Claiborne Elec. Co-op., Inc. v. Garrett
| Decision Date | 27 March 1978 |
| Docket Number | Nos. 13515 and 13516,s. 13515 and 13516 |
| Citation | 357 So.2d 1251 |
| Parties | CLAIBORNE ELECTRIC COOPERATIVE, INC., Plaintiff-Appellant-Appellee, v. Felix Gordon GARRETT et al., Defendants-Appellants-Appellees. CLAIBORNE ELECTRIC COOPERATIVE, INC., Plaintiff-Appellant-Appellee, v. Mrs. Alicegene McKENZIE et al., Defendants-Appellants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Shaw & Shaw, Homer by James R. Hatch, Jonesboro, for plaintiff-appellant-appellee.
Sanders & Castete, Ltd. by Martin S. Sanders, Jr., Winnfield, for defendants-appellants-appellees.
Before BOLIN, PRICE and HALL, JJ.
To meet the increased demand for electric power in the Lake Claiborne area, plaintiff planned a ten-mile-long 69 KV transmission and distribution line of single pole construction from an already existing to a proposed electric substation. Alleging inability to obtain rights of way across defendant landowners' property by conventional agreement, plaintiff instituted these expropriation proceedings pursuant to Louisiana Revised Statutes 19:2(7).1
The trial court consolidated for trial suits against two groups of landowners, but rendered separate judgments in each case. Plaintiff and the defendants in each suit have appealed or answered the appeals from judgments which granted plaintiff servitudes and awarded defendant landowners compensation for the takings, severance damages, attorney and expert witness fees. We amend the judgments by reducing the amount awarded for severance damages in No. 13,515, and by reducing expert witness fees and increasing attorney fees in both cases; otherwise, we affirm.
The multiple issues relative to procedural and substantive matters will be discussed separately.
The trial court signed judgments in both cases on July 19, 1977. Plaintiff appealed the judgments the same day, and perfected its appeals by posting devolutive bonds of $500 on July 22. On July 26, defendant landowners filed motions for new trials. New trials were granted and the July judgments were ordered held in abeyance pending decisions; judgments identical to the July 19 judgments, with the exception of increased attorney fees in both cases, were signed on November 8. Plaintiff and defendants timely perfected appeals from the November judgments. Also, after the records were lodged in this court, defendants timely answered plaintiff's appeals from the July judgments.
Defendants moved to dismiss the original appeals of plaintiff as premature, since those appeals were taken from judgments subsequently ordered held in abeyance. We find no merit in this contention, which would penalize plaintiff for promptly perfecting its appeals.
After argument before this court the Garrett defendants (No. 13,515) filed a second motion to dismiss plaintiff's appeal, contending Claiborne Electric had already cleared a right of way across their property and "otherwise effected a complete taking." Since this motion to dismiss was not timely filed, it will not be considered. Louisiana Code of Civil Procedure Article 2161.
Plaintiff assigns as error the granting of new trials in these expropriation proceedings, contending this procedure is not available under the explicit terms of La.R.S. 19:13, as amended by Acts 1974, Ex.Sess., No. 11:
. . . The whole of the judgment, however, shall be subject to the decision of the appellate court on review under a devolutive appeal, and the delays for taking such appeal shall commence upon the signing of the judgment determining compensation. (Emphasis added)
Plaintiff argues forcefully that the sixty-day period for perfecting a devolutive appeal begins to run on the date judgment is signed in an expropriation proceeding governed by Part I of Title 19, not after the expiration of delays for new trial as provided by La.C.C.P. Art. 2087; that this variance was intended to expedite these expropriation proceedings, which are summary in nature. See La.C.C.P. Art. 2081; Columbia Gulf Transmission Co. v. C. J. Grayson, Inc., 232 So.2d 150 (La.App.2d Cir., 1970).
Assuming arguendo the new trial procedure is inappropriate, plaintiff and defendants in both suits are nevertheless before this court; plaintiff perfected appeals from the July judgments and defendants timely answered those appeals in this court. The answers present the questions of the inadequacy of both compensation and attorney fees awarded by the trial court, which is also the relief defendants sought by appealing the later judgments. We therefore choose to set aside the second judgments we amend and affirm the judgments of July 19, 1977.
Defendants timely excepted to Claiborne Electric's initiation of judicial proceedings as premature, based on plaintiff's alleged failure to adequately negotiate in good faith with the landowners. The McKenzie defendants (No. 13,516) complain of failure to negotiate about price; the Garretts (No. 13,315), about both price and the location of the right of way. The trial court found adequate negotiation and overruled the exceptions.
The record shows plaintiff's agents contacted defendants' representatives, explained the route proposed by plaintiff's engineer, and offered $300 an acre for the right of way. Plaintiff was able to purchase rights of way over the other tracts along the proposed route for $300 an acre. Plaintiff's attorney contacted both the Garrett and McKenzie representatives and discussed location. Although plaintiff did not yield from its proposed route, the testimony reveals an alternate route was considered before being rejected by the expropriating authority as not feasible.
We hold there was a good faith attempt to acquire the rights of way by conventional agreement; plaintiff was not required to increase its original offer, nor change its proposed route at defendants' request. Dixie Pipeline Company v. Barry, 227 So.2d 1 (La.App.3d Cir., 1969). The trial court was correct in overruling the exception of prematurity.
In No. 13,515, the defendants argue the requirement of Article I, Section 4 of the 1974 Louisiana Constitution, i. e., that private utilities only expropriate for a public and necessary purpose,2 places the burden on the expropriating authority to prove the particular route chosen was necessary; that, since plaintiff failed to prove it was necessary to traverse defendants' property rather than locate the transmission line elsewhere, its suit should have been dismissed.
Although the 1974 Constitution did add the word "necessary," the context of Article I, Section 4 indicates this refers to the necessity of the purpose for the expropriation, not the necessity for a specific location of the servitude. Since plaintiff has alleged and shown the need for increased electrical power in the Lake Claiborne area, defendants' contention lacks merit.
Defendants in both cases complain plaintiff did not consider the landowners' convenience in mapping out its proposed route for the transmission line. La.R.S. 19:2(7). We agree that safety and convenience are primary considerations, but find the utility's route location was within its sound discretion, not planned in bad faith, arbitrarily or unreasonably. Louisiana Power & Light Co. v. Caldwell, 353 So.2d 1343 (La.App.1st Cir., 1977).
In the Caldwell case, which defendants cite to support their contention that plaintiff here abused its discretion by ignoring the inconvenience to the landowners, the court affirmed the trial court's judgment which had varied the right of way selected by the power company. The facts of Caldwell show plaintiff utility company's proposed route would cause a major inconvenience to the landowners' farming operations, particularly crop dusting. Furthermore, the alternate route in the corridor of already existing rights of way placed no unreasonable burden on the power company. Under these circumstances, the trial court and court of appeal found the route proposed by plaintiff utility company interfered, more than was necessary, with the convenience of the landowners.
In the present case, engineering considerations largely dictated the proposed route for the transmission line. Additionally, plaintiff's general manager testified this route was viewed as least damaging to the environment and the properties traversed. A conscious effort was made to utilize open territory, rather than heavy timberland, wherever feasible. The project engineer claimed the straight line direction was best for land utilization, since it obviated the need for troublesome guy wires and supports by eliminating numerous dogleg turns.
Since plaintiff offered minimal evidence to show it considered defendants' convenience, and since defendants offered no expert testimony to support a finding of major inconvenience, we follow the general rule and choose not to disturb the expropriating authority's selection of a route. See Louisiana Power & Light Co. v. Caldwell, supra; Southwestern Electric Power Company v. Conger, 307 So.2d 380 (La.App.2d Cir., 1975).
The transmission line will cross two separate parcels of property owned in indivision by the Garrett defendants (No. 13,515). A servitude 100 feet wide will be required across both tracts, which the parties and the trial court designated "Tract No. 1" and "Tract No. 2."
The total area of the taking in Tract No. 1 amounts to 2.89 acres. All the expert appraisers agreed this tract's highest and best use was for growing timber. Estimates of just compensation ranged from $975 by plaintiff's appraiser to $1,878.50 by one of defendants' appraisers. The appraisers for defendants considered the loss from the taking at 100% of value on this and all other expropriated portions; plaintiff's expert thought the landowners retained 25% of the value of the expropriated...
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