Omni Farms, Inc. v. Arkansas Power & Light Co., 80-137

• Decision Date: 10 November 1980
• Docket Number: No. 80-137,80-137
• Citation: 271 Ark. 61,607 S.W.2d 363
• Court: Arkansas Supreme Court
• Parties: , 21 A.L.R.4th 758 OMNI FARMS, INC., Appellant, v. ARKANSAS POWER & LIGHT COMPANY, Appellee.

Page 363

607 S.W.2d 363

271 Ark. 61, 21 A.L.R.4th 758

OMNI FARMS, INC., Appellant, v. ARKANSAS POWER & LIGHT COMPANY, Appellee.

No. 80-137.

Supreme Court of Arkansas.

Nov. 10, 1980.

Rehearing Denied Dec. 8, 1980.

Thurman & Capps, Ltd., North Little Rock, for appellant.

House, Holmes & Jewel, Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

In August, 1978, the Public Service Commission authorized the appellee, Arkansas Power & Light Company, to construct a generating plant in Independence county and about 170 miles of connecting high-voltage transmission lines to points in Pulaski and Lonoke counties. Pursuant to that authorization A.P. & L. brought this condemnation suit 18 months later to acquire a 180-foot right of way across a cattle ranch owned by the appellant, Omni Farms, Inc., in Lonoke county. In its answer Omni asked that the action be dismissed because, first, A.P. & L. had allegedly made no effort to negotiate a settlement with Omni before filing suit, and second, "the laws relied upon by Plaintiff are unconstitutional on due process grounds."

After a preliminary hearing the trial court rejected both defenses, approved the condemnation, and ordered a $15,000 deposit as the estimated value of the 17.14 acres being taken. The court, however, to avoid a possibility of irreparable injury to Omni, stayed the judgment pending this appeal. The case has not yet been tried on the main issue of the amount of compensation to be awarded. Our jurisdiction rests on Rule 29 (1)(c).

At the outset, A.P. & L. asks that the appeal be dismissed for want of an appealable order. The record indicates that the proposed transmission lines will be strung on tall metal towers, embedded in concrete. At the oral argument counsel for A.P. & L. conceded that if the construction is allowed to proceed, it will be impossible in the event of a reversal for Omni's land to be restored to its previous condition. We conclude that this is one of the comparatively rare instances, foreseen by some of our earlier opinions, in which an order must be regarded as appealable because otherwise the order would divest a substantial right in such a way as to put it beyond the power of the court to place the party in its former condition. See Johnson v. Johnson, 243 Ark. 656, 421 S.W.2d 605 (1967); Batesville v. Ball, 100 Ark. 496, 140 S.W. 712, Ann.Cas.1913C, 1317 (1911).

On the merits, Omni first argues that the controlling statute mandatorily requires the condemnor to negotiate with regard to the purchase price before bringing suit to condemn and that a failure to negotiate is a jurisdictional defect so fundamental as to require dismissal of the action.

We do not agree. Unquestionably the legislature is free to require preliminary negotiation as a condition precedent to the exercise of the power of eminent domain. Courts elsewhere have frequently construed as mandatory various statutes contemplating such preliminary negotiations and have sometimes indicated that a condemnation order entered without prior negotiation is absolutely void for want of jurisdiction. The cases have been extensively collected in Nichols' Eminent Domain, § 24.62 (rev. 3d ed., 1976), and need not be reviewed here.

The language of the particular statute, however, must be considered. Our General Assembly has said, for example, that in certain condemnation actions brought by state colleges the board of trustees must first "exercise every reasonable effort to obtain the property in question at a reasonable price by negotiation, and the Trial Court shall so find." Ark.Stat.Ann. § 80-3318 (Repl.1980). If language such as that were now before us, Omni's argument would have greater force.

The statute controlling this case is vastly different from that just quoted. It provides that whenever a utility company has obtained from the Public Service Commission the required certificate of environmental compatibility and public need, and the utility "is unable to reach agreement with the owner of land ... to construct, operate, maintain and obtain reasonable access to the major utility facility, it may acquire the same by the exercise of the power of eminent domain." Ark.Stat.Ann. § 73-276.15 (Repl.1979). It was evidently the intention of the legislature to require preliminary negotiation, which has often proved to be immensely beneficial to both parties when a condemnation suit is being considered. We accordingly hold, in harmony with the great weight of authority, that the statute now in question imposes a mandatory duty on the utility company to negotiate.

It does not follow, however, that the duty is necessarily of such indispensable importance as to be jurisdictional. By analogy, many steps required by the election laws are mandatory, but noncompliance does not destroy the validity of the election unless the statute expressly so declares or unless the particular provision affects an essential element of the election, as by obstructing the free and intelligent casting of the vote. Orr v. Carpenter, 222 Ark. 716, 262 S.W.2d 280 (1953).

The statute now in question does not expressly declare preliminary negotiations to be jurisdictional, nor in our opinion does it do so by implication. The opportunity to negotiate does not end with the filing of the suit, especially as several months may pass before the case is set for trial. Moreover, if negotiation were a jurisdictional requirement, it would follow that a condemnation judgment entered after a long and hotly contested trial would be void if it were later shown that the condemnor failed to negotiate. The wording of the statute would have to be decidedly more imperative than it is before we could regard negotiation as jurisdictional.

The trial court's finding that A.P. & L.'s negotiation procedure met the requirements of the law is not clearly erroneous. A.P. & L.'s appraiser testified that the value of the 17.14 acres being taken for a right of way was $875 an acre, making a total of about $15,000. Another witness for A.P. & L. testified that he had authorized settlement offers through the company's attorneys; the trial court took notice that the negotiations had not been successful. William Fay Wright, Omni's president, testified on cross examination that on the morning of the hearing Omni's attorney had informed Wright of an offer of $15,000. "When I heard $15,000, it was so ridiculous he (the attorney) wouldn't bring anything like that to me. It would only tend to upset me." He said the offer would not be accepted under any circumstances. Negotiations need not be carried farther than to demonstrate the impossibility of agreement, which may be shown by the landowner's willingness to sell only at a price which the condemnor deems excessive. Kerr v. Raney, 305 F.Supp. 1152 (W.D.Ark.1969); see also Nichols, supra. That appears to have been the situation in the case at bar; so no error is shown.

Omni's alternative ground for dismissal is its assertion that the governing statute denies due process of law. The statute is Act 164 of 1973, amended by Act 866 of 1977. Ark.Stat.Ann. §§ 73-276.1 through -276.18. Omni's argument is really directed not so much to the terms of the statute as to Omni's failure to receive sufficient notice of the Public Service Commission proceeding by which A.P. & L. was authorized to cross...