United States ex rel. TVA v. Easement and Right of Way

• Decision Date: 26 December 1968
• Docket Number: No. 18252,18253.,18252
• Citation: 405 F.2d 305
• Parties: UNITED STATES of America, upon the relation and for the Use of the TENNESSEE VALLEY AUTHORITY, Plaintiff-Appellee and Cross-Appellant, v. An EASEMENT AND RIGHT OF WAY 200 Feet Wide and 3,435 Feet Long OVER A TRACT OF LAND IN MADISON, COUNTY, TENNESSEE, Minnie L. Moore, et al., Defendants-Appellants and Cross-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

405 F.2d 305 (1968)

UNITED STATES of America, upon the relation and for the Use of the TENNESSEE VALLEY AUTHORITY, Plaintiff-Appellee and Cross-Appellant, v. An EASEMENT AND RIGHT OF WAY 200 Feet Wide and 3,435 Feet Long OVER A TRACT OF LAND IN MADISON, COUNTY, TENNESSEE, Minnie L. Moore, et al., Defendants-Appellants and Cross-Appellees.

Nos. 18252, 18253.

United States Court of Appeals Sixth Circuit.

December 26, 1968.

George L. Morrison, and Carmack Murchison, Jackson, Tenn., for appellant and cross-appellee; Murchison & Murchison, Jackson, Tenn., of counsel.

Thomas A. Pedersen, Asst. Gen. Counsel, Tennessee Valley Authority, Knoxville, Tenn. (Robert H. Marquis, Gen. Counsel, Tennessee Valley Authority, Knoxville, Tenn., Paul T. Dunn, Knoxville, Tenn., on the brief), for appellee and cross-appellant.

Before PECK, McCREE, and COMBS, Circuit Judges.

COMBS, Circuit Judge.

The United States, pursuant to the Tennessee Valley Authority Act, 16 U. S.C. § 831 et seq., instituted proceedings in District Court to condemn a permanent easement and right of way across appellants' property for electric power lines and supporting towers. The three commissioners appointed in accordance with Section 831x awarded $35,000 as compensation; both TVA and the property owners excepted. The commissioners' award was reduced to $22,594 by the District Court. The property owners contend the award is too low; TVA on cross-appeal contends the award is too high. We consider the case de novo — 16 U.S.C. § 831x.

The easement was taken in December, 1962, and is part of a 230-acre tract which lies on the east and west sides of US Highway 45 approximately five miles north of the center of Jackson, Tennessee. The easement, 200 feet wide, 3,435 feet long, and containing 15.8 acres, extends diagonally over the northern portion of appellants' land at an angle which causes the portion of land north of the easement and east of the highway to be isolated as a small triangular tract. In addition to the electric power lines, four supporting towers are located on the easement.

The overall tract, lying adjacent to Highland Memorial Garden Cemetery on the north and a high school on the south, is presently farmland but its best potential use is residential. Substantial development has occurred between the city and appellants' property with the more concentrated areas being nearer the city. The landowners' witnesses valued the land before taking at between $2,000-$3,000 an acre; estimates of TVA witnesses ranged from $950-$1,200 an acre. Based upon this testimony, the landowners seek to recover $80,000 while TVA contends $12,325 would be just compensation.

Basically, we must resolve three issues: first, the before taking value of the land; second, the after taking value within the easement; and, third, the incidental damages to the land adjacent to the easement. The landowners, in effect, ask us to credit the testimony of their witnesses and ignore that of TVA witnesses. TVA, on the other hand, insists that its witnesses best meet the test of competency and credibility. In addition, TVA challenges the admission of the landowners' evidence in the following respects: (1) the competency of some witnesses to express an opinion as to value; (2) the admission of certain sales as comparable; and, specifically, (3) the admissibility of a sale to a school board having the power to condemn.

In determining the land's fair market value before the taking, brief comment is relevant to the evidentiary issues enumerated above. Regarding the competency of witnesses in cases of this nature, opinion evidence usually may be admitted from those who are not strictly experts, the test being whether it can be shown the witness knows the land and its surroundings and has an opinion as to value based upon more than mere conjecture. Love v. United States, 141 F.2d 981 (8th Cir.1944); Welch v. Tennessee Valley Authority, 108 F.2d 95 (6th Cir.1939); 27 Am.Jur., Eminent Domain § 425. Without belaboring the point, we are of the opinion that the landowners' witnesses met this minimum standard. Such testimony merited consideration, but not necessarily acceptance.

The proper test in determining the admissibility of other sales as comparable is the similarity in character and locality of the land sold. Knollman v. United States, 214 F.2d 106 (6th Cir. 1966). The land involved here is neither exclusively limited to farm use nor presently in demand for residential use. So, its value fluctuates somewhere between the two. Under such circumstances, we are reluctant to exclude evidence of other sales in the locality where it is established that the land sold had a potential use comparable to that of the land in question. The extent of comparability goes to the weight rather than to the admissibility of the evidence. United States v. 124.84 Acres of Land, etc., 387 F.2d 912 (7th Cir.1968).

The record shows the sale to the school board was voluntary and not in connection with or in anticipation of condemnation proceedings; as such, it falls within a recognized exception to the rule excluding sales in which the purchaser is an instrumentality having the power of eminent domain. 27 Am. Jur. Eminent Domain § 430. Although the sale occurred twenty-three months after the date of taking in this case, no absolute rule precludes consideration of subsequent sales. United States v. 63.04 Acres of Land, etc., 245 F.2d 140 (2nd Cir.1957). Actually, in a case of this nature, not decided by a jury but by those experienced in determining land values, we prefer to adopt a liberal attitude in regard to admission of evidence and then...