Hicks v. United States

• Decision Date: 13 May 1959
• Docket Number: 13552.,No. 13551,13551
• Parties: Hunter Giers HICKS, Appellant, v. UNITED STATES, for the Use of T. V. A., Appellee. UNITED STATES of America upon the relation and for the use of the TENNESSEE VALLEY AUTHORITY, Cross-Appellant, v. AN EASEMENT AND RIGHT OF WAY OVER a TRACT of LAND 250 FEET WIDE and 2,873 FEET LONG in DAVIDSON COUNTY, TENNESSEE, Hunter Giers Hicks, Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

266 F.2d 515 (1959)

Hunter Giers HICKS, Appellant, v. UNITED STATES, for the Use of T. V. A., Appellee.

UNITED STATES of America upon the relation and for the use of the TENNESSEE VALLEY AUTHORITY, Cross-Appellant, v. AN EASEMENT AND RIGHT OF WAY OVER a TRACT of LAND 250 FEET WIDE and 2,873 FEET LONG in DAVIDSON COUNTY, TENNESSEE, Hunter Giers Hicks, Cross-Appellee.

Nos. 13551, 13552.

United States Court of Appeals Sixth Circuit.

May 13, 1959.

Cecil Sims, Nashville, Tenn., for Hunter Giers Hicks.

Thomas A. Pedersen, Asst. General Counsel, T.V.A., Knoxville, Tenn. (Charles J. McCarthy, General Counsel, Beverly S. Burbage, Attorney, Tennessee Valley Authority, Knoxville, Tenn., on the brief), for United States, for the Use of T.V.A.

Before ALLEN, Chief Judge, SCHACKELFORD MILLER, Jr., Circuit Judge, and FREEMAN, District Judge.

ALLEN, Chief Judge.

This case arises out of proceedings filed by the Tennessee Valley Authority on April 28, 1954, pursuant to 16 U.S.C. §§ 831-831dd. Notice, complaint and declaration of taking appellant's property under TVA's power of eminent domain were filed. The District Court entered an order appointing three commissioners (Section 831x) to view the property and hear the evidence as to damages. A majority of the commissioners awarded appellant $14,500; the third commissioner filed a minority report calling for an award of $7,985. Exceptions were filed to the award. The hearing de novo by three judges (Section 831x) was waived and the case was heard by the Judge of the United States District Court for the Middle District of Tennessee. The district judge entered a judgment and award reducing the commissioners' award to $7,500.

Appeals were filed by both parties.¹ Since this court on appeal is required to consider the entire record "without regard to the awards or findings theretofore made by the commissioners or the district judges" (Section 831x), we do not discuss the previous awards and findings. Appellant claims that she is entitled to an award of not less than $21,000 for the taking of her land and for incidental damages. The TVA contends that the award, both of the commissioners and of the district court, is excessive. Its witnesses' estimates of compensation ranged from $2,600 to $2,900.

Appellant's property, 129 acres, is situated 7 miles from the city limits of Nashville. It is bounded on the east by Hicks's private road, which abuts for most of its length upon Warner Park, a park of the City of Nashville. The southerly boundary of the property is formed for about three-fourths of the distance up to the point of its confluence with the Harpeth River, by the irregular course of the Little Harpeth River. A few hundred feet from the end of the western boundary the Harpeth River is crossed by a bridge which is part of Tennessee Highway No. 100, a main traveled highway which bisects the property. In the northeastern corner, which is upland lying south of Highway 100, is the residence.

The TVA has condemned an easement strip of bottom land 250 feet wide and containing 16.4 acres, beginning at the east at the private road and running roughly west across Highway 100. The easement is sought for the erection across the property of four steel towers, each 84 feet high and having 8 wires. Two towers have already been erected. The easement crosses the bottom land and cuts the farm roughly in half. The contract permits the TVA not only to place and operate its power lines and towers on the land, but also to clear out trees and undergrowth and to cut trees outside the easement strip for safety of the wires. Beyond the highway in the northeast portion the property includes a tract of land of about 16 acres, not subject to overflow by the rivers, sowed to grass and conceded to be suitable for residential purposes in small acreage lots.

Two witnesses for appellant valued the easement strip at around $600 per acre. One witness valued the entire property at $568 per acre. Two witnesses testified that the remaining 113 acres had been reduced in value $100 per acre. One witness placed the reduction at $94 to $95 and a fourth at $125 per acre. These witnesses all took into consideration the undesirability of the towers and the two power lines, each carrying 154,000 volts, each in the line of vision from the northerly residential tract as well as from every part of the property.

Each of appellant's witnesses also testified that the easement property was reduced in value because the cutting of trees and breaking down of retaining walls by TVA probably would in the future make it impossible to use the strip for the valuable corn crop grown theretofore. The witness Moss, an expert on soil erosion, testified on that subject only.

Trees were cut by TVA within the land of Warner Park. Trees were also cut out by TVA on appellant's property along the bank of the Little Harpeth River where Sugar Creek runs into the Little Harpeth. A rock wall 2½ feet high was torn down at that point. Appellant urges that the destruction of these barriers and other cutting of trees and vegetation in and near the strip will develop a slew under the highway and cause erosion in the bottom land. It was stated in effect that the current of the Little Harpeth River would be increased so that the bottom land, if used for the planting of row crops of corn, would necessarily be subject to substantial erosion. Grimes, a highly qualified witness, testified that the owner would be required inevitably to expend large amounts to keep gullies and a ditch from washing straight through the farm and that the easement strip therefore had no residual value whatever.

As evidence that this process had already begun, appellant's husband testified that in the year 1955 he removed 20 wagon loads of limbs of trees and trash from north of the place of cutting on the Hicks property. He had never found such quantities of trash and debris before. He considered that this trash had been floated down in flood time by an increased current in the Little Harpeth River. He said that, since the cutting of the trees in Warner Park, the private road which is the easterly boundary of the property had been washed out as never before. It was shown that a fence made of railroad ties with a wire mesh had been uprooted on the western end of the property. A previous locust fence at the same spot stood up for 15 years. Photographs were introduced supporting these statements.

TVA vigorously urges that the entire testimony of appellant's witnesses as to damages introduced before the commissioners is inadmissible and should be stricken out because the main element of damage described in the testimony was the claimed increased current of the river due to the cutting of trees in Warner Park, the property of the city. TVA asserts that the testimony as to this damage is not separable from the damage estimated for other items and must be entirely excluded. The District Court reduced the award of the commissioners on the ground that this testimony should have been stricken out. TVA relies upon a line of cases from California and Illinois, of which San Diego Land & Town Company v. Neale, 88 Cal. 50, 25 P. 977, 11 L.R.A. 604, is typical. As therein held at page 980, of 25 P.:

"Appellants contend that the court did not err in refusing to strike out the testimony objected to, because the witnesses were competent to express an opinion as to value, and the reasons for such opinion can only affect the weight to be given to their testimony; but we think that where a witness bases his opinion entirely upon incompetent and inadmissible matters, or shows that such matters are the chief elements in the calculations which lead him to such conclusions, it should be rejected altogether."

We are not bound by the decisions below (Section 831x). We consider that this holding has no application here. TVA's attack upon the testimony of appellant's witnesses does not accurately reflect the evidence. By its cross-examination TVA greatly emphasized the subject of erosion of the bottom land but, fairly considered, this was only one feature of the testimony of the witnesses asked to be stricken out. In general the testimony that erosion would be caused in the bottom land and would force appellant not to plant corn there was based, not only upon the cutting of trees by TVA in Warner Park, but also upon extensive cutting of trees, clearing of vegetation, and uprooting of rock walls within appellant's property. Moreover, bearing in mind that the value of land cannot be arrived at with mathematical accuracy, and can only be fairly approximated (Cf. United States ex rel. for Use of Tennessee Valley Authority v. Reynolds, 5 Cir., 115 F.2d 294, 296), we think the evidence was competent. Evidence for appellant was not based entirely nor mainly upon the cutting of trees in Warner Park, nor even on appellant's land. Also, the estimates of damage to the rest of the property were entirely separable as between the damage suffered by the strip and the incidental damage. The objection goes to the weight rather than to the admissibility.

Grimes testified that because of the creation of a slew and erosion of the bottom land the 16.4-acre easement strip would be a total loss to appellant. However, Grimes did not limit his testimony to the item of erosion. He also figured as a separate item the incidental damage to the entire property based principally on the erection and operation of the towers and power lines. He said that the upland on both sides of Highway 100 was exceptionally situated for suburban development by its desirable location, being so near Nashville and adjoining Warner Park. He considered that these desirable features were affected in...