Root v. Kamo Elec. Co-op., Inc.

• Decision Date: 29 January 1985
• Docket Number: 57071,Nos. 56995,s. 56995
• Citation: 1985 OK 8,699 P.2d 1083
• Parties: W.C. ROOT and Pauline Root, Appellees, v. KAMO ELECTRIC COOPERATIVE, INC., a corporation, Appellant.
• Court: Oklahoma Supreme Court

Page 1083

699 P.2d 1083

1985 OK 8

W.C. ROOT and Pauline Root, Appellees, v. KAMO ELECTRIC COOPERATIVE, INC., a corporation, Appellant.

Nos. 56995, 57071.

Supreme Court of Oklahoma.

Jan. 29, 1985.

Rehearing Denied May 29, 1985.

McMillan, Vassar & Kelly by Harry M. McMillan, Joe Sam Vassar and Albert C. Kelly, Bristow, for appellees.

Jack L. Rorschach, Vinita, for appellant.

LAVENDER, Justice:

Appellees, W.C. and Pauline Root, instituted the present action on October 5, 1979, by filing a petition alleging unauthorized entry onto appellees' land by agents, servants and employees of appellant KAMO Electric Cooperative. This petition alleged that one of appellant's survey stakes had destroyed a tractor tire of appellees' worth $661. Appellees also requested other actual and punitive damages, including the sum of $1,000 for the right of entry onto the land.

On October 29, 1979, appellant filed an answer and cross-petition. This answer alleged that the entry and survey made had been authorized by law and had been conducted pursuant to a temporary restraining order issued in a collateral suit and properly served on appellees.

Appellant's cross-petition alleged that it had the power as a rural electric cooperative, organized under the Rural Electric Cooperative Act, 18 O.S.1971, §§ 437 through 437.30, to acquire land by condemnation. Appellant sought to acquire a perpetual easement to establish and maintain a 161 KV electric transmission line across appellees' property. The easement would be one hundred feet in width and three thousand eight hundred feet long, encompassing approximately 8.8 acres of land. Appellant also sought the right to cross appellees' land to obtain access to this easement, as well as the right to cut back any trees which would endanger the transmission line.

Pursuant to appellant's cross-petition the trial court appointed three commissioners to assess the value of the easement to be condemned. The commissioners returned a report valuing the easement at $150,000. Appellant took exception to this report on the ground that one of the commissioners had a conflict of interest. Appellants' exceptions were sustained and a new set of commissioners were appointed.

The report of the second set of commissioners valued the easement across appellees' property at $12,560. This report was filed on January 16, 1980. On March 17, 1980, both appellant and appellees filed objections to the report and requested a jury trial.

Jury trial of this case commenced on May 4, 1981, and continued through May 7. At trial, evidence concerning appellant's alleged trespass and resulting damages was presented, as well as evidence concerning the proposed condemnation of the easement and its valuation.

The jury returned a verdict for appellees on May 7, 1981. The jury awarded $1,661 as damages from the trespass and valued the easement to be condemned at $80,000. Judgment was entered on this verdict.

On May 15, 1981, appellant filed a motion for new trial, alleging, among other points, error in submission of the trespass question to the jury and in the verdict on that question. In response to appellant's motion, appellees admitted that the evidence presented to the jury did not establish a value of the right of entry for which the jury had returned an award of $1,000 in the trespass action. Additionally, appellees stated that the jury had awarded $9.58 in excess of the amount of actual damages proven to have resulted from the trespass. Appellees therefore tendered a remittitur in the sum of $1,009.58.

In hearing the motion for new trial on June 3, 1981, the trial court found that there was sufficient evidence of trespass, but that there was a lack of evidence as to damages as admitted by appellees. The trial court ordered a remittitur in the amount of $1,009.58. The balance of relief sought by appellant's motion for new trial was denied. Both appellant and appellees thereafter filed petitions in error in this Court challenging the trial court's rulings. Appellees subsequently dismissed their appeal.

Appellees then filed, in the trial court, a motion to determine and tax attorney fees, litigation costs and interest on the judgment. Appellant responded, asserting that appellees were not entitled to recover any of these elements in this action.

A hearing was held on this motion on June 17, 1981. After hearing evidence of the reasonableness of the requested attorney fees and litigation expenses in the form of expert witness fees, the trial court awarded interest, attorney fees and litigation expenses to appellees. Appellant in turn appealed from this ruling. Both of appellant's appeals have been consolidated for determination at this time.

I.

Appellant's initial challenge to the judgment rendered pursuant to the jury verdict is presented on the grounds that certain of the instructions given to the jury by the trial court were erroneous and were properly objected to by appellant. In assessing this proposition we must be guided by the standard to be applied to a challenge to a jury verdict on the basis of improper instructions. As stated in the case of Missouri-Kansas-Texas Railroad v. Harper: ¹

It is well settled in this jurisdiction that a judgment will not be disturbed because of allegedly erroneous instructions, unless it appears reasonably certain that the jury was misled thereby, resulting in prejudice to the complaining party. See Commonwealth Life Insurance Co. v. Gay, Okl., 365 P.2d 149. As said in that case (at pgs. 153 and 154):

"The salient test of reversible error in instructions is whether the jury was misled to the extent of rendering a different verdict than it would have rendered, if the alleged errors had not occurred. Missouri-Kansas-Texas Railroad Co. v. Jones, Okl., 354 P.2d 415."

A.

Appellant first asserts error in the trial court's review of the pleadings to the jury. In the course of this review the trial court stated that appellant's cross-petition for condemnation had stated that the easement was taken "for the construction, operation, maintenance and reconstruction of an electric power transmission line...." Appellant maintains that the word "reconstruction" had not been mentioned in the pleadings and that its inclusion in the court's review misled the jury into believing appellant had taken broader rights than those involved in the construction, operation and maintenance of an electric transmission easement for a single transmission facility consisting of several conductor wires. Upon review, we do not believe that the jury was misled by the court's statement.

In the case of Gendron v. Central Maine Power Co., ² the court faced the decisive issue of whether the power company's "proposed replacement or maintenance program [would] extend [the power company's] use beyond the rights acquired in the 1927 easement." The 1927 easement had been granted by deed which gave the power company the right to set and maintain a line of fourteen poles. The power company sought to replace all the poles as part of a long-term maintenance program. The grantor of the easement sought to enjoin this replacement. The Supreme Judicial Court of Maine stated:

"Whether the proposed maintenance program, with its new poles, is characterized as replacement, reconstruction or construction, rebuilding, or whatever, it all comes in the end to maintenance of the pole line at the same location, that is to say the maintenance of the original pole line." ³

The word reconstruction simply means "to construct again." ⁴ It does not connote any additional construction. In observance of this fact, and the fact that the trial court admonished the jury that the summary of the pleadings did not constitute evidence in the case, we can find no prejudice to appellant, and no error by the trial court.

B.

Appellant next argues that the trial court erred in giving three instructions, concerning the taking of the right of way, which used the terms "land taken" or "property taken." Appellant maintains that an easement is not land or property and that it was therefore error for the trial court to use these terms.

We first note that a judgment will not be disturbed on appeal for allegedly erroneous instructions where, viewed as a whole, the instructions fairly present the law applicable to the issues raised by the evidence and the pleadings. ⁵ Next, we note that Black's Law Dictionary ⁶ defines an easement both as a right of use over the property of another, and as an interest which one person has in the land of another. Both aspects of the definition are applicable in the present case. Additionally, the instructions, taken as a whole, clearly indicate that the interest being taken by appellant was in the nature of an easement rather than a taking of the land in fee. We find no error in the giving of the three challenged instructions.

C.

Appellant also argues, in its conclusion to its proposition of error challenging the trial court's instructions, that the jury was confused by an instruction ⁷ which stated that the jury could consider provisions of applicable laws in assessing the damages caused appellees by the taking of the right of way easement. The confusion, states appellant, arose from the trial court's final instruction, ⁸ which stated that the court had advised the jury of the law applicable.

Considered as a whole, the challenged instruction states that Oklahoma law proscribes certain activities within the immediate vicinity of a high voltage transmission line, and that the jury might consider the provisions of applicable Oklahoma laws in assessing damages from the taking. Construing this challenged instruction with the court's final instruction, it is clear that the only "applicable law" which the jury was to consider in assessing damages was that set forth regarding the proscribed activities in the area of the high voltage lines. Accordingly, the instructions given correctly represent the law applicable to the issues raised...