Grand River Dam Auth. v. Martin, Case Number: 30534

• Court: Oklahoma Supreme Court
• Writing for the Court: HURST, J.
• Citation: Grand River Dam Auth. v. Martin, 192 Okla. 614, 138 P.2d 82, 1942 OK 406 (Okla. 1942)
• Decision Date: 01 December 1942
• Docket Number: Case Number: 30534
• Parties: GRAND RIVER DAM AUTHORITY v. MARTIN

1942 OK 406

138 P.2d 82

192 Okla. 614

GRAND RIVER DAM AUTHORITY v. MARTIN

Case Number: 30534

Supreme Court of Oklahoma

Decided: December 1, 1942

Syllabus

¶0 1. EMINENT DOMAIN--Proceedings by power company to condemn perpetual easement across farm--Rulings on evidence held not erroneous.

Record examined, and held, that the admission by the trial court of certain evidence offered by defendant, and the rejection of certain evidence offered by plaintiff, was not error.

2. SAME-- Measure of damages for perpetual and unlimited easement for power line across farm.

Where a power company seeks by condemnation proceedings to acquire a perpetual easement upon a strip of land 100 feet wide for the erection and maintenance of its poles, lines, guy and brace poles, and fixtures, and does not specify the number or location of poles or wires to be erected or the nature or amount of fixtures to be placed thereon, and does not reserve to the landowner any rights in said strip, the measure of the damages to the landowner is the fair market value of the land embraced in the strip upon which the easement is sought, and the damage to the remainder of the land by reason of the appropriation of the strip.

3. TRIAL--Sufficiency of instructions as a whole.

Where the instructions as a whole correctly state the law applicable to the facts, the failure to include all the applicable law in a particular instruction is not error.

4. EMINENT DOMAIN-- Verdict for damages for perpetual and unlimited easement for power line through bottom farm held not excessive.

A verdict for $400 for a perpetual and unlimited easement over a strip of land embracing 4 1/2 acres of bottom land of exceptional fertility, and $250 for damages to the remainder of the farm traversed by the strip taken, held not excessive under the evidence.

Appeal from District Court, Muskogee County; Enloe V. Vernor, Judge.

Edward P. Marshall and Q. B. Boydstun, both of Vinita, for plaintiff in error.

Richard Martin and Claude Garrett, both of Muskogee, for defendant in error.

HURST, J.

¶1 This is a proceeding brought by Grand River Dam Authority to condemn an easement across a farm belonging to Martin. The Authority appeals from the judgment for Martin on the verdict.

¶2 In its petition the Authority asked for a perpetual easement 100 feet wide and 1,980 feet long across the 90-acre farm of Martin, "to erect, operate, and maintain a line or lines of poles, wires and fixtures for the transmission of electric energy." Among other incidental rights it sought to acquire was the right of ingress, the cutting down, removing or trimming of trees on the strip, and the right to set guy and brace poles and anchors, and to attach all necessary guy wires. The number and location of the poles, the number and height of the wires, the number of guy wires and guy brace poles, and the character or amount of fixtures to be placed on the land were not specified in the petition, nor were any rights specifically reserved to Martin in the strip. The right of way traversed the farm, 20 acres lying east of the right of way, and the remainder lying west of it. After the commissioners had made their award, the Authority paid the money into court, and at the time of the trial had constructed a power line on the right of way. The judgment of the trial court gave the Authority the rights asked for in its petition.

¶3 The Authority argues eight propositions in its brief. These may be grouped and reduced to three, (1) errors in the admission and rejection of evidence, (2) errors in giving and refusing instructions, and (3) that the verdict is contrary to the evidence and excessive.

1. a. It is contended that Martin should not have been permitted to show the amount of rents and income received from the farm for one particular year. After Martin had testified that his rents were from $7 to $10 per acre, he was permitted to testify that in one very dry year the land produced a good crop of corn. Counsel argue that such evidence is inadmissible, and does not tend to establish fair market value, citing City of Cushing v. Pote, 128 Okla. 303, 262 P. 1070, and Grand River Dam Authority v. Bomford, 188 Okla. 512, 111 P.2d 182. In the case first cited, it was held that testimony as to crops produced was admissible to explain the market value testified to. In the Bomford Case it was held that it was not reversible error to refuse to admit evidence of rentals received under the circumstances there shown. It was not error to permit Martin to show the rentals received and crops produced as the basis for his estimate of market value. The fact that he was permitted to testify to the production for one year simply went to show its fertility under adverse conditions, which would have some bearing on its market value. There was no effort to confine the testimony to the crops raised during that particular year. We think this contention is without merit.

b. It is next contended that Martin should not have been permitted to prove the cost of fencing off the right of way from the rest of his farm. The court did not instruct the jury that it could take into consideration the cost of fencing in fixing the amount of recovery. Furthermore, one witness for the plaintiff fixed the amount of depreciation of value by reason of the taking at more than the amount of the verdict. Several witnesses for the defendant fixed the value of the land taken and the damage to the remainder at considerably more than the amount of the verdict. Assuming, without deciding, that the evidence complained of was not admissible, we think its admission constituted harmless error.

c. It is argued that the trial court erroneously permitted a witness to testify that he knew of another power line breaking upon one occasion, and that the break caused certain damage. The line for which the right of way was sought to be condemned was to carry 110,000 volts of electricity, and the evidence was evidently offered for the purpose of showing that such lines are dangerous, and that the maintaining of such a line across the farm injuriously affected the market value thereof. The danger attending the presence of wires carrying high voltage is a matter of common knowledge. While the Authority cites a number of cases in support of its contention, this court, in Public Service Co. of Oklahoma v. Raburn, 162 Okla. 81, 19 P.2d 167, and Oklahoma Gas & Electric Co. v. Kelly, 177 Okla. 206, 58 P.2d 328, held that such evidence is competent as bearing on the depreciation in the market value of the property over which the easement is taken and the power line is constructed.

d. The Authority also argues that the trial court refused to permit it to show by its engineer that the construction of its line was safe and non-hazardous. But the offer of proof made by the Authority, and which was refused by the trial court, went to the possibility of more than one line being placed on the right of way rather than to the safety appliances used in case the wire broke. No specific question as to appliances for rendering the line harmless in case it broke was propounded to the witness. The error, if any, may not be reviewed here in the absence of a specific question and an offer of proof. Fife v. Adair, 173 Okla. 234, 47 P.2d 145. The witness was permitted to testify as to precautions used to guard against damages due to lightning, and that the Authority was subject to the safety regulations of the Federal Power Commission and of the

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