United Power Ass'n v. Heley

• Decision Date: 15 March 1979
• Docket Number: No. 9479,9479
• Citation: 277 N.W.2d 262
• Parties: UNITED POWER ASSOCIATION and Cooperative Power Association, Plaintiffs and Appellees, v. Harvey J. HELEY, Shirley Heley, Raymond Jelinek and Mary Ann Jelinek, Defendants and Appellants, and Kenneth Theodore Frolek, Dexter Township, Richland County, Liberty Grove Township, R.S.R. Electric Cooperative, Inc., Lincoln State Bank, Hankinson, North Dakota, Dome Pipeline Corporation, State of North Dakota, United States of America acting through the Farmers Home Administration, U.S. Department of Agriculture, Anastasia C. Kaiser, Dwaine C. Kaiser, Farimont Township, Federal Land Bank of St. Paul, Claire J. Hermes and Evelyn C. Hermes, Defendants. Civ.
• Court: North Dakota Supreme Court

Page 262

277 N.W.2d 262

UNITED POWER ASSOCIATION and Cooperative Power Association, Plaintiffs and Appellees, v. Harvey J. HELEY, Shirley Heley, Raymond Jelinek and Mary Ann

Jelinek, Defendants and Appellants,

and

Kenneth Theodore Frolek, Dexter Township, Richland County,

Liberty Grove Township, R.S.R. Electric Cooperative, Inc.,

Lincoln State Bank, Hankinson, North Dakota, Dome Pipeline

Corporation, State of North Dakota, United States of America

acting through the Farmers Home Administration, U.S.

Department of Agriculture, Anastasia C. Kaiser, Dwaine C.

Kaiser, Farimont Township, Federal Land Bank of St. Paul,

Claire J. Hermes and Evelyn C. Hermes, Defendants.

Civ. No. 9479.

Supreme Court of North Dakota.

March 15, 1979.

As Modified On Denial of Rehearing April 4, 1979.

Vogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, and Ryan & Ryan, Aitkin, Minn., for plaintiffs and appellees; argued by John D. Kelly, Fargo.

Jos. A. Vogel, Jr., Mandan, for defendants and appellants.

SAND, Justice.

Defendants appealed from the judgment in an eminent domain action before the Third Judicial District Court, Richland County. As error, defendants asserted the refusal of the district court to allow evidence of consequential damages to their property resulting from the placement of power transmission towers and lines on abutting property.

Raymond and Mary Ann Jelinek (Jelineks) and Harvey and Shirley Heley (Heleys) are the appellants in this case and were among a number of Richland County landowners involved in an eminent domain proceeding initiated by United Power Association and Cooperative Power Association for the placement of a power transmission line across the landowners' properties.

Heleys own the Southeast Quarter (SE 1/4) of Section 20 and the West Half of the Northeast Quarter (W 1/2 NE 1/4) of Section 29. The Jelineks owned the Northeast Quarter (NE 1/4) of Section 28 and the Northwest Quarter (NW 1/4) of Section 26. All four pieces of property are located in Township 131, Range 51, Richland County.

Originally the North Dakota Public Service Commission designated the transmission line to follow the quarter line on the west side of the SE 1/4 of Section 20 and the NE 1/4 of Section 29. The line was to then make a 90o turn east and follow the quarter line on the south side of the NE 1/4 of Section 29, and the N 1/2 of Sections 28, 27, and 26. Thus, the transmission line was to follow the west side of both tracts of the Heley property, turn east, follow the south side of the W 1/2 NE 1/4 of Section 29, owned by the Heleys, and continue east, following the south side of both tracts of property owned by the Jelineks. The towers of the transmission lines were to be located half on the Heley and Jelinek properties and half on abutting properties owned by Ben Frolek, James and Jerry Hruby, and Arnold and Kenneth Jentz (Frolek, et al.).

As neither the Heleys nor the Jelineks signed an easement for the transmission line, condemnation proceedings were necessary and a trial was set for December 1977.

Prior to the date set for trial, Frolek, et al., agreed to have the transmission line moved from the quarter line routing along the east-west quarter line of Sections 29, 28, and 26 onto their adjoining properties. This agreement was approved by the North Dakota Public Service Commission and the line was adjusted accordingly. Consequently, no transmission facilities were or would be located on the Jelinek property, nor were or would any be located on the south side of the W 1/2 NE 1/4 of Section 29, owned by the Heleys. The transmission right of way, however, was to extend approximately 80 feet either side of the center of the line to allow access for the construction and maintenance of the line. As a result, an approximate one-half-acre easement over the corner of the NW 1/4 of Section 26 and slightly less than a one-acre easement over the corner of the NE 1/4 of Section 28, had to be acquired from the Jelineks, although neither any towers nor any part of the transmission line would be located on or over their property. No easement was required from the Heleys for the south side of the W 1/2 NE 1/4 of Section 29, however, the transmission line and towers remained on the north-south quarter line of the SE 1/4 of Section 20 and the W 1/2 NE 1/4 of Section 29, and easements were required over those properties.

The jury awarded the Heleys $7,541 for damages to their property located within the easement right of way, and $8,038 for severance damages to the remainder of their property. The Jelineks were awarded $858 for the taking of the "corner" easements and $1,274 for severance damages.

At trial, the Heleys and Jelineks unsuccessfully sought to introduce evidence of consequential damages resulting from the transmission line and towers located on the Frolek, et al., properties. The appellants then made an offer of proof consisting of testimony by Harvey Heley and Raymond Jelinek, along with an appraiser and an aerial sprayer, that the transmission line would interfere to some extent with crop spraying over the appellant's properties resulting in a reduction of the land's market value. The trial court denied admission of the evidence. The Jelineks and Heleys appealed, contending the trial court erred by refusing to admit the testimony (evidence) presented in the offer of proof.

The issue presented is whether or not a landowner is entitled to recover consequential damages for the diminution in the value of his land not taken resulting from the acquisition and use of adjoining land of other persons for the construction of transmission lines.

Consequential damages can generally be defined as those arising from injuries to property not actually taken, caused by the construction of a public improvement. Little v. Burleigh County, 82 N.W.2d 603 (N.D.1957).

We note the appellants did not contend the consequential damages for which they seek compensation arose as a result of the taking of easements over their properties. Their offer of proof related to damages suffered to their properties as a result of the construction of transmission facilities on adjoining properties of others.

Nichols on Eminent Domain, § 14.4 at 14-431, recognized a distinction between the seeking of consequential damages as the result of the taking of one's own property, and the seeking of consequential damages arising from a public improvement on the property of others:

"In the former case, the mere fact that there has been a taking entitles the owner to recover for all damages to his remaining land (whether special or shared by the public generally), provided they flow from the taking, since he is constitutionally entitled to be made whole for all injuries resulting from the taking of his land. But when there is no taking, he is entitled only to such damages as the constitution or statutes provide, and as the damages usually provided for are held to be only those which are special and peculiar, the mere fact that an owner is entitled to recover such damages is no ground for allowing damages of a different character, although resulting from the construction of the same work. When, however, a form of damage comes within the constitutional provision only when it passes a certain limit, if it has passed the limit the owner is entitled to recover for all the damage from this cause (and not merely so much as is in excess of what could be inflicted without compensation.) To draw the line in such a case would not be practicable."

Thus when a landowner seeks consequential damages as the result of a taking of a part of his property, the general rule is that just compensation does not include diminution in the value of the remainder caused by the acquisition and use of adjoining lands of others for the same undertaking, at least where it is possible to separate the damages caused to the remainder of the owner's tract by the use of the portion taken, from the damages caused by the similar use of adjoining property taken from others. Campbell v. United States, 266 U.S. 368, 45 S.Ct. 115, 69 L.Ed. 328 (1924). See also, Annot., 59 A.L.R.3d 488 (1974).

Some courts have created somewhat of an exception to the above rule stating that just compensation includes diminution in the value of the remainder caused by the acquisition and use of adjoining lands of others for the same undertaking, where the use of the land taken constitutes an integral and inseparable part of a single use to which the land taken and other adjoining land is put. United States v. Pope & Talbot, Inc., 293 F.2d 822 (9th Cir. 1961). See also, Annot., 59 A.L.R.3d 488 (1974).

Appellants have not contended, nor do we conclude that it is impossible to separate the element of consequential damages to the remainder area due to the easement taken over their property from the consequential damages due to the use of land taken from Frolek, et al. for the same project. See, Public Service Electric & Gas Co. v. Oldwick Farms, Inc., 125 N.J.Super. 31, 308 A.2d 362 (1973); Cert. denied 64 N.J. 153, 313 A.2d 213. As stated by the New Jersey court at 308 A.2d 365:

"While it is apparent that the transmission lines which transverse defendant's property are physically an 'integral and inseparable part' of the total project, we do not find that that fact requires a departure from the rule enunciated in Campbell v. United States, above. Here, as in Campbell, the damage to defendant's remaining lands caused by the fact that the aerial easement for the transmission lines cross a small corner of its property are readily separable from the damage to the remaining tract which may be attributed to the existence of the transmission towers on adjoining lands belonging to others. The principal distinction between the damages is that the existence of the transmission lines over a corner of defendant's property could have very little effect on the value of the remaining tract as a whole, while the existence of the...