Southern Ind. Gas & Elec. Co. v. Gerhardt

• Decision Date: 30 January 1961
• Docket Number: No. 29921,29921
• Citation: 241 Ind. 389,172 N.E.2d 204
• Parties: SOUTHERN INDIANA GAS AND ELECTRIC COMPANY, Appellant, v. John A. GERHARDT, Edith Gerhardt, Appellees.
• Court: Indiana Supreme Court

Page 204

172 N.E.2d 204

241 Ind. 389

SOUTHERN INDIANA GAS AND ELECTRIC COMPANY, Appellant, v. John A. GERHARDT, Edith Gerhardt, Appellees.

No. 29921.

Supreme Court of Indiana.

Jan. 30, 1961.

William P. Foreman, Bamberger, Foreman, Oswald & Hahn, Evansville, John A. Posey, Rockport, for appellant.

William L. Mitchell, Evansville, Paul F. Mason, Rockport, Ford G. Lacey, Boonville, for appellee.

ARTERBURN, Judge.

This is an action brought by the appellant, Southern Indiana Gas and Electric Company against the appellees, John A. Gerhardt and Edith Gerhardt (and others not involved in this appeal), for the purpose of acquiring by eminent domain an easement for electric transmission lines across certain lands of the appellees situated in Warrick County.

The cause was tried by jury upon issues formed by exceptions filed by both parties to the appraisers' report. The jury returned a verdict for the appellees, awarding damages in the amount of $14,000. The appellant assigns as error on appeal the overruling of its motion for a new trial. The motion contained 32 separate specifications, 16 of which are treated by the appellant in its brief, and the remaining specifications are thereby waived.

We take up first those specifications relating to motions made by the appellant to strike the testimony of witnesses as to valuation and damages of the property in question because the opinions were based upon alleged improper elements and erroneous assumptions of fact.

The record reveals that the appellees offered as witnesses on the subject of valuation and damages of the property involved, the testimony of Carl Wagner, Albert Woll, Damon Lloyd, James C. Bauer, John A. Gerhardt and Virgil Gerhardt, among other witnesses. The named witnesses were subjected to an intensive and long, drawn-out cross-examination by the counsel for appellant in determining the basis upon which their opinion was formed.

Carl Wagner, on cross-examination, was asked what elements he considered in determining the damage. He stated that he considered poles and lines to be strung across the easement as a danger and an inconvenience in farming operations on the land involved; that the poles and lines would hinder spraying with an airplane for infestation in a field; that it would be dangerous to pull a grain elevator without lowering it down a driveway under the high-tension lines, and that there would likely be tile breakage in the use of the easement by the appellant from time to time, which would cause interference with drainage from other parts of the land. He also testified that the towers and poles to be erected would cause difficulty in farming because the rows would be broken and heavy machines would have to be taken around the poles.

The appellant insists that such testimony was an improper consideration of an 'assumed danger' and that 'consideration of speculative matter such as the possibility of driving farm equipment into appellant's towers' was not proper.

The jury, in determining the damages, must find what the 'fair market value' of the property was at the time of the taking. Burns' § 3-1706. The 'fair market value' is a determination of what the land may be sold for on the date of the taking if the owner were willing to sell. Anything affecting the sale value at that time is a proper matter for the jury's consideration in attempting to arrive at a 'fair market value'.

A distinction should be drawn between the right to show what effect apparent dangers such as falling transmission lines or fire from passing locomotives and similar risks have upon the fair market value of property, and the right to show the possibility of such injuries which may occur in the future as a basis for present damages. In the latter case such evidence as to direct damages is not competent, while in the former situation the evidence may be shown as a basis or factor taken into consideration in estimating the fair market value. In other words, evidence of those dangers which will affect a prospective purchaser and as a result affect the market value, is competent evidence. Chicago, etc., R. Co. v. Ader, 1915, 184 Ind. 235, 110 N.E 67; 29 C.J.S. Eminent Domain §§ 170, 171; 18 Am.Jur., Eminent Domain, § 267.

The cross-examination in this instance was direct as to what factors were considered in fixing the fair market value. Whether or not property has dangerous or annoying factors connected with its use or occupancy which would affect its salability Heath v. Sheetz, 1905, 164 Ind. 665, the jury under its fact-finding function. The jury is not bound to accept such opinions. Heach v. Sheetz, 1905, 164 Ind. 665, 74 N.E. 505.

In the cases of Southern Indiana Gas and Electric Co. v. Jones, Ind.1960, 166 N.E.2d 127 and Northern Indiana Public Service Co. v. Darling, Ind.1958, 154 N.E.2d 881, we held that matters of danger and annoyance which have a tendency to affect the sales value of the property are elements which a jury may consider, if it sees fit, in attempting to reach a figure for the fair market value of the property. In the Darling case we decided specifically that the dangers of explosion in connection with a gas pipe line through certain property could be considered in determining its fair market value and salability in a condemnation action. It likewise follows that inconveniences and what appear to be dangers that would influence a purchase of property are factors which may properly be presented to a jury for its consideration in cases of this character. It is common knowledge, for example, that power lines and high-tension power lines sometimes break and fall during heavy storms and ice; that there is sometimes television and radio interference caused by the proximity of such high-tension lines. ¹ If such possibilities exist, certainly a jury may consider whether or not the salability of such property and its fair market value may be hurt by such factors.

In Northern Indiana Public Service Co. v. Darling, Ind.1958, 154 N.E.2d 881, 883, we said:

'* * * The jury had the right to infer that the possible danger from fire or explosions, even though it might not happen on the Darling property, did lessen the market value of the residue of the real estate. Therefore, there was no error in giving appellees' requested instruction No. 5, which is set forth in the note.'

Anything that would interfere with the farming operations on the land used for agricultural purposes may also be considered by a jury.

In Southern Indiana Gas and Electric Co. v. Jones, Ind.1960, 166 N.E.2d 127, 130, we said:

'Appellant has also contended said instruction No. 3 is erroneous for telling the jury they could consider as an element of damage things that are annoying or hurtful, which appellant contends are speculative or conjectural matters. It will be noted the instruction limited the consideration of things annoying or hurtful to such as were necessarily incident to the permanent location and operation of appellant's power lines across appellees' premises. We are of the opinion that said instruction when read in its entirety related to proper matters affecting the market value of appellees' land and that it is not objectionable for the reasons urged by appellant.'

In another case it has been said:

'The cutting of fields into inconvenient shapes, the interruption of covenient ways for animals to pass from the farm buildings to and from pasture and the necessity for additional fencing, are elements of damage, and may be properly inquired into, in a case like this. (Cases cited) The increased hazard from fire being set by passing locomotives is also a proper consideration for the jury in estimating the damage. (Cases cited.)' New Jersey, R. Co. v. Tutt, 1907, 168 Ind. 205, 218, 80 N.E. 420, 425.

It is argued that persons performing the farming operations should not 'forget' to lower an elevator as it goes under the high-tension lines in order to avoid contact with them; that the effect thus is to hold the appellant Electric Company liable for possible negligence of those using the land. The issue here is not a liability for negligence, but rather what effect does such inconvenience and possibility of injury, even from negligence, have upon the salability and the fair market value of the land. The jury has a right to take such factors into consideration for what they are worth as affecting the value of the land.

In Chicago, etc., R. Co. v. Ader, 1915, 184 Ind. 235, 241, 110 N.E. 67, 69 it was said:

'The jury had a right to take into consideration the danger and liability of fires, notwithstanding the statute fixing liability of appellant for the portion of the fires caused by its locomotives.'

It was no answer in the Darling case that if a gas leak and explosion in the pipe line occurred, the transmission company would be liable and thus the injured parties compensated. The issue is, what effect, if any, does such possibility have on the fiar market value of the property? Most persons do not care to buy lawsuits or land which will involve them in litigation. Damages, even if justly assessed, are never complete compensation after the expenses of litigation and the time and vexation connected therewith are expended. Condemnation is a legally forced sale and under the constitution the owner is entitled to be fully and fairly compensated and not left partially short of that goal. The court committed no error in overruling the objections to evidence which show the inconveniences and undesirable burdens placed upon an owner and purchaser which might affect the sale value.

The appellant also moved to strike out the testimony of Carl Wagner after bringing out on cross-examination that he based his knowledge of the rights to be taken by the Electric Company upon a 'contract' which he said was presented to the owners by the appellant, apparently in an attempt to purchase the land prior to the bringing of this action. In his testimony he later stated that he was using...