Telluride Power Co. v. Bruneau

• Decision Date: 18 April 1912
• Docket Number: 2301
• Citation: 41 Utah 4,125 P. 399
• Court: Utah Supreme Court
• Parties: TELLURIDE POWER COMPANY v. BRUNEAU

125 P. 399

41 Utah 4

TELLURIDE POWER COMPANY v. BRUNEAU

No. 2301

Supreme Court of Utah

April 18, 1912

APPEAL from District Court, Third District; Hon. M. L. Ritchie Judge.

Condemnation proceeding by the Telluride Power Company against Moses Bruneau.

Plaintiff appeals from judgment assessing defendant's damages.

AFFIRMED.

E. C Lackner, L. W. Allen and B. A. Cummings for appellant.

APPELLANT'S POINTS.

In eminent domain proceedings, the general rule of damages obtains, which is, that damages to be recoverable must be certain and direct. Contingent, speculative and remote damages are excluded from the consideration of the jury. (Postal Tel. Co. v. O. S. L. Co., 23 Utah 474; 65 P 735, 740; 15 Cyc. 715, 716, 717; Lewis on Eminent Domain (3d Ed.), sec. 1313.)

The risk or possibility of future injury to persons or property by reason of the maintenance and operation of the contemplated improvement cannot be considered as a distinct element of damage. These are imaginary dangers that may or may not occur, and if they do, the law affords a speedy and adequate remedy. If, however, the improvement is so constructed that the danger is real, appreciable and imminent, the danger may be considered as an element of damage, as bearing upon the depreciation in the market value. But, where the danger is remote, as the uncontradicted evidence in this case shows, damage from such a source cannot be considered for any purpose, and evidence thereof should be excluded from the jury. (Jones v. Chicago Co., 68 Ill. 380, 384; Kay v. Glade Creek Co., 47 W.Va. 467, 35 S.E. 973; Indianapolis Co. v. Larrabee, 80 N.E. 413; Leroy v. Ross, 40 Kan. 598, 20 P. 197; McReynolds v. Burlington Co., 106 Ill. 152; Indianapolis Co. v. Hill, 86 N.E. 414; Seattle Co. v. Gilchrist, 4 Wash. 509, 30 P. 738; Atlantic Co. v. Postal Tel. Co., 120 Ga. 268, 48 S.E. 15; Chicago Co. v. Mawman, 69 N.E. 66; Conness v. Indiana Co., 193 Ill. 464, 62 N.E. 221.)

In a proceeding to condemn land, evidence of sales of property similarly situated is admissible on direct examination. (St. Louis Co. v. Clark, 121 Mo. 169, 25 S.W. 192, 26 L. R. A. 751; Loloff v. Sterling, 31 Colo. 102, 71 P. 1113; White v. Hermann, 51 Ill. 243, 99 Am. Dec. 543; Provision Co. v. Chicago, 111 Ill. 651; Paine v. Boston, 4 Allen (Mass.), 168; Cherokee v. Land Co., 52 Ia. 279, 3 N.W. 42; Concord v. Greeley, 23 N.H. 237; Peoria Co. v. Peoria Co., 146 Ill. 372, 34 N.E. 550, 21 L. R. A. 373; Wigmore on Evidence, sec. 463 and note.)

The jury may not consider the information acquired by them from a view and wholly disregard the testimony of witnesses; the verdict must be supported by the substantial testimony of sworn witnesses and cannot rest solely upon the personal examination of the premises by the jury. (Washburn v. Milwaukee Co., 59 Wis. 364, 18 N.W. 328; Grand Rapids v. Perkins, 78 Mich. 93, 43 N.W. 1037; Peoria Co. v. Peoria Co., 34 N.E. 550, 21 L. R. A. 373; Chicago Co. v. Parsons, 51 Kan. 408, 32 P. 1083; Kansas Co. v. Hill, 80 Mo. 523; Hoffman v. Bloomsburg, 143 Pa. 503, 22 A. 823; Flower v. Baltimore, 132 Pa. 524, 19 A. 274; Seattle Co. v. Roeder, 30 Wash. 244, 70 P. 498, 94 Am. St. Rep. 864; Seifield v. Chicago Co., 67 Wis. 96, 29 N.W. 904.)

L. L. Baker and Street & Bramel for respondent.

RESPONDENT'S POINTS.

In assessing damages in condemnation proceedings, danger from falling wire is not to be considered unless that danger injures the market value of the land. (Leroy & W. R. Co. v. Ross, 40 Kan. 598, 20 P. 197; St. Louis Ry. Co. v. Oliver, 87 P. 423; Beckman v. Railway, 122 N.W. 994; Railway v. Bates, 68 N.W. 342; Johnson v. Railway, 35 N.W. 438; Railway Co. v. Columbia Synod, 119 P. 60.)

Market value, after a witness has stated the same, cannot be further shown by evidence of specific sales. Specific sales may be matter for cross-examination, but it is not a proper subject for direct examination. (U. P. Ry. Co. v. Stanwood, 71 Neb. 150, 98 N.W. 656; Robinson v. Railway Co., 175 N.Y. 219; Becker v. Railway, 177 Pa. 252, 35 L. R. A. 583; Stinson v. Railway, 27 Minn. 284, 6 N.W. 784; O. R. & N. Co. v. Eastlacl, 102 P. 1011; C. R. R. R. v. Pearsons, 35 Cal. 247; Ry. Co. v. Vickroy, 26 P. 698.)

STRAUP, J. FRICK, C. J., and McCARTY, J., concur.

OPINION

STRAUP, J.

This is an action to condemn a strip of land twenty feet wide over the lands of the defendant for an electric power line extending from Bingham to the Garfield smelter. The defendant owns about 280 acres inclosed by fence. His land is about five miles from Tooele City. There is evidence to show that about 175 acres is under cultivation upon which lucerne and grain have been raised. The defendant also kept and pastured on his land from 100 to 200 head of cattle each year. The land is adaptable to the raising of general farm products, fruit, potatoes, and other vegetables. The power line extends over his lands for a distance of about 3200 feet. The poles on which the wires are strung are 300 feet apart. About ten or eleven poles are placed on the strip in question. The poles are of cedar timber, from thirty-five to fifty feet in length. Each pole has cross-arms upon which are strung three wires to conduct electricity for electrical power and energy. The lowest wire suspended on the poles is twenty-three or twenty-four feet above the ground. The wires carry a voltage of 44,000 volts. The case was tried to the court and a jury. The only question submitted to the jury was that of compensation for the land taken and injured. A verdict was returned for the defendant assessing his damage in the sum of $ 1030. The plaintiff appeals.

No question is raised with respect to sufficiency of the evidence to support the verdict. The questions presented for review relate to the admission and exclusion of evidence, and to the charge.

A witness for the defendant, an electrical engineer, after having qualified as an expert, was asked by counsel for the defendant whether persons and animals on the ground and within ten feet of a transmission line of wires carrying a voltage of 44,000 volts, and constructed and operated as was the line of the plaintiff, would be exposed to danger from the wires. He answered that they would be if the wires were bare. This testimony was objected to by the plaintiff as referring to a danger or element which was too remote and merely speculative.

Other witnesses for the defendant, after having qualified and shown to have knowledge of the market value of the land in question, testified, some of them, that the market value of the defendant's land before the construction of the transmission line was $ 35,000, and after the construction $ 32,000; others, $ 30,000 before, and $ 27,000 or $ 28,000 after, the construction of the line; and still others, $ 25,000 before and $ 23,500 after the construction. On cross-examination they were asked by plaintiff on what they based the difference between the market value before and after the construction of the line. Among other things stated, and reasons, given, by them, they stated that they considered the danger to which persons and live stock were exposed by the highly charged wires, and the breaking and falling of wires and poles. These things were all brought out on cross-examination. No motion was made to strike the testimony of these witnesses except one who had testified to such things after others had testified to them. This particular witness, on his cross-examination, among other reasons given by him which in his opinion tended to show a depreciation of the market value of the land, stated that: "In arriving at the elements of damage, I consider the distance that them poles would fall either way, which would mean a sixty-four foot dangerous strip of ground, and rather than take any chances of that danger, I would fence it with a good fence that nothing could get in there for that distance of the right of way. I consider the damage from the danger of the poles falling at $ 950. I can't say what proportion of this $ 1450 (the amount which he stated was the difference between the market value before and after the construction of the line) I would assess by reason of the danger of the falling of the poles and wires. In estimating the damages, I did not consider future damages which might result from a falling of the poles upon this land. . . . With the poles and wires charged with electricity, there is danger which I would want to eliminate as much as possible. From that danger I place the depreciation at $ 950. If I were the owner, I believe $ 950 ought to be allowed for that danger in the selling price if I were trying to sell the land. That leaves $ 500. I would take that $ 500 as a general damage that would result from a continuous right of way for myself and every one else, one field into another," because of the inconvenience in farming the land. "The right to farm this strip and to pass through it is a detriment to" the defendant. "If it were mine, I would rather not cultivate" the strip. "I would fence up that right of way because of that danger of falling wires and breaking of poles. In my estimation of this $ 500 I consider the inconvenience it would put me to with my farm, either in tilling it, pasturing it, irrigating it, and everything for that inconvenience I would be put to in farming my place, maintaining a fence, if I had one, along the pole line, or gates, either to enter it at either end or in the center of it." At the conclusion of his cross-examination, counsel for plaintiff stated: "I believe it is apparent from the testimony of this witness that he has based his valuation of the depreciation upon an element which is not a proper consideration of damage, which is the breaking of these wires and falling of these poles upon the property, for in case...