Baucum v. Arkansas Power & Light Co.

• Decision Date: 11 March 1929
• Docket Number: 198
• Citation: Baucum v. Arkansas Power & Light Co., 15 S.W.2d 399, 179 Ark. 154 (Ark. 1929)
• Parties: BAUCUM v. ARKANSAS POWER & LIGHT COMPANY
• Court: Arkansas Supreme Court

15 S.W.2d 399

179 Ark. 154

BAUCUM v. ARKANSAS POWER & LIGHT COMPANY

No. 198

Supreme Court of Arkansas

March 11, 1929

Appeal from Pulaski Circuit Court, Second Division; R. M. Mann Judge; reversed.

Reversed and cause remanded.

Coleman & Riddick, for appellant.

Robinson House & Moses and W. H. Holmes, for appellee.

SMITH J. HART, C. J., and MEHAFFY and MCHANEY, JJ., dissent.

OPINION

SMITH, J.

This suit was brought by appellee, Arkansas Power & Light Company, to condemn a right- of-way for an electric power transmission line across lands belonging to appellants. There was a verdict and judgment in appellants' favor for $ 3,500, from which is this appeal.

Appellants own a plantation consisting of 1,800 acres, of which 1,500 are in cultivation, and the power line runs diagonally across the plantation.

The court gave, over appellants' objection, the following instruction:

"The damages to which the defendants are entitled in this case are the difference between the fair cash market value of the 80-foot right-of-way before the line was constructed and the right to maintain it as established, and the value of the 80-foot right-of-way afterward. Considering that the plaintiff has the right to construct and maintain its poles and line as now constructed and to use any part of the 80-foot right-of-way for that purpose, and the defendants have the right to make any use of the 80-foot right-of-way they may see fit, so long as such use does not interfere with the construction and maintenance of said line as now constructed, in determining the damage to the 80-foot right-of-way, you will determine from the evidence the difference between the fair cash market value before the construction and the right to maintain it as established, and its fair cash market value after its construction, and allow the defendants an amount equal to the difference.

"The plaintiffs have no right in the remainder of defendants' land outside of the 80-foot right-of-way, but the defendants claim that the construction has damaged the remainder of their lands outside of the 80-foot right-of-way. If you find from the testimony that the construction of the line along the 80-foot right-of-way has damaged other lands of defendants, then you will determine from the testimony the difference, if any, between the fair cash market value of such other lands before the construction and the fair cash market value of such lands after the construction, and allow the defendants a difference, if you find there is a difference. By a fair cash market value is not necessarily meant the value at a forced sale, but its value considering the reasonable length of time in which to make the sale.

"In determining the damages, you will not speculate as to the damages, but will determine the damages from all the testimony in the case. You will not consider any benefits that may accrue to the lands by the construction of said line. In arriving at the amount of damages in this case you will not consider the possibility or probability of any danger or damage that may arise as to individuals or property from the presence of said line."

The following specific objections were made to the instructions:

To the use of the word "cash," in addition to the word "market," as adjectives qualifying the noun "value," for the reason that the instruction appears to require the jury to find the amount for which the lands could be sold for cash. (2) Because the instruction limits the damages resulting from the line as "now constructed" and "as established," thereby excluding from the jury's consideration the fact that the company has the right to add to or change its line within the limit of the right-of-way. (3) Because it excludes from the consideration of the jury the danger and damage to persons and property, whereas the possibility or probability of such danger and damage affects the market value of the land.

Certain other objections were made, which we do not think require discussion.

Appellants requested instructions to the following effect:

To find for the defendants for a sum equal to the value of the land taken by plaintiff for its right-of-way, plus the damage to the remainder of the land, if any. (2) That, though the plaintiff acquired what is technically known as an easement across defendants' plantation, it is liable to the defendants for the full value of the right-of-way as if the fee had been taken. (3) In determining the value of the land taken, the defendants are entitled to recover the highest price it would bring after allowing defendants ample opportunity to sell it.

Defendants requested an instruction numbered 6, which the court refused, and which reads as follows:

"You are instructed that defendants must obtain compensation for any property taken from them and any damage done to them by reason of the location of plaintiff's line across their plantation in this suit, and that if they fail to obtain such compensation in this proceeding they will be without remedy hereafter. When the power company has condemned a right-of-way across defendants' plantation in this suit, it has the right to occupy the whole of said right-of-way at any time its business may so demand. It has the right to exclude the defendants from said right-of-way whenever such exclusion is necessary to the operation of plaintiff's line. It has the right always to enter upon the right-of-way for the purpose of improving, repairing and building additions to its line, and it has the right to destroy any crop that may be growing thereon, if necessary, and defendants hereafter have no right in law to recover of the plaintiff any damage they may sustain by reason of the use of the right-of- way."

Instruction numbered 7 requested by defendants, which was also refused, would, if given, have charged the jury "to consider the value of defendants' land for all purposes, as shown by the evidence, including any special value it may have by reason of its situation, for the use of a power transmission line."

These objections and exceptions require a discussion of the proper measure of damages recoverable by a landowner whose lands are condemned for a right-of-way for an electric power line.

We think the court should have omitted the word "cash," as defendants requested, and should then have defined the term "market value."

Section 9 of article 12 of the Constitution provides that: "No property nor right-of-way shall be appropriated to the use of any corporation until full compensation therefor shall be first made to the owner, in money, or first secured to him by a deposit of money, which compensation, irrespective of any benefit from any improvement proposed by such corporation, shall be ascertained by a jury of twelve men, in a court of competent jurisdiction, as shall be prescribed by law."

In determining what is full compensation for property, or right-of-way through property, this court has several times defined the term "market value," one of the latest being that of Rinke v. Union Special School District, 174 Ark. 59, 294 S.W. 410, in which we approved an instruction telling the jury that "* * * the market value is what the land would be reasonably worth on the market for a cash price, allowing a reasonable time within which to effect a sale." In approving this instruction we said that "* * * just compensation is held, by a long line of our decisions, to be the actual market value of the land at the time of the institution of the condemnation proceedings, and, since the compensation was to be paid in money, no error was committed in the court telling the jury that the amount of money the school board ought to pay (for the land condemned) would be the fair cash market value at the time of the taking, stating it to be what the land would be reasonably worth on the market for a cash price, allowing reasonable time within which to effect the sale."

In other words, where one's land is taken in the exercise of the right of eminent domain, he must have full and just compensation in money, and market value is the sum "the land would be reasonably worth on the market for a cash price;" but the term cash price, as here employed, means, a sum payable in cash, as contra-distinguished from an exchange of properties. It does not mean that the entire purchase price should be paid in cash upon the delivery of a deed. A sale would be for cash within the meaning of this definition if made for a sum paid in money or for a sum paid and payable in money. For instance, A owns a farm which he is willing but not required to sell. B wishes to buy it, but is not required to do so at an excessive price. A and B agree upon a price of $ 20,000 of which B pays in money $ 10,000, with balance payable in one year, or other customary time, this balance being secured by a lien on...