Basin Elec. Power Co-op. v. Gosch, 11566

• Citation: 240 N.W.2d 96,90 S.D. 222
• Decision Date: 25 March 1976
• Docket Number: No. 11566,11566
• Parties: BASIN ELECTRIC POWER COOPERATIVE, a corporation, Plaintiff and Appellant, v. Frank GOSCH, Jr., et al., Defendants and Respondents.
• Court: Supreme Court of South Dakota

Page 96

240 N.W.2d 96

90 S.D. 222

BASIN ELECTRIC POWER COOPERATIVE, a corporation, Plaintiff and Appellant, v. Frank GOSCH, Jr., et al., Defendants and Respondents.

No. 11566.

Supreme Court of South Dakota.

Argued Oct. 25, 1975.

Decided March 25, 1976.

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

Kennith L. Gosch, of Bantz & Gosch, Aberdeen, for defendants and respondents.

CHEEVER, Circuit Judge.

This is an appeal from an order of the trial court granting a new trial to defendant landowners. The plaintiff herein contends that the trial court abused its discretion in granting the order for a new trial. We affirm the trial court.

Basin Electric Power Cooperative, a corporation, plaintiff and appellant, commenced this proceeding to condemn under its power of eminent domain certain lands belonging to defendants for the purpose of imposing a transmission line easement along the eastern edge of the West One-Half (W 1/2) of Sections Twelve (12) and Thirteen (13) in Township 123, Range 78, Walworth County, South Dakota. Plaintiff sought no title to the land involved but only an easement across the same for the purpose of erecting and maintaining a power transmission line. The title was to remain in the landowners who were to have such use and enjoyment of the same which was not inconsistent with the use to be made by plaintiff.

At the time of the trial, the transmission line had not been constructed. One of plaintiff's witnesses, an engineer employed by Basin Electric, testified that the plans for the transmission line showed that the towers were to be located along the easternmost edge of defendants' property; that the east legs of the towers would be from two to eight feet from defendants' fence line; that the transmission line would overhang the fence. Nine of the towers would be situated on tillable land and two on nontillable pasture land. He further testified that the towers would vary in height from 72 1/2 to 97 1/2 feet with a minimum clearance of the wires above ground of 32 feet.

Defendant Frank Gosch, Jr. testified that in his opinion the damages resulting from the imposition of the easement on the land would amount to $19,600. A neighboring farmer testified that in his opinion the damages resulting to defendants' farm would amount to $14,700 and another of defendants' witnesses, a real estate agent and auctioneer from Mobridge, testified that in his opinion the damages would be in the sum of $14,064.65.

Plaintiff called two valuation witnesses. One, a full-time real estate appraiser, who testified that in his opinion the damages to defendants' property as the result of the taking of the easement would amount to $2,365. The second valuation witness on behalf of plaintiff was a farmer-rancher and part-time appraiser who testified that in his opinion, using the market-value approach, the damages to defendants' property would amount to $2,135 and that using the income approach the damages would amount to $2,280.

The jury awarded defendants $3,000 for the taking of the land involved in the easement.

Subsequent to the entry of judgment, defendants' trial attorney withdrew from the case and the present attorneys for the defendants filed a motion for new trial. Such motion was supported by several affidavits and supplmental affidavits. The motion was resisted by plaintiff and the matter came on for hearing before the trial court. Prior to the time of filing the application for new trial, construction had commenced on the transmission line and the steel towers were in place across defendants' property.

The court granted defendants' motion for a new trial on two grounds which are briefly summarized as follows: (1) The award of damages in the sum of $3,000 was inadequate and was given under the influence of passion or prejudice and was not justified by the evidence produced at the trial; the low verdict did not represent even a mere token of the true value of the property taken, and (2) The discovery of new evidence by defendants which was material to them and which could not with reasonable diligence have been discovered and produced at the trial, said evidence consisting of the following: (a) The height of the towers placed on defendants' property was greater than that testified to by plaintiff's witness at the time of trial, (b) The location of the towers from the east fence line was different from that testified to by plaintiff's witness at the time of trial, (c) The actual location of the east boundary line of defendants was east of the fence line and contained 1.41 acreas more than was brought out at trial, (d) The actual acres taken by plaintiff were 1.8 acres more than claimed by the plaintiff, and (e) The actual length of the easement taken across the land of defendants was 253.02 feet more than shown by plaintiff at the time of trial.

Plaintiff has assigned as error six separate items. Three of the assignments of error allege in substance that the jury verdict was based on the only substantial and competent evidence presented at the trial as to value, and that there is no evidence that the jury award was inadequate and given under the influence of passion or prejudice. The other three assignments of error pertain to the newly discovered evidence asserted by defendants and allege that there was no clear showing of reasonable diligence on the part of defendants to discover and produce such evidence at the time of trial or that such evidence was material and would have changed the result of the trial.

The authority of the trial court to grant a new trial is limited by the provisions of SDCL 15--6--59(a). The application for and the order...