Continental Pipe Line Co. v. Irwin Livestock Co., 5391

• Decision Date: 20 March 1981
• Docket Number: No. 5391,5391
• Citation: 25 A.L.R.4th 607,625 P.2d 214
• Parties: CONTINENTAL PIPE LINE COMPANY, Appellant (Plaintiff), v. IRWIN LIVESTOCK COMPANY, Jake Johnson, Inc., and Wyoming Farm Loan Board, State of Wyoming, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 214

625 P.2d 214

25 A.L.R.4th 607

CONTINENTAL PIPE LINE COMPANY, Appellant (Plaintiff), v. IRWIN LIVESTOCK COMPANY, Jake Johnson, Inc., and Wyoming Farm Loan Board, State of Wyoming, Appellees (Defendants).

No. 5391.

Supreme Court of Wyoming.

March 20, 1981.

Sue Davidson, Urbigkit & Whitehead, P. C., Cheyenne, signed the brief and appeared in oral argument on behalf of appellant (plaintiff).

R. R. Bostwick, Murane & Bostwick, Casper, signed the brief and appeared in oral argument on behalf of appellees (defendants).

Before ROSE, C. J., and McCLINTOCK, RAPER, THOMAS and ROONEY, JJ.

ROONEY, Justice.

Appellant instituted eminent domain proceedings pursuant to § 1-26-303, W.S.1977, ¹ for a nonexclusive easement on 22 miles of existing roads across the grazing lands of appellee Irwin Livestock Company and of appellee Jake Johnson, Inc. (hereinafter referred to as "appellees") ² for the purpose of operational and maintenance access to pipeline facilities. The jury verdict and the resulting judgment awarded appellees $46,886.40 as just compensation for the lands taken and affected by condemnation.

In appealing from such judgment, appellant words the issue for review as follows:

"Whether the Judgment with reference to the resulting damages was speculative, as well as conjectural, excessive and beyond the amount of any of the defined evidence which would justify its entry."

We find that the jury could not have made a proper award of just compensation under the evidence as presented and with the form of verdict as submitted. Accordingly, we reverse and remand for a new jury trial.

BACKGROUND

In the early 1970's, there was a discovery of substantial oil deposits beneath grazing land owned by appellees. ³ Development of the oil wells resulted in the establishment of a number of access roads over the lands of appellees for use by the entities involved in such devolpment. Appellees had granted

                nonexclusive easements for use of these roads to such entities other than appellant.  Appellant is an oil pipeline utility, and it extended its pipeline to service the oil wells on appellees' lands.  However, appellant and appellees could not reach an agreement for easements similar to those granted to the other entities and appellant began two eminent domain actions, one against appellees Irwin Livestock Company and Wyoming Farm Loan Board, and one against appellee Jake Johnson, Inc. The two actions were subsequently combined.  4 The parties reached an agreement relative to an easement for the pipeline itself, but the condemnation actions continued relative to the use of the access roads which were already in existence and subject to easement for use by other entities engaged in the oil field activities.  After a jury trial, the following verdict form was submitted to the jury
                

"VERDICT

"We the Jury, duly empaneled and sworn to try the above-entitled case, do hereby ascertain and certify compensation as follows:

"A. The fair market value of lands used as the roadways as of the 18th day of August, 1978 as actually taken and used by the Plaintiff as a non-exclusive right to use an existing road to reach the oil development area is per rod $ ___.

"B. The resulting damage, if any, to the acreage adjacent to the roadway on ranch land of Defendants (sic) properties by the Plaintiffs' [sic] non-exclusive use is determined to be $ ___ per rod."

The jury inserted the figures 0.20 in Paragraph A and the figures 6.46 in Paragraph B. Multiplying these figures by the 22 miles of access roads produces the $46,886.40 damage amount of the judgment.

MEASURE OF DAMAGES

The measure of damages for a taking in eminent domain by a pipeline company is set forth in § 1-26-303, W.S.1977 (supra at footnote 1). The pertinent portion reads:

" * * * The compensation to be made to the owners or parties interested for the lands, real estate or claims to be taken or affected, as well as all damages accruing to the owners or (of) the lands, real estate, right-of-way, or claims, taken or injuriously affected as aforesaid, with deduction or allowance for the real benefits or advantages which the owners or parties interested may derive from the construction of the road, ditch, flume, pipe, telegraph or telephone line, or necessary appurtenances shall be considered in the assessment of damages for the condemnation in these proceedings."

We have held that where there is a partial taking of property, as here, which will result in damages to the remainder not taken, the amount of just compensation to be awarded for that "taken or affected" is determined by application of the "before and after" rule, i. e. just compensation is the difference between the fair market value of the entire parcel before the taking and that after the taking. City of Rawlins v. Jungquist, 16 Wyo. 403, 94 P. 464, 468, 96 P. 144 (1908); Gillespie v. Board of Com'rs of Albany County, 47 Wyo. 1, 30 P.2d 797, 803 (1934); Colorado Interstate Gas Company v. Uinta Development Company, Wyo., 364 P.2d 655, 658 (1961); Wyoming State Highway Department v. Napolitano, Wyo., 578 P.2d 1342, 1346 (1978). See 4A Nichols on Eminent Domain § 14.232 (1979); Orgel on Valuation under Eminent Domain § 64 (1953).

The testimony in this case did not contain even one "before and after" valuation. The greater portion of the testimony of appellees' witnesses was devoted to harm caused by the intrusion of the several oil companies operating in the area. This was said to have caused appellee Irwin Livestock Company to cease the sheep aspect of its operation. Appellee Jake Johnson, Inc. did not have a sheep operation. The testimony outlined Appellees presented testimony of four witnesses. One was president of appellee Irwin Livestock Company, one was president of Jake Johnson, Inc., and the other two were neighboring ranchers. The presidents of the two appellees, as owners of the condemned lands, were entitled to give their opinions of the land values. They did not do so. They and one of the other witnesses testified to a sale of nearly "similar" land and gave the per acre price of $100.00 to $125.00 for which it was sold, the details of the sale were not set forth, and the record is not specific as to whether or not they were testifying to the same sale. The other witness testified to having bid $113.00 per acre for "similar" land without making a purchase and to having refused an offer of $87.00 per acre for "similar" land. ⁵ He gave an opinion that oil activity would reduce land value by 25 to 30 percent. None of these witnesses testified to "before and after" valuations.

problems with weight loss, bummed lambs, trampled grass, excessive wear on animals' teeth from feeding on dust-covered grass, cattle movement to follow vehicles in expectation of feed, and overgrazing in areas nonadjacent to the roads all resulting from the vehicular traffic on the roads. The problems were associated with oil activity generally and not to the road use by appellant. There was no separation of the extent or intensity of the problems between the time immediately before the date of taking by appellant, i. e., August 18, 1978, and the time after such taking.

Appellant's only witness as to value, a professional appraiser, gave an opinion as to the value of the land taken, but he did not find any lands to be injuriously affected. Accordingly, a "before and after" valuation was unnecessary and was not given by him.

Evidence relative to traffic counts at specified places on the roads was introduced. It purported to show the percentage of road usage by appellant's vehicles. The apparent purpose was to attempt to prorate the damages caused by dust, etc. resulting from vehicular traffic between appellant and the other users of the roads. Of course, considerations relative to the size and weight of the vehicles, their speed, and the damaging effect resulting from geometrical as distinguished from arithmetical progression are not included in a simple traffic count.

The "before and after" rule is particularly suitable where an easement is imposed upon an easement previously carved out of a fee, as here.

"Whenever an easement is imposed upon land already burdened with an existing easement, the fee owner is entitled to the value of his land before and after the imposition of the second easement. Thus, despite an avigation easement over specified territory, where new, noisier aircraft and increased air traffic are introduced, a new and further taking will be found. If there is no substantial difference in value his damages are nominal. * * * " 4 Nichols on...