Basin Elec. Power Co-op. v. Paulson, s. 9684-9687

• Decision Date: 28 February 1980
• Docket Number: Nos. 9684-9687,s. 9684-9687
• Parties: BASIN ELECTRIC POWER COOPERATIVE, Plaintiff and Appellee, v. Edwin C. PAULSON, a/k/a Edwin Paulson, and Laura C. Paulson, a/k/a Laura Paulson; and Alice Therissa Paulson and Gladys Alpha Paulson; Defendants and Appellants. BASIN ELECTRIC POWER COOPERATIVE, Plaintiff and Appellee, v. Richard E. ANDERSON and Charlotte A. Anderson, Defendants and Appellants, and State of North Dakota, Department of University and School Lands, Defendant. BASIN ELECTRIC POWER COOPERATIVE, Plaintiff and Appellee, v. Donald E. PAULSON and Jean Paulson, Defendants and Appellants. BASIN ELECTRIC POWER COOPERATIVE, Plaintiff and Appellee, v. LuVerne WILKE, a/k/a LaVerne Wilke, and Aldores Klain, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 548

289 N.W.2d 548

BASIN ELECTRIC POWER COOPERATIVE, Plaintiff and Appellee, v. Edwin C. PAULSON, a/k/a Edwin Paulson, and Laura C. Paulson, a/k/a Laura Paulson; and Alice Therissa Paulson and Gladys Alpha Paulson; Defendants and Appellants.

BASIN ELECTRIC POWER COOPERATIVE, Plaintiff and Appellee, v. Richard E. ANDERSON and Charlotte A. Anderson, Defendants and Appellants, and State of North Dakota, Department of University and School

Lands, Defendant.

BASIN ELECTRIC POWER COOPERATIVE, Plaintiff and Appellee, v. Donald E. PAULSON and Jean Paulson, Defendants and Appellants.

BASIN ELECTRIC POWER COOPERATIVE, Plaintiff and Appellee, v. LuVerne WILKE, a/k/a LaVerne Wilke, and Aldores Klain,

Defendants and Appellants.

Civ. Nos. 9684-9687.

Supreme Court of North Dakota.

Feb. 28, 1980.

Malcolm H. Brown of Bair, Brown & Kautzmann, Mandan, for plaintiff and appellee.

Joseph A. Vogel, Mandan, for defendants and appellants.

VANDE WALLE, Justice.

This is a consolidated appeal involving land owned by Edwin C. Paulson and Laura C. Paulson, husband and wife ("Edwin Paulson") and land owned by Edwin C. Paulson with Alice Therissa Paulson and Gladys Alpha Paulson; land owned by Donald E. Paulson and Jean Paulson ("Donald Paulson"); land owned by Richard E. Anderson and Charlotte A. Anderson and the State of North Dakota, Department of University and School Lands ("Anderson"); and land owned by LuVerne Wilke and Aldores Klain ("Wilke"); collectively referred to as "landowners." The appeal is from the judgments and orders denying new trial entered by the McLean County District Court on July 31, 1979, in the four land-condemnation cases which had been consolidated for trial.

Basin Electric Power Cooperative ("Basin") initiated these condemnation actions in September of 1978 to acquire a 125-foot easement across the landowners' properties on which Basin intended to construct a 230-kilovolt alternating-current transmission line. The landowners rejected Basin's offer for the easements and demanded a jury trial.

At the trial, testimony was offered by the landowners and expert appraisers for both sides as to damages from condemnation. The presentation of the cases was concluded and the jury retired for deliberation. During the course of deliberation, one of the jurors left the jury room and was inadvertently locked out of that part of the courthouse containing the jury room. The juror was later readmitted to that part of the building containing the jury room through another door and rejoined the other jurors prior to the jury's return to the courtroom with its verdicts. After the verdicts were returned, the jurors were polled and each indicated that such were his or her verdicts.

Following the return of the verdicts, the landowners in one motion moved for a new trial, pursuant to N.D.R.Civ.P. 59(b), on the grounds that there was insufficient evidence to justify the verdicts; that the verdicts were contrary to the law in the cases; and that there was misconduct on the part of the jury. The motion for new trial was denied by the district court. Appeal has now been taken by the landowners from the judgments and the orders denying new trial.

Our first issue for consideration is whether or not the district court erred in failing to grant the landowners' motion for new trial where the jury awarded greater monetary damages for the land taken as easements across the holdings of Edwin Paulson and Wilke than testified to by the witnesses.

The jury awarded $9,562 for the taking of the Edwin Paulson property, or $532 more than the highest value placed on the property by the opinion of any witness. On the Wilke property the jury awarded $5,661 for the taking, or $225 more than the highest value placed on the property by the opinion of any witness. The awards for the taking of the property owned by the other landowners were within the range of the witnesses' testimony. In addition to the damages awarded for the taking, the jury awarded severance damages in the following amounts: $891 on the Edwin Paulson, Alice Paulson, and Gladys Paulson property; $1,912 on the Edwin Paulson property; $1,611 on the Donald Paulson property; $1,598 on the Anderson property; and $849 on the Wilke property.

The general rule in this State is that an award in a condemnation case will be sustained if it is within the range of testimony of the witnesses. Hultberg v. Hjelle, 286 N.W.2d 448 (N.D.1979); State v. Livingston, 270 N.W.2d 556 (N.D.1978); and Northern States Power Company v. Effertz, 94 N.W.2d 288 (N.D.1959).

Obviously the landowners did not appeal the jury's error in order to reduce their own awards. ¹ The landowners raised the issue of excessive awards to show that because the jury did not properly perform its function in awarding damages for the taking of two of the parcels it can also be inferred that the jury acted improperly in awarding severance damages on all the properties. In support of this contention the landowners cite Commonwealth, Dept. of Hwys. v. Stephens Estate, 502 S.W.2d 71 (Ky.1973). In that case, the jury determined the "after" value of property on which an easement had been granted to be $800 in excess of the highest figure testified to by any witness. The Kentucky Supreme Court believed that "Such a verdict, evidencing that the jury did not follow the instructions in one respect, places the whole verdict in doubt." 502 S.W.2d at 73. This led the Kentucky court to reverse the entire verdict.

Apparently in Stephens Estate, supra, a form of verdict was submitted whereby if the jury did find for the landowners it was to give a "before" value, an "after" value, and a "difference" for the verdict. When the jury fixed an "after" value that was not sustained by the evidence, the validity of the "difference" (the award) was also in doubt.

In the case at hand, the jury was not specifically required by the form of jury verdict to make a determination of the "before" value and the "after" value; instead, the jury was asked to determine compensation for the land taken and damages for severance. An error in determining the amount for the taking of the easement does not have the same prejudicial effect as the error of the Kentucky jury in determining the "after" value of the condemned property. The awards here are for different purposes and the trial court, in compliance with Section 32-15-22, N.D.C.C., ² instructed the jury to treat them separately. ³

We assume, without determining, ⁴ that the compensation for land taken was above the evidence; but that assumption does not place the validity of the other compensation awards or the severance awards in doubt. These are different awards, and each of them was within the range of the testimony. The awards for severance damages may not have been as large as the landowners wished, but they were within the range of the evidence. It was not unreasonable for the jury to assess nominal severance damages when it is considered that the two experts testifying for the power company appraised severance damages at zero. As noted by this court in Northern States Power Company v. Effertz, supra, an award in a condemnation case will be sustained if it is within the limits of damages testified to by the witnesses unless the verdict is so flagrantly against the weight of the evidence that it appears the jury was actuated by bias or prejudice. There is no indication in this case that the jury disregarded the court's instructions in assessing severance damages or damages for the taking of the other three properties, nor that the awards were so flagrantly against the weight of the evidence. We do not agree that because of a possible error in assessing some of the compensation awards it can be inferred that the jury acted improperly in awarding severance damages. On this issue the district court did not abuse its discretion in denying the landowners' motion for new trial.

The landowners also argue that the jurors did not properly perform their function because the awards for severance damages on all five of the properties are a percentage of the amounts for the taking. The landowners believe that this shows that some sort of compromise was arrived at in reaching the verdicts. If the verdicts were indeed compromise verdicts, they should be reversed. As noted by this court in James Turner & Sons v. Great Northern Ry. Co., 67 N.D. 347, 374, 272 N.W. 489, 502 (1937):

"Wherever it appears that a verdict is a compromise verdict, that is, where it is apparent that some of the jurors have conceded their conscientious belief that the defendant ought to prevail to the end that an agreement might be reached, the whole verdict is tainted and will be set aside."

We do not believe the evidence in the case at hand supports a conclusion that the verdicts were compromise verdicts. The mere fact that the awards for severance damages were percentages of the awards for the taking is not conclusive proof. Any figure can be computed as a percentage of another.

A stronger case for a conclusion that the verdicts were compromise verdicts might exist if the percentages were uniform on all the awards, but this is not the situation. The...