Arkansas Power & Light Co. v. Haskins

• Decision Date: 20 October 1975
• Docket Number: No. 75--98,75--98
• Citation: Arkansas Power & Light Co. v. Haskins, 528 S.W.2d 407, 258 Ark. 698 (Ark. 1975)
• Court: Arkansas Supreme Court
• Parties: ARKANSAS POWER & LIGHT COMPANY, Appellant, v. John T. HASKINS, Appellee.

Page 407

528 S.W.2d 407

258 Ark. 698

ARKANSAS POWER & LIGHT COMPANY, Appellant, v. John T. HASKINS, Appellee.

No. 75--98.

Supreme Court of Arkansas.

Oct. 20, 1975.

House, Holmes & Jewell, Little Rock, for appellant.

Haskins, Ward, Rhodes & Garrett, by James R. Rhodes, III, Little Rock, for appellee.

ROY, Justice.

Appellee, John Haskins, owned a 39 acre tract of land located approximately ten miles northwest of the city limits of Little Rock, Arkansas. On March 8, 1973, Arkansas Power & Light Company condemned a right-of-way across some of the land owned by the appellee. This right-of-way is a strip of land 180 feet wide and 1004 feet long at the center line as it passes through the Haskins property. The parties stipulated the total property taken was 4.2 acres. Mr. Haskins did not make his residence on the property. He has raised goats and horses on the property, cleared most of the large rocks and cut many of the trees that were originally present when he purchased the land in September of 1964.

The landowner not being satisfied with the compensation offered, this cause came on for trial November 26, 1974. The trial resulted in a jury verdict for the appellee in the amount of $17,000.00.

For reversal appellant relies upon several points. It first contends that the testimony of appellee characterizing the tower as an attractive nuisance was error which was later compounded by the court's refusal to give an instruction offered by appellant in an effort to mitigate the prejudicial effect of this alleged evidentiary error.

The questioned testimony was as follows:

Q. He also mentioned to you about fencing and asked you whether or not you thought fencing expenditures helped in developing this property to its highest and best use. Do you contemplate any more fencing expense after this, Mr. Haskins?

A. Yes, I do.

Q. Tell the jury why.

A. Well, I think that . . . of course, I don't know what I am going to do to the property now, but if I live and relocate in another area, I think the right-of-way should be fenced. I have a nine year old child and the last time we were out there, they have steps on this huge tower, she and her girlfriend were about Forty feet up the tower, there's a ladder that they can go right up and I don't think, you know, I don't think I want her to bring children out there and play with her on this attractive nuisance that exists on the property, so I plan to fence it, yes, sir.

Appellant's requested Instruction No. 9 which the court refused follows:

'No. 9

'You are instructed that in determining the amount of compensation to which the landowners are entitled in this action, you will not consider any injury or damage which they might sustain in the future by reason of the power company's negligence in the maintenance and operation of its power line in the future. Should such arise, the landowners will then have a separate cause of action. You will consider only those factors that are real and capable of ascertainment, and will not consider prospective, speculative or imaginary damages in arriving at compensation.'

Appellant places great emphasis on appellee's alleged misuse of the doctrine of 'attractive nuisance.' A less strained interpretation of appellee's words can be gleaned from the context in which they were presented. The appellee used the words 'attractive nuisance' in everyday speech connotation, and it was doubtless applied more as an expression of the allure that such a tower might present to a child, than with an idea to convey to the jury the legal elements comprising the term. Neither the term nor the legal significance of the doctrine of attractive nuisance is at issue here.

From the above testimony it can be seen that appellee's intent was to show the effect such a structure might have on the market value of his land and the use of the phrase 'attractive nuisance' was nothing more than a method of expressing himself. Certainly such a remark would have no prejudicial effect on a jury, which in all probability would attach no more significance to it than any other words indicating the tower would be attractive to children. Appellee had a right to show every element of damage to his property which would affect the market value and this was certainly one of them.

In North Arkansas Western Railway Co. v. Cole, 71 Ark. 38, 70 S.W. 312 (1902) the Court held that increased risk of fire was a factor which could be considered in establishing the market value of the property in question.

In Hicks v. United States for Use of T.V.A., (6th Cir.) 266 F.2d 515 (1959), proceeding was brought by the Tennessee Valley Authority against the landowner to condemn an easement strip across his farm for erection of steel towers for power lines. The Court held that the apprehension of injuries to person or property is founded on practical experience and may be taken into consideration insofar as the lines and towers affect the market value of the land. The Court held that it is a question for the jury whether a reasonable apprehension of danger from inherent defects and unavoidable accidents may exist, and if so, such an apprehension so far as it depreciates the present market value of the land not taken is an element of incidental damages. The Court states 'that from this record with its details as to the structure of the power lines and towers we find that the apprehension is reasonable.'

In the present case there was testimony by the witnesses that the towers extended upward in excess of one hundred feet and that the crossbars or arms span some ninety feet. There were fourteen wires carrying approximately 500,000 volts running the length of the property. Apprehension of danger here is very reasonable. The Court held in Pacific Gas & Electric Company v. W. H. Hunt Estate Company, 49 C.2d 565, 319 P.2d 1044 (1957), '(T)hat a line carrying 220,000 volts of electricity is a dangerous instrumentality is a fact too well and commonly known to be disputed. * * * A reasonably foreseeable hazard to be created by stringing a 220,000 volt power line for more than 3 miles across one's land is manifestly a proper item to be considered in determining the damage to the property, not only to the land underlying the easement but also to all the land which conceivably might be affected by the hazard. Evidence . . . tending to show what practical uses of the land . . . would give rise to foreseeable hazards because of the construction and operation of the highvoltage line is pertinent to the issue being tried. No reasonably prudent person should be expected to purchase the land here in question without giving heed to the potentials of plaintiff's power line as well as practical uses of the land beneath and surrounding it, and the possible effects of the hazard upon the uses for which the land was otherwise suitable.' (citations omitted.) (Emphasis supplied).

Here the testimony that the tower had a ladder attached which was close enough to the ground to be reached by children presented a factor which certainly would be considered by parents desiring to purchase property for a home site. To ignore the impact of a transmission line tower in terms of its capacity to entice small visitors is to be blind to common experience. It is unrealistic to expect that a tower wouldn't pose a concrete and legitimate worry to possible purchasers of appellee's land, especially if children were involved.

Since the questioned testimony was admissible, giving of Appellant's Requested Instruction No. 9 would have been misleading and confusing to the jury and the Instruction was properly refused.

Appellant's next objection was that the trial court erred in 'permitting appellee's value witness, William R. Meeks, Jr., to compare lot sales to the landowner's 40 acre tract.' In this connection it is to be noted that the appellee's witness only used the questioned...