what is called circuit breakers, which is automatically done, and which occurs immediately upon the cable touching the ground. If the broken cable should touch another wire, the current would instantly be shut off; that is, automatically. *** The steel ground wires placed on top of the towers act as a shield to the copper conductors, so that lightning will strike the ground wires and be immediately conducted into the ground through the steel towers. There is no increased danger from being near the tower lines during a thunderstorm. The tower lines and electrical currents on the cable have no detrimental effect on crops or trees or anything growing on the land over which the cables stand--do not injure them in any way."

The above quotations mark a part of a witness' testimony, and from his testimony and the photographs accompanying the transcript we gather that, so far as the strip of land is concerned, where it runs through woodlands, the trees have been cleared from it, and that steel towers with cables upon them have been erected along the middle of the condemned strip; the distance between the towers being 750 feet. Photographs accompanying the transcript indicate that, where such towers are placed in cultivated fields, no great impediment is thereby created, even at the points where the towers are anchored to the ground, to the cultivation of the right of way, and that no impediment whatever is created by the towers to the cultivation of the right of way at points between the anchoring points of the towers. There resides, however, in appellant, at all times, whenever its reasonable necessities may require it to do so, the right to go up or down the right of way for the purpose of repairing any breakage in its right of way, or for other reasonable purposes, and, of course, if its business should require it, appellant may, in the future, place other towers upon the right of way.

In its practical use of this land for the purposes for which it has been condemned, appellant has up to the present time made no changes upon the surface of the earth, except to cut the trees from the surface of the right of way and to place some towers 750 feet apart and some telephone posts upon it. The towers are attached to steel anchors, which have been sunk or driven 6 or 7 feet into the earth, and this appears to be all that has been done to the land up to the present time. In the future some other towers may be placed on the right of way, but the uses to which the right of way may be put are not, however, exclusive in appellant. Appellee may use the right of way for any purpose which does not conflict with the paramount rights of appellant. For instance, subject to the above rights of appellant, appellee has the right to cultivate the land, to go across it, and generally, as already said, to use it in any way which does not affect the paramount rights of appellant. Appellant has no right--and there is, in the nature of things, no reason for it--to fence either side of the right of way.

1. There is evidence tending to show that the lands indicated in the strip are in the mineral district. The condemnation proceedings do not touch the appellant's ownership of the minerals on the strip, if there are minerals there, nor do they preclude the appellee from taking the minerals therefrom, provided this is done in such a way as not to obstruct the use by appellant of so much of the surface as it may now need or may need in the future for the proper maintenance of its appliances for conducting electricity. When a railroad company condemns a right of way, it has the exclusive right to the use of the entire surface of the right of way, so long as the right of way remains in use for railroad purposes. The railroad company may place as many tracks on its right of way as it sees proper, may fence it and in fact possesses the right to the exclusive use of the surface. The ultimate fee which resides in the owner of the land after such a condemnation is therefore of but little practical value. When, therefore, such a condemnation is had, the damages of the owner of the land, in so far as the right of way is concerned, are the actual value of the land, no more and no less. His entire damages in such a case are the actual value of the land actually condemned and the damages, if any, which have resulted to his other lands, out of which the right of way is carved, by reason of the existence of the right of way through his land. The damages resulting to the owner of the lands not condemned--the lands out of which the right of way is carved--are the difference in its actual fair value before and after the condemnation. In estimating the amount of such resultant damages, the jury should consider...