Emmons v. Utilities Power Co.

• Decision Date: 06 February 1928
• Citation: 141 A. 65
• Parties: EMMONS v. UTILITIES POWER CO.
• Court: New Hampshire Supreme Court

141 A. 65

EMMONS

v. UTILITIES POWER CO.

Supreme Court of New Hampshire. Grafton.

Feb. 6, 1928.

Transferred from Superior Court, Grafton County; Burque, Judge.

Petition by E. Maria Emmons against the Utilities Power Company. Verdict for plaintiff. Transferred upon plaintiff's exceptions. New trial.

Petition, under P. L, c. 218, § 36 et seq., for the assessment of damages to the plaintiff's land overflowed by the defendant's dam built across the Pemigewasset river in the town of Bristol. The land is situated on the westerly bank of the river and extends for a distance of over a mile thereon. In that distance there is a fall of between 22 and 26 feet. The dam with flash boards is 55 feet high, and raises the level of the water along the entire length of the plaintiff's land. It appears to be conceded that the defendant owned the site of its dam and all of the riparian land affected by the flowage except the plaintiff's. Trial by jury and verdict for the plaintiff for $5,000, to which interest was added from the date of flowing. Transferred by Burque, J., upon the plaintiffs exceptions to the exclusion of evidence, to the charge, and to refusals to charge.

Winthrop Wadleigh, of Milford, Clarence G. Swain, of Bristol, and Robert W. Upton, of Concord, for plaintiff.

Murchie & Murchie, of Concord and Alexander Murchie, of Concord, for defendant.

SNOW, J. At the trial it was claimed by the plaintiff, and denied by the defendant, that the plaintiff's property had a market value as an undeveloped water power. The defendant conceded that it was the plaintiff's right to establish such a value, if she could, by proof that her property was capable of development wholly upon her own land, but objected to the admission of evidence of its market value for development in conjunction with other properties, or with other power which could be utilized only through the intervention of a third party. The court accepted the defendant's theory, on which, accordingly, the trial proceeded and the verdict was rendered.

Under, the adopted law of the trial, the court, subject to the plaintiff's exception, excluded evidence offered to show the presence of falls above and below her land in conjunction with some or all of which the fall upon her land was capable of commercial development by means of the defendant's dam, or by means of dams above or below (but not upon) her land; that the entire drop of the river within a short distance was in excess of 100 feet; that the location of her property in the midst of these falls and its availability for use in conjunction therewith necessarily entered into and enhanced its market value; that the fair market value of her property depended to a substantial degree upon its relations to such other properties, and was materially greater for development therewith than when considered as a unit by itself; that, taking into consideration the whole situation, its development by itself and its use with the falls included in the defendant's development, the market value of her property was between $25,000 and $40,000.

The plaintiff complains of the law of the trial, which is embodied in the charge as follows:

"Whether the plaintiff has a valuable water privilege in connection with the use of her land depends upon whether she could have used this privilege upon her land independently of any other land or other privileges owned by others along this stream, either across, above or below her land. In other words, this means that if you find upon all the evidence in the case that she could have developed and used to advantage and profit the power that could be obtained from her half of the stream along her property, either for manufacturing purposes, or for the production and sale of hydroelectric power by itself, or in conjunction with such an auxiliary steam plant which the plaintiff could construct to make the proposition valuable, if such could make it so, according to the plaintiff's claim, or, again, if you should find that the undeveloped water power for half of the stream along her property, independently and in and of itself, had a market value at the time the defendant took it, then you are at liberty to assess damages therefor. You are not, however, to consider whether the plaintiff's privilege had any value dependent upon its development in connection with the whole width of the stream, or with the water in the river above, or below her land, or also upon her ability to buy auxiliary power from some other plant. In other words, you are not to assess any value here the existence of which depends upon the ability to use the property of others and their will to have the plaintiff do so."

The plaintiff excepted to these instructions, and to the refusal of the court to charge, conversely, that in assessing damages for the taking of the plaintiff's undeveloped water power the jury were not to be restricted to a consideration of its value for development upon her property apart from other available water power, if any, upon the stream.

The plaintiff also excepted to the denial of requests, in substance and so far as the parties seem to be at issue, that in assessing her damages the jury should consider: (2) Whether the plaintiff's undeveloped water power, if any, was available for use in conjunction with the whole power upon the stream in this locality; (4) whatever in its location, surroundings, and appurtenances contributed to its availability for valuable uses; (5) the adaptability, if any, of the plaintiff's land affected by the flowage for the purposes for which it was taken; (6) its value in all its parts and elements, its capabilities for any purposes for which it was adapted or likely to be used, and all its relations to the whole water power; (7) its worth in the market, viewed with reference to the uses to which it is adapted—that is, its worth from its availability for valuable uses; (8) the relation of the plaintiff's undeveloped water power, if any, to the whole water power upon the stream, and its availability for use as a part of such power, as bearing upon its market value; (10) the natural availability, by reason of its location on the river, of the plaintiff's land for the development of water power, based upon its natural availability for valuable use in conjunction with other water power upon the stream.

An undeveloped water power is a property right inherent in the ownership of the adjacent riparian land, for the value of which, if any, the owner is entitled to compensation when it is taken under the Flowage Act (Pub. Lsrws 1926, c. 218, § 27 et seq.). Swain v. Pemigewasset Power Co., 76 N. H. 498, 502, 85 A. 288. The plaintiff's damage for its taking is measured by the difference between the value of her land after the defendant had flowed it and what it would have been worth on the date of its taking (Hadlock v. Jaffrey, 75 N. H. 472, 473, 76 A. 123) if the defendant's dam had not been built (Wright v. Pemigewasset Co., 75 N. H. 3, 6, 70 A. 290; Philbrook v. Berlin-Shelburne Co., 75 N. H. 599, 74 A. 873); that is, the difference between the value of the land free from, and subject to, the rights taken (Lancaster & Jefferson Electric Light Co. v. Jones, 75 N. H. 172, 182, 71 A. 871; Swain v. Pemigewasset Power Co., supra). In the ascertainment of the value of the property invaded, she is entitled to have it appraised for the most profitable purpose, or advantageous use, to which it could be put on the day it was taken. Barker v. Publishers' Paper Co., 78 N. H. 571, 575, 103 A. 757, L. R. A. 1918E, 709; Philbrook v. Berlin-Shelburne Co., supra. It appears to be conceded that flowage is the most profitable use to which the plaintiff's property can be put.

There is no rule of law that the value of land taken by eminent domain is measured solely by its capacity for valuable uses in and of itself without regard to such external elements, if any, as would probably have affected the judgment of a purchaser at a fairly conducted sale. Mississippi & R. River Boom Co. v. Patterson, 98 U. S. 407, 408, 25 L. Ed. 206; Little Rock J. R. Co. v. Woodruff, 49 Ark. 381, 5 S. W. 792, 4 Am. St. Rep. 51, 58. On the contrary this court has said that "in assessing the plaintiff's damages, the question was, What was the fair market value of the land at the time when it was taken by the defendants? In determining that question, whatever in its location, surroundings, and appurtenances contributed to the availability of the land for valuable uses was proper evidence to be considered by the jury in estimating its salable character, and ascertaining its market value"; which the court proceeded to define as "the sum it could have been sold for, on a certain day, at a fairly conducted sale attended by bidders, each duly understanding all such matters of legal right, upon facts then known to him, as would induce him to buy, and affect his judgment in determining what price he would offer." Low v. Railroad, 63 N. H. 557, 562, 3 A. 739, 743.

"The fact that the most profitable use could be made only in connection with other land is not conclusive against its [adaptability thereto] being taken into account, if the union of properties necessary is so practicable that the possibility would affect the market price. But what the owner is entitled to is the value of the property taken, and that means what it fairly may be believed that a purchaser in fair market conditions would have given for it in fact—not what a tribunal at a later date may think a purchaser would have been wise to give, nor a proportion of the advance due to its union with other lots." New York City v. Sage, 239 U. S. 57, 61, 36 S. Ct. 25, 26 (60 L. Ed. 143).

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