Kentucky Hydro Electric Co. v. Woodard

Decision Date15 October 1926
Citation216 Ky. 618,287 S.W. 985
PartiesKENTUCKY HYDRO ELECTRIC CO. v. WOODARD ET AL.
CourtKentucky Court of Appeals

Rehearing Denied, with Modification, Dec. 10, 1926.

Appeal from Circuit Court, Mercer County.

Condemnation proceeding by the Kentucky Hydro Electric Company against C S. Woodard and others. From a judgment of the circuit court both parties appeal. Reversed, with instructions to grant a new trial.

Robert G. Gordon and Bruce, Bullitt, Gordon & Laurent, all of Louisville, Chenault Huguely, of Danville, C. E. Rankin and E. H. Gaither, both of Harrodsburg, for appellant.

N. L Bronaugh, of Nicholasville, Fulton & Fulton, of Bardstown, and Chas. T. Corn and Roy E. Graves, both of Harrodsburg, for appellees.

DIETZMAN J.

The appellant, Kentucky Hydro Electric Company, is a Delaware corporation which has constructed and is now operating a hydroelectric plant on the Dix river near its junction with the Kentucky river. It transmits the electricity there generated over a transmission line, which runs from the plant through Mercer and other counties until it reaches the Ohio river near Louisville, in Jefferson county. There the transmission line crosses the Ohio river into Indiana. The power thus transmitted is sold to certain local public utility companies, such as the Kentucky Utilities Company in Shelbyville, and the Louisville Gas & Electric Company in Louisville, which serve communities located along the transmission line. These local utility companies, in turn, sell the power thus bought to the communities they serve. The appellant, however, does not undertake to supply service to all individuals located along its transmission lines who may apply for such service. The transmission line consists of a series of steel towers placed at intervals of not less than 600 feet, to the top of which, on insulators, are strung the wires which carry the current. These towers are constructed of interchangeable parts so as to be easily repaired in the event of any part of them breaking or getting out of order. The power plant is equipped with circuit breakers which automatically cause the current, which courses through the wires, to be cut off the instant any wire breaks and grounds.

In securing its right of way for its transmission line through the country from its plant to the Ohio river, the appellant, at least so far as Mercer county is concerned, was able to do so by private arrangements made with all the property owners through whose land the line passes, with the exception of the appellee C. S. Woodard, who owns a farm of 480 acres. Being unable to agree with him, the appellant instituted, in the Mercer county court, this proceeding to condemn a right of way or easement through appellee's farm for its transmission line. The nature of the easement thus sought to be condemned is accurately and concisely stated in one of the instructions of the circuit court to the jury, thus:

"* * * (The) easement consists of the following rights:

(a) To construct, operate, and maintain, at the points described in the evidence, seven steel towers, each of which consists of four supports placed in the ground, interlaced together for strength, and which shall occupy a space on the ground and in the air of not greater than 20 feet square. Said towers shall be located at intervals of not less than 600 feet. On said towers there shall be constructed cross-arms, and on the cross-arms wires shall be strung from tower to tower which shall transmit electrical energy. All such wires shall be at least 20 feet above the ground at the nearest point, and the aggregate width of all lines shall not exceed 25 feet.

(b) * * * To trim or remove any and all trees on the lands of defendants (appellees), within 50 feet of the center line of said transmission lines, which might interfere with the construction, operation, repair, renewal, or maintenance thereof.

(c) * * * To prevent the landowner from erecting any building on his lands within a space of 25 feet on either side of said transmission lines.

(d) * * * To go upon the lands of the defendant for the construction, operation, repair, and maintenance of said lines, but in exercising said right, it cannot go upon any part of the lands of the defendant except within a space of 12 1/2 feet on either side of the center line of said transmission line right of way described in the evidence.

(f) The defendants retain the ownership, use, occupancy, and enjoyment of the land not actually occupied by the towers of the plaintiff, to the extent that such ownership, use, occupancy, and enjoyment may not interfere with the exercise of the rights of the plaintiff described in this instruction 1."

The appellant is to pay all damages that may be caused to fences, crops, animals, and other property of the appellees, including the land not actually occupied by the towers in constructing, operating, repairing, maintaining, and inspecting said line.

The transmission line (which has now been constructed) approximately bisects the appellees' farm, running through it for a distance of 5,821 1/2 feet. For a portion of its distance it runs along a private road on the side opposite to that on which appellees' house is located. It also runs between the appellees' house and their barn. The appellees, in the county court, took proper steps to question the right of appellant to condemn the right of way in question, but their efforts there in this regard were fruitless. The commissioners appointed by the county court reported that the land actually proposed to be taken by the appellant was worth $500, and the resulting damages to the rest of the farm was worth $450. On exceptions by both parties to this report, the case was tried in the county court where the jury found a verdict for the appellees in the sum of $12,000. The appellant paid this sum to the appellees and then prosecuted an appeal from the county court judgment to the circuit court, but took possession of the easement it sought to condemn and constructed its transmission line. In the circuit court the appellees filed an amended answer to the effect that the judgment entered in the county court had been accepted by the appellant and paid; that the appellees had accepted that payment in full satisfaction of the judgment, and appellant had taken possession of the easement and constructed its line, by reason of all of which there was no further issue between the parties to be litigated. A motion to dismiss the appeal, based on the same state of facts, was also filed by appellees. This motion was overruled, and a demurrer was sustained to the amended answer. On the trial, the jury found for the appellees in the sum of $10,000, of which $1,500 was for the land actually taken by appellant, and $8,500 for the resulting damages to the remainder of the farm. The judgment of the circuit court entered on this verdict provided that appellant should recover back from the appellees the $2,000 excess paid under the county court judgment, but did not award appellant any interest on this sum. From this last judgment, appellant prosecutes this appeal, and the appellees prosecute a cross-appeal.

We will first dispose of the cross-appeal. Appellees insist, first, that the appellant, due to the character of its business, has no authority to condemn private property for such a transmission line as it has built here, and that, if sections 1599b1 et seq. of the Statutes give appellant such authority, these sections are unconstitutional. Secondly, that, as appellant had paid to the appellees the amount of the county court judgment and had taken possession of the easement sought, it had no right to prosecute the appeal it did to the Mercer circuit court or this appeal to this court.

With regard to the first contention, appellees are now clearly estopped to question the right of appellant to condemn the easement in question. They took no appeal from the county court judgment of condemnation, but, on the contrary accepted the money paid them by appellant in satisfaction of that judgment. Further, in the circuit court, appellees took the position, as indeed they do in this court, that there was no issue pending between them and appellant, as the appellant had paid them the county court judgment, had taken possession of the easement it sought, and they had accepted the payment in full satisfaction of the controversy. In the case of Elizabethtown L. & B. S. R. Co. v. Catlettsburg Water Co., 110 Ky. 175, 61 S.W. 47, the appellee was questioning the right of the appellant to condemn a part of appellee's property. The record showed that the appellee took no appeal from the county court judgment of condemnation, but, on the contrary, withdrew from court, by an agreed order, the amount of the judgment which the appellant had paid in. No writ of possession was issued in that case, but appellant took possession of the strip of land condemned and built its structures upon it. We held that the transaction was incapable of any other construction than that the appellee agreed to take the money and let appellant take the property, for which reason appellee was thereafter estopped to question the right of appellant to condemn the land in question. In the case before us, it is true that the appellant did not pay the judgment into court, but directly to the appellees. It did take, with the acquiescence of the appellees, possession of the land without a writ of possession. The appellees accepted the payment thus made them, as they say in their amended answer and motion to dismiss the appeal in the circuit court, in full satisfaction of appellant's liability to them. They took no appeal to the circuit court. The fact that this money was not paid into court by appellant and withdrawn by appellees...

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