Otter Tail Power Co. v. Malme, 7766
| Decision Date | 29 September 1958 |
| Docket Number | No. 7766,7766 |
| Citation | 92 N.W.2d 514 |
| Parties | OTTER TAIL POWER COMPANY, a corporation, Plaintiff and Respondent, v. Ole MALME and Josephine Malme, his wife, Jubert Malme; Harry Stern, a single man, Joseph B. Stern and Della Stern, his wife, Dale Slotten, Walter Williams and Clarys Williams, his wife, Philander A. Hodgson and Elaine O. Hodgson, his wife, Valeria Nunns, a widow, Harold Keim; Alfred V. Althoff and Ada Althoff, his wife; Julius Smith and Minnie Smith, his wife, Irvin Smith; Llewellyn Wm. Kube and Allene D. Kube, his wife, F. B. Downing; August Wefel and Mathilda Wefel, his wife; Melvin Wefel and Iona Wefel, his wife, Orville Wefel; H. H. Pfister and Rita Pfister, his wife, Jack H. Pfister and Jean Pfister, his wife, Elmer Affield, Eugene Staber, The Federal Land Bank of Saint Paul, a corporation, The Equitable Life Assurance Society of the United States, a corporation, H. W. Snowden and George F. Reeder, Defendants, and Ole Malme and Josephine Malme, his wife, Jubert Malme; Harry Stern, a single man, Joseph B. Stern and Della Stern, his wife, Dale Slotten; Walter Williams and Clarys Williams, his wife; Philander A. Hodgson and Elaine O. Hodgson, his wife; Alfred V. Althoff and Ada Althoff, his wife; Julius Smith and Minnie Smith, his wife, Irvin Smith; Llewellyn Wm. Kube and Allene D. Kube, his wife; August Wefel and Mathilda Wefel, his wife, Melvin Wefel and Iona Wefel, his wife, Orville Wefel; H. H. Pfister and Rita Pfister, his wife, Jack H. Pfister and Jean Pfister, his wife, Elmer Affield, Eugene Staber, Defendants and appellants. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. In this state the legislature has seen fit to take it out of the power of the person or corporation in an eminent domain action to settle the question of necessity, and entrust the determination of that issue to the judicial branch of the government.
2. While in this state the necessity for the taking of property for a public use is a judicial question, nevertheless much latitude is given to the corporation vested with the right of acquiring property by eminent domain both in the selection and location of the route to be taken and in the taking of the particular property.
3. Where the evidence relating to the selection of a route for a power transmission line discloses that the corporation vested with the right of eminent domain exercised in good faith its best judgment in the selection of a route for its line, and the easements sought to be taken therefor, and the selection of the same is compatible with the greatest public benefit and the least private injury, the finding of necessity for the taking of the route by the trial court will be sustained on appeal.
4. One of the cardinal principles of the law of easements is that the dominant owner has the right of access to make repairs and enter upon the servient estate for that purpose at all reasonable times.
5. The right of access for maintenance and repairs of an electric power transmission line, where such right is not specifically described, applies equally to easements procured by condemnation as well as by grant.
6. The rights of an easement extend to all uses directly or incidentally conducive to the advancement of the purpose for which the right of way was acquired.
7. Since maintenance and repair of an electric power transmission line are essential to the efficient operation thereof, an easement for the location of the line carries with it, as an incident to the full, fair, reasonable and proper use thereof, the right of ingress and egress.
8. The sufficiency of the qualifications of an expert witness offered in an action of eminent domain rests largely in the discretion of the trial court.
9. The denial of a motion for a new trial does not constitute error where the evidence in the case is conflicting and is ample to sustain the verdict.
10. In an eminent domain action where the plaintiff has established the necessity for the location of a route for a power transmission line and has taken easements for the construction thereof, and paid into court the amount of the damages ascertained by a jury, pursuant to Section 32-1529 NDRC 1943, the trial court is authorized under the terms of Section 32-1534 NDRC 1943 to grant possession of the property taken pending appeal.
Robert L. Eckert and Johnson & Milloy, Wahpeton, for appellants.
Bayard Lewis, Wahpeton, and Field, Arvesen & Donoho, Fergus Falls, Minn., for respondent.
This is an action in eminent domain brought by the plaintiff under Chapter 32-15 NDRC 1943, in which it seeks perpetual easements for the construction of a power transmission line, extending from north of Wahpeton, North Dakota, to near Hankinson, North Dakota. The action covers 9 separate parcels of land owned by the defendants: Parcel No. 1, Ole Malme and Josephine Malme, his wife, with Jubert Malme in possession of the property; Parcel No. 2, Harry Stern a single man and Joseph B. Stern and Della Stern, his wife, with Dale Slotten in possession of the property; Parcels 3 and 4, Walter Williams and Clarys Williams, owners, subject to a contract for deed to Philander A. Hodgson and Elaine O. Hodgson, his wife, to a part of the property, another part of which is in possession of Harold Keim; Parcel No. 5, Alfred V. Althoff and Ada Althoff, his wife; Parcel No. 6, Julius Smith and Minnie Smith, his wife, Irvin Smith in possession of the property; Parcel No. 7, Llewellyn Wm. Kube and Allene D. Kube, his wife; Parcel No. 8, August Wefel and Mathilda Wefel, his wife, subject to a contract for deed to Melvin Wefel and Iona Wefel, his wife, with the contract for deed owners in possession; Parcel No. 9, August Wefel and Mathilda Wefel, his wife. They are also owners of another parcel of property in the possession of Orville Wefel; Parcel No. 10, owned by H. H. Pfister and Rita Pfister, his wife, and Jack H. Pfister and Jean Pfister, his wife, with Elmer Affield and Eugene Staber in possession of the property.
The plaintiff alleges it corporate existence, and that it has the right to do business in the State of North Dakota; that it is engaged in the business of generating, transmitting, distributing and furnishing electrical energy for pubic use for light, heat, power and related uses; that it is authorized to exercise the right of eminent domain under Chapter 32-15 NDRC 1943 as amended; that it is necessary and convenient for the plaintiff for the transaction of its public business to acquire by condemnation proceedings, easements or rights of way for a power transmission line to run generally from near the City of Wahpeton to a point north of the City of Hankinson, North Dakota, which will operate at approximately 115,000 volts and will be connected with and become a part of an interconnected network of transmission lines owned and operated by the plaintiff, and that it is in turn interconnected with other public utilities, rural cooperatives and the Bureau of Reclamation. The complaint then alleges the general location, route and termini of the segment of the power transmission line involved, and states that it has been surveyed and located in a manner which will be most compatible with the greatest public benefit and the least private injury. The easement sought from each one of the defendant owners is described as follows:
'The perpetual easement and right-of-way for the construction, operation, maintenance, repair, or removal, of an electric power transmission line, together with the necessary two-pole structures, cross-arms, wires, insulators, guy wires, anchors, and other necessary equipment in connection therewith; together with the right to cut down or trim any trees along said transmission line necessary to keep the wires thereof clear by 30 feet and to remove any trees which could fall within 15 feet of said transmission line; and also the right of ingress and egress over the most feasible and reasonable route for the purposes of said easement.' (Emphasis supplied.)
By motion that was granted, the complaint was amended to eliminate the words 'guy wires and anchors' from this general description of the easements.
The complaint then sets forth the description of the land on which the easements are located, by describing them by governmental subdivisions in quarter sections, 80 or 40 acre tracts, and then described the number and location of each H-frame structure to be located on each parcel of land owned by the various defendants. These H-frame structures consist of two wooden poles set in the ground thirteen feet apart from the center of one pole to the center of the next. The cross-arms of each two pole structure are to be 26 feet long. The transmission wires are suspended in the air at a minimum height of about 26 1/2 feet, supported by the two-pole structures and running from one two-pole structure to the next two-pole structure throughout the transmission line. It is specifically alleged in the complaint that an easement only is sought, and that the owner of the fee shall have the full right to the use and enjoyment of the land, 'except only as it may be inconsistent with said easement sought to be condemned.' After the general description of the easement sought to be condemned, and hereinbefore set forth, the detailed facts as to each parcel of land are alleged. It is unnecessary to set them all forth herein. They are all similarly described. To illustrate the manner of description used throughout the complaint with reference to the ownership of each parcel involved, we will merely set forth the description of Parcel No. 1, owned by the defendants, Ole and Josephine Malme.
'There is hereinafter alleged, with reference to each Parcel over which an easement is sought to be condemned herein, the following facts: The legal description of each Parcel; the limitation in number of two-pole structures to be located on each Parcel; the specific location of...
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