Carolina Power & Light Co. v. Copeland

• Decision Date: 28 March 1972
• Docket Number: No. 19395,19395
• Citation: 258 S.C. 206,188 S.E.2d 188
• Court: South Carolina Supreme Court
• Parties: CAROLINA POWER & LIGHT COMPANY, Appellant-Respondent, v. Frank P. COPELAND, Jr., and The Federal Land Bank of Columbia of whom thefirst named is, Respondent-Appellant.

Page 188

188 S.E.2d 188

258 S.C. 206

CAROLINA POWER & LIGHT COMPANY, Appellant-Respondent, v. Frank P. COPELAND, Jr., and The Federal Land Bank of Columbia of whom thefirst named is, Respondent-Appellant.

No. 19395.

Supreme Court of South Carolina.

March 28, 1972.

James P. Mozingo, III, Baker & Etheridge, and Paulling & James, Darlington, for appellant-respondent.

Saleeby, Saleeby & Herring, Hartsville, and Greer & Chandler, Darlington, for respondent-appellant.

LITTLEJOHN, Justice.

On October 18, 1968, Carolina Power & Light Company, as condemnor, brought this proceeding to acquire a right-of-way across a 172 acre tract of woodland in Darlington County owned by Frank P. Copeland, Jr., landowner. The easement required was for the purpose of constructing and maintaining electric power lines. The right-of-way ran a distance of approximately 2157 feet, and varied in width from 145 to 160 feet, occupying approximately eight acres. The rights condemned included the privilege of cutting trees outside the right-of-way strip in what is referred to as the 'fall area.' The land as presently, and has been, for the most part, planted in pine trees. It is located about three miles north of the city limits of Hartsville.

The only issue for determination by the court below was the amount to be paid by the condemnor to the landowner as just compensation for the property rights acquired as contemplated by Article 1, Section 17 of the Constitution of South Carolina. After a trial before a clerk of court's jury, a trial De novo was held before a judge and jury in the Court of Common Pleas in March 1971. That trial, from which this appeal arises, resulted in a verdict of $38,000 in favor of the landowner. The condemnor moved for a new trial on several grounds. The judge overruled the motion on all grounds except that ground which challenged the verdict as being excessive. He found the verdict to be excessive, and granted a new trial unless the landowner agreed to reduce the verdict to $25,000. The landowner agreed.

After the verdict was returned the judge considered the question of interest and ordered that the condemnor pay interest to the landowner 'at the legal rate' from 'the date that the judgment on the verdict is entered' until the time that the judgment is paid.

The condemnor has appealed, challenging: (1) rulings of the judge relative to admissibility of evidence; (2) the judge's refusal to hold that the verdict was the result of caprice, passion and prejudice, and (3) the allowance of interest.

The landowner has appealed, challenging the judge's refusal to order payment of interest on the verdict from the date the land was first required on October 18, 1968, until the date the verdict is paid.

Prior to this proceeding the condemnor already owned a right-of-way across this 172 acre tract. The new right-of-way parallels the old right-of-way for approximately 400 feet and then angles somewhat westerly so as to leave between the two rights-of-way a triangular parcel of land containing approximately 14 acres.

In the court below it was the contention of the landowner that damages should be paid for: (1) taking the easement over the eight acre tract; (2) taking the right to cut trees which might endanger the power lines in the 'fall area' (about three acres), and (3) diminution in value of the 14 acre triangular tract between the two power lines. It was the contention of the landowner that none of the remainder of the 172 acre tract was damaged. As moving party in the trial, the landowner prepared and presented his case along these lines. Evidence was presented relative to these three elements.

The condemnor presented its side of the case by submitting evidence of the value of the property taken for an easement, and evidence of the diminution in value of the remainder of the entire tract.

The landowner submitted two expert witnesses who testified that the highest and best use of the land taken and/or damaged (a total of approximately 25 acres) was as rural residential subdivision property. They testified that the land was worth from $2500 to $3000 per acre prior to the condemnation; they testified that the 25 acres were worth approximately $100 per acre after the condemnation.

The condemnor's expert witnesses testified that the highest and best use of the property was its present use, growing pine trees. They placed a value of from $250 to $275 per acre on the entire tract. They asserted that the acreage within the right-of-way was reduced in value by 100%, while the acreage in the 'fall area' was reduced by 25% To 50%. It was their opinion that there was little or no damage to the remainder of the tract.

The condemnor's chief contention is that the trial judge erroneously permitted the landowner's witnesses to give testimony based upon improper considerations. These witnesses, condemnor contends, based their testimony on a theory of valuation which presupposed subdivision of the 25-acre tract and the sale of residential lots therefrom.

The heart of the question is whether the landowner's witnesses blended into their appraisals not only fair market value, but also, profits which might be brought into being by promotion and development of a rural residential subdivision.

The measure of just compensation in cases such as this is the value of the land required plus the amount of any 'special damage.' South Carolina Power Co. v. Baker, 212 S.C. 358, 46 S.E.2d 278 (1948); Code of Laws of South Carolina (1962), §§ 24--12, 58--302, 58--779.

While the landowner is entitled to compensation based upon the most advantageous use to which the land might be put, still, it cannot be presupposed that the land has already been put to such use. A careful reading of the record in this case strongly indicates that the landowner's witnesses' appraisals were not based entirely upon their estimation of the fair market value of the condemned property as it existed on the date of entry by the condemnor. Their appraisals appear to be inflated by speculation as to profits that might be realized by a developer who might subdivide and improve the property.

McCuen Morrell, one of the landowner's witnesses, testified in part as follows:

'Q. And at that time you reached that valuation based on a per lot basis, did you not?

'A. In my mind, I cannot put it out of my mind what I can do with something and the potential it has. I can't put it out of my mind. I have to have something in my mind of what I can take acres and . . .

'Q. And when you were talking about twenty-five hundred to three thousand dollars an acre, you were talking about what you could do with it after you develop it?

'A. It has the potential for that.

'Q. Would you pay him twenty-five hundred to three thousand dollars an acre to subdivide it?

'A. No, sir, but if he will turn it over to me and let me subdivide it for him, I will get him more than that for it.

'Q. After you put in the lots?

'A. Yes, sir.

'Q. And after you put in streets and after you put in water and sewage if necessary?

'A. (Witness nods).

(Counsel): He is just moving his head; the jury can't hear him.

'A. I wouldn't be putting in water and sewers, but I would be subdividing it.

By the Court:

'Q. Is that the basis you feel you could get twenty-five hundred to three thousand dollars an acre?

'A. It has that potential, Judge.

'Q. What I am interested in and what I think the jury would like to know. What was the fair market value of that property in its raw condition, undeveloped, without any plats or lots in October of 1968. If a person who simply wanted to buy a tract of land; this has got 172 acres but going on the basis you say he took the southern part with 40 acres in it, what would it be worth on an acreage basis? If a man wanted to buy land without going into any effort to subdivide or do anything else.

'A. It would depend entirely on what he was going to do with it.

'The Court: All right. I don't think this gentleman knows what the fair market value was.'

Roy Peavey, also a witness for the landowner, testified in part as follows:

'Q. Mr. Peavey, you are aware that you are valuing this property as of October 1968, are you not?

'A. Yes, sir.

'Q. In October 1968, would you have paid twenty-five hundred dollars an acre for it?

'A. I wasn't buying land, no, I wouldn't buy it.

'Q. You wouldn't buy it today for twenty-five hundred dollars?

'A. That is not my business. I don't buy it.

'Q. And what did you consider it as individual lots for rural homesites?

'A. I might say that we have handled property in this . . .

'Q. Let me ask you. I asked you a question. Did you consider it as rural homesites by lots in coming to this twenty-five hundred dollars an acre?

'A. Ultimately you have got to consider that because of its highest potential use.

'Q. And, of course, your highest potential use was as rural homesites?

'A. Correct.

'Q. And you put your evaluation on the property based on the fact of reducing it to rural homesite lots, did you not?

'A. Right.'

Appropriate motions were made to strike the testimony of the landowner's witnesses on the grounds that their testimony was too speculative and conjectural. These motions were ultimately denied, although it is clear that at one point the judge concluded that their testimony was inadmissible:

'The Court: . . . (I) do feel strongly that the testimony of both your witnesses is based on a per lot valuation, and therefore is not admissible and not a proper basis for the determination of just compensation.'

It is not unusual in the trial of condemnation cases for judges to be plagued with the duty of distinguishing reasonable fair market value of property taken, on the one hand, from profits which might be earned by skillful development and improvement of the property taken, on the other hand. The problem arises both in ruling upon admissibility of evidence and in the charge of the law to the jury. A landowner is entitled to just compensation for the...