Basin Elec. Power Co-op., Inc. v. Cutler

• Citation: 217 N.W.2d 798,88 S.D. 214
• Decision Date: 08 May 1974
• Docket Number: No. 11208,11208
• Parties: BASIN ELECTRIC POWER COOPERATIVE, INC., a corporation, Plaintiff and Appellant, v. Dale L. CUTLER et al., Defendants and Respondents.
• Court: Supreme Court of South Dakota

Page 798

217 N.W.2d 798

88 S.D. 214

BASIN ELECTRIC POWER COOPERATIVE, INC., a corporation Plaintiff and Appellant, v. Dale L. CUTLER et al., Defendants and Respondents.

No. 11208.

Supreme Court of South Dakota.

May 8, 1974.

T. R. Pardy, Mumford, Protsch, Sage & Pardy, Howard, for plaintiff and appellant.

A. William Spiry, Britton, for defendants and respondents.

DUNN, Justice.

Basin Electric Power Cooperative, Inc., hereafter referred to as Basin Electric, brought this action in the exercise of its power of eminent domain for the purpose of imposing a power line easement over the land of the respondent Cutler. The respondent owned a total acreage of 5,960 acres which composed the ranch unit in question. Basin Electric would take an easement over a 54.26-acre area, but no land title was involved as title would remain in the landowner. There will be 15 towers on the Cutler property resting on a total of .13 acres of land. Three towers will be located in the Southeast Quarter of Section 17, two in the Northwest Quarter of Section 21, two in the Southwest Quarter of Section 21, one in the Southeast Quarter of Section 21, three in the Northeast Quarter of Section 28, one in the Southeast Quarter of Section 28, and three in the Southwest Quarter of Section 27. All of the towers will be situated on hayland or pasture land. A trial to a jury was held and it was found that there had been a $5.00 an acre decrease in value for each acre of the 5960-acre unit for a total award of $29,800. Basin Electric appeals from this judgment.

The appellant's first contention centers around whether certain witnesses for the landowner should have been allowed to testify as to their opinion of the market value of the land in question before and after the easement. Appellant contends that testimony given by certain expert witnesses for the respondent was allowed without proper foundation being laid concerning their qualifications and competence.

Witness Kopecky had a background of many years of law enforcement, but had only been in the real estate business for four years. He operated a 1,000-acre 'hobby' farm on the side. Witness DeVaan had a background of ranching and farming and had been selling real estate for about eight years. He had attended an appraisal school. Neither of the witnesses belonged to a professional appraisal association which require appraisals to be analyzed and maintained at certain standards. Neither had ever been a witness in court before as to the value of property. Neither had any particular expertise as to the effect of highline easements on the value of land. Their comparative sales were rather sketchy and not too comparative. However, both had been familiar with ranch and farm prices in this area for many years and both had bought and sold a considerable volume of ranch and farm property in Brown County in the past few years. In State ex rel. Helgerson v. Riiff, 73 S.D. 467, 44 N.W.2d 126, this Court stated:

'The qualifications and competency of a witness to give opinion evidence is primarily in the discretion of the trial court and his ruling in determining qualifications will not be disturbed unless there is no evidence that the witness had the qualifications of an expert or the trial court has proceeded upon erroneous legal standards. 20 Am.Jur., Evidence, § 786.'

Under this rule we would hold that the qualifications and competence of Kopecky and DeVaan were properly within the discretion of the trial court. Further, the trial court did not err in permitting the witness Holt to testify. The allowance of the neighboring property owner to express opinions on value was upheld in State Highway Commission v. Hayes Estate, 82 S.D. 27, 140 N.W.2d 680.

Appellant next contends that the trial court erred in permitting these witnesses to testify as to conjectural matters such as the danger of fire; of power outages; and the problems of irrigating sometime in the future. It should be kept in mind that the witnesses were not testifying as to the actual loss to the property due to these items. Rather they were testifying as to items which from their experience in the sale of real estate they felt would be considered by the buyer in negotiating for real property. Once they were qualified they were entitled to express an opinion as to value and to also state the factors they considered in arriving at a depreciation in value even though some of those factors were in the nature of conjecture.

Appellant's last contention is that his motion for a new trial should have been granted. As a basis for this contention he asserts the verdict was excessive and not sufficiently supported by the evidence. Initially the general rule should be stated, that the trial judge has the primary responsibility for determining whether a new trial should be granted. It is within his discretion and his decision should not be disturbed except for a clear abuse of this discretion. In State Highway Commission v. Madsen, 80 S.D. 120, 119 N.W. 924, this Court stated that unless the jury in arriving at its decision was acting under influence of passion, prejudice or gross mistake, the lower court judge did not abuse his discretion in not granting a new trial.

The burden of proof as to damages was certainly on the respondent and this burden forced him to prove damages to the remaining portion of the ranch as well as the area encumbered by the easement. The measure of damages in condemnation cases where fee title is taken and only involving a partial taking is the difference between the fair market value of the unit before the taking and the fair market value of what remains after the taking. State Highway Commission v. Olson, 81 S.D. 401, 136 N.W.2d 233; City of Bristol v. Horter, 73 S.D. 398, 43 N.W.2d 543; State Highway Commission v. Fortune, 77 S.D. 302, 91 N.W.2d 675. The Hayes Estate cases dealt with the concept of severance damages and stated the rule concerning severance as follows:

'In the application of this rule severance damage to the remaining property is included in an award without being designated as such and the amount allowed for the property actually taken is not segregated from the damage to the remainder. In estimating the damages to the remainder, or in other words, the depreciation in value of the part not taken, the landowner is entitled to have the jury informed as to all those facts which legitimately bear upon the market value of the ranch before and after the taking and those factors which would ordinarily influence a prospective purchaser in negotiating for the property. The manner in which the ranch was used before the taking and the manner in which it can be used afterwards is of prime importance. Anything which is directly injurious to its particular adaptability or detracts from its use at maximum efficiency affects market value and is competent and a legitimate factor in establishing total damages sustained within the contemplation of an award of just compensation. 18 Am.Jur., Eminent Domain, § 266.'

There is nothing wrong with the rule laid down by the Court for determining just compensation for the landowner. The formula of determining the value of the ranch before the easement and the value of the ranch after the easement is well recognized in fee title cases. The problem here is that the rule does not fit the evidence. If the jury is to be allowed to make a determination of...