Loyd v. Southwest Arkansas Utilities Corp.

Decision Date21 May 1979
Docket NumberNo. 78-85,78-85
Citation264 Ark. 818,580 S.W.2d 935
PartiesRobert J. LOYD and Iris June Loyd, Husband and Wife, et al., Appellants, v. SOUTHWEST ARKANSAS UTILITIES CORPORATION, Appellee.
CourtArkansas Supreme Court

Crouch, Blair, Cypert & Waters, Springdale, for appellants.

Little, Lawrence, McCollum & Mixon by James G. Mixon, Bentonville, for appellee.

HICKMAN, Justice.

This is an appeal of an eminent domain case from the Benton County Circuit Court.

The condemning authority is the Southwest Arkansas Utilities Corporation, appellee, and the landowners are Robert Loyd and Iris June Loyd, husband and wife, appellants. Southwest condemned a one hundred foot strip of land through property owned by the Loyds to construct an electric transmission line. One tract of land consisted of about thirty acres and is owned by Mrs. Loyd; the other land consists of a 359 acre farm owned jointly by the Loyds.

There is no question raised on appeal regarding Southwest's right to take the one hundred foot strip of land nor the damages that were awarded for that taking. The only questions raised on appeal relate to Southwest's taking of an undefined right of ingress and egress over All the Loyds' property in addition to the one hundred foot right-of-way taken by Southwest. The jury awarded the Loyds one dollar for the additional easement on each tract of land.

The Loyds generally objected to the taking and tried the case on the theory that Southwest's taking of such a right of ingress and egress amounted to a taking of an easement and it should therefore pay for the full market value of all the Loyds' property. We agree with the Loyds that the judgment of the trial court must be reversed.

Southwest, as a power company, filed its complaint to condemn the Loyds' land pursuant to Ark.Stat. Ann. § 35-301, Et sequentes. These statutes grant the power of eminent domain to corporations such as Southwest to acquire rights-of-way.

Southwest's complaint, in addition to seeking a permanent one hundred foot right-of-way across the Loyds' land to construct and maintain an electric transmission line, also sought:

. . . The right of ingress and egress to, from and over said lands for doing anything necessary or useful to the enjoyment of the easement herein granted.

The Loyds, by pleadings, objected to the taking and to the court's initial order granting Southwest possession of the land and the estates as sought in Southwest's complaint.

Before trial Southwest sought an injunction against the Loyds to prevent them from interfering with Southwest's right of ingress and egress as previously granted by the court's order of possession. The trial court, by order, made the following finding:

The Court finds that it is necessary that the plaintiff (Southwest) from time to time, and at places known, and places which are presently unknown, go across, over and upon other and adjoining land owned by the defendants in order to have all reasonable ingress and egress to the land described (the hundred foot strip of land). . . . for the purpose of maintenance and operation of said transmission line and facilities constructed. . . .

The court denied in this same order the right of Southwest to use its right of ingress and egress for purposes of construction of the transmission line.

It was the Loyds' position at the trial and on appeal that the taking of the right of ingress and egress was a taking of an easement; and, according to the Constitution of Arkansas and our decisions, Southwest had to pay the Loyds the full market value of the land as though it were taken in fee. This argument is based on our decision in Baucum v. Arkansas Power & Light Co., 179 Ark. 154, 15 S.W.2d 399 (1929), and related cases. In the Baucum case we decided that when a power company acquires by condemnation a permanent right-of-way across the land of others, it becomes liable for the full value of the right-of-way as if the fee had been taken. This is based on an interpretation of the Arkansas Constitution, Article 12, § 9, which reads:

No property, nor right-of-way, shall be appropriated to the use of any corporation until full compensation therefor shall be first made to the owner, in money, or first secured to him by a deposit of money, which compensation, irrespective of any benefit from any improvement proposed by such corporation, shall be ascertained by a jury of twelve men, in a court of competent jurisdiction, as shall be prescribed by law. (Emphasis added).

We have consistently followed the Baucum case since. Arkansas Louisiana Gas Co. v. Burkley, 242 Ark. 662, 416 S.W.2d 263 (1967). (A temporary easement is valued as the fair rental of the property during the time it is used. Mobley Const. Co. v. Fox, 201 Ark. 646, 146 S.W.2d 905 (1941).)

The rationale of the Baucum case was that ordinarily a condemning authority, such as a power company, would lay a pipe line or erect a transmission line under or on the land and effectively take the land for all practical purposes. Structures could not be built over a pipe line nor under a transmission line and whatever incidental value a landowner might have in growing a crop on such land was insignificant compared to the taking. The Loyds argue Baucum applies to the easement taken in this case.

The Loyds' expert witness testified extensively as to the damages that Loyds would suffer from the imposition of such a right of ingress and egress on their property and concluded, the damages, assuming the taking was a permanent right of way as defined in the case of Baucum, supra, would be the market value of the farm.

The court struck all the testimony of the expert witness and refused all instructions offered by the Loyds supporting its theory of the case.

Southwest argued to the trial court and on appeal that the right of ingress and egress taken was merely a "secondary easement." Although the landowner must be paid for this taking of a valuable property right, payment as though it were taken in fee is unreasonable; that is because the right of ingress and egress sought would not prohibit the landowner from utilizing the property by building on it or developing it. Also, although permanent, the right of ingress and egress sought does not fit in the same category as a permanent right-of-way that is normally acquired by a power company to be used for locating a transmission line or pipe line.

The trial court adopted Southwest's position and instructed the jury that the taking was really a "secondary easement." The court's instruction reads in full:

INSTRUCTION NO. 8:

In connection with the terms, "egress" and "ingress" as it has been used in this trial you are told that under the law once an easement such as the one in this case has been acquired for a right-of-way then the condemnor, in this case Southwest Electric Arkansas Utilities, acquires a secondary easement over other adjacent land owned by the defendant. You are further told that this secondary easement may be exercised when necessary and only in a reasonable manner in...

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