Chappell v. Virginia Elec. and Power Co.

• Decision Date: 09 June 1995
• Docket Number: No. 941106,941106
• Citation: 250 Va. 169,458 S.E.2d 282
• Parties: E. Tyree CHAPPELL v. VIRGINIA ELECTRIC AND POWER COMPANY. Record
• Court: Virginia Supreme Court

Page 282

458 S.E.2d 282

250 Va. 169

E. Tyree CHAPPELL v. VIRGINIA ELECTRIC AND POWER COMPANY.

Record No. 941106.

Supreme Court of Virginia.

June 9, 1995.

Lee N. Kump (John B. Thompson, Thompson & McMullan, on briefs), Richmond, for appellant.

Joseph M. Spivey, III (John E. Holleran, Hunton & Williams, on brief), Richmond, for appellee.

Present: CARRICO, C.J., COMPTON, STEPHENSON, WHITING, LACY and KEENAN, JJ., and POFF, Senior Justice.

POFF, Senior Justice.

The principal question presented in this landowner's appeal from a judgment confirming the commissioners' report in a proceeding to condemn an easement is whether the testimony adduced and proffered by the landowner was sufficient to prove that the award of compensation for damage to the residue was unjust.

In October 1992, Virginia Electric and Power Company (Vepco) filed a petition to condemn an easement for the construction of Vepco's 230 kV Elmont-Chickahominy transmission line. The route crosses one corner of a farm owned by E. Tyree Chappell. Approximately half of the farm lies in a flood plain. The corner crossed by the easement is cleared land and, with access to State Route 637, is suitable for residential development. Chappell's farm contains 91.72 acres; the easement will cover 0.85 of an acre.

In preparation for trial, Chappell served a subpoena on Donald E. Koonce, Vepco's Director of Transmission Operations. In response to interrogatories, Chappell advised that he also planned to call another witness, Gillis G. Pratt, Jr., a real estate appraiser, who would opine that "the greatest loss to the property is the damages to the remainder ... [which] is significantly devalued, because of its proximity to the right of way of a high voltage transmission line, including the public awareness and fear of living in the vicinity of electromagnetic fields caused by such transmission lines."

Vepco filed a motion to quash the Koonce subpoena and a motion in limine to exclude "evidence of or reference to electromagnetic fields ('EMF'), any alleged link between EMF and adverse human health effects, any alleged public perception of any such link, and the effects, if any, of any such perception on property values in Hanover County." The trial court granted both motions.

Following a view of the property by the court and the commissioners, Vepco introduced the testimony of a single witness, Michael C. McCall, a real estate appraiser. McCall fixed the value of the easement at $11,900; the damage to an "80-foot strip running along the easement" at $22,155; no damage to the residue outside this "buffer strip"; and total just compensation at $34,100.

Chappell, testifying as his only witness, valued the easement at $12,750; damage to the residue at $81,750; and total just compensation at $94,500. For the record, Chappell proffered the testimony of Gillis Pratt, a real estate appraiser. Pratt evaluated the easement at $14,445; damage to the residue at $65,555; and total just compensation at $80,000.

The trial court entered judgment confirming the commissioners' report which assessed the value of the easement at $12,325; damage to the residue at $25,655; and total just compensation at $37,980.

In his challenge on appeal to the quantum of the award of damage to the residue, Chappell contends that the trial court erred in excluding his evidence of public fear emanating from the presence of high voltage power lines and the effect of that fear on the market value of his property. He relies upon language contained in Appalachian Pr. Co. v. Johnson, 137 Va. 12, 30-31, 119 S.E. 253, 258 (1923), where we said that "the commissioners could have properly taken into consideration the effect of the fear of the [transmission] line breaking down and injuring persons and property ... if the liability [for] such injury in fact depreciated the market value of the property." Chappell insists that the trial court's order excluding his evidence from consideration by the commissioners "was in contravention of precedent and resulted in unfair prejudice ... as reflected by the Commissioners' award."

We do not agree that Johnson is controlling precedent. The landowner was awarded nothing for damage to the residue; damage to the residue was not an issue before this Court; and the language Chappell invokes is obiter dicta.

Nevertheless, we need not decide whether a landowner in a proceeding to condemn an easement for an electric transmission line may be entitled to compensation for diminution in the market value of the remaining land attributable to the fears of prospective purchasers. The rule is well settled that, "[i]n every eminent domain case involving a partial taking, the measure of damages to the residue of the property not taken is the difference in the fair market value immediately before and immediately after the taking." East Tennessee Natural Gas Co. v. Riner, 239 Va. 94, 100, 387 S.E.2d 476, 479 (1990); accord Town of Rocky Mount v. Hudson, 244 Va. 271, 273, 421 S.E.2d 407, 408 (1992). And, as Chappell acknowledges on brief, "[s]peculative matters should not be considered by commissioners in determining just compensation." Applying these principles, we examine the probative value of the damage evidence Chappell vouched for the record.

Koonce, Vepco's employee, was never asked to evaluate damage to the residue, and Pratt produced no evidence of comparable sales consummated at prices allegedly diminished by public fear of electric transmission...