United States v. 3.08 ACRES OF LAND, ETC.

• Decision Date: 13 September 1962
• Docket Number: No. C 129-61.,C 129-61.
• Parties: UNITED STATES of America, Plaintiff, v. 3.08 ACRES OF LAND, MORE OR LESS, Situated IN BOX ELDER COUNTY, Utah, Utah Power and Light Company, et al., and Unknown Others, Defendants.
• Court: U.S. District Court — District of Utah

209 F. Supp. 652

UNITED STATES of America, Plaintiff, v. 3.08 ACRES OF LAND, MORE OR LESS, Situated IN BOX ELDER COUNTY, Utah, Utah Power and Light Company, et al., and Unknown Others, Defendants.

No. C 129-61.

United States District Court D. Utah, N. D.

September 13, 1962.

William T. Thurman, U. S. Atty., Craig T. Vincent, Asst. U. S. Atty., Salt Lake City, for plaintiff.

Marvin J. Bertoch, Sidney G. Baucom, Salt Lake City, for defendants.

CHRISTENSEN, District Judge.

This is an action brought by the United States of America as plaintiff to condemn a right of way across a parcel of real property owned by the defendant Utah Power and Light Company for the purpose of constructing a canal.

The use for which the real property is to be taken is stated in the complaint to be a public use in connection with the construction, operation and maintenance of the Willard Canal, Weber Basin Project, Utah. The estate to be taken according to the complaint is a right of way for that canal and the right of way is described by metes and bounds as a strip of land 185 feet wide, containing 3.08 acres more or less, situated in Box Elder County, State of Utah. Subsequent proceedings have indicated that the Government believes that it is already entitled to the right of way sought to be condemned by virtue of a prior reservation, as will be discussed more fully hereafter. Actually it appears that the Government is seeking to condemn only any enlargement of the claimed existing easement that may be found to result from its contemplated use.

The plaintiff claims that the property in question was acquired by the State of Utah from the United States by a selection list transfer approved by the United States Department of the Interior on June 19, 1907; that said land was patented by the State of Utah to Charles W. Nibbley on May 2, 1917; that said land has by mesne conveyances become the property of the defendant Utah Power and Light Company; and that the plaintiff already has the granted and reserved right to construct a canal across said land without paying the defendant more than nominal compensation, estimated in the declaration of taking to be One Dollar.

The defendant Utah Power and Light Company does not contest the right of the plaintiff to condemn a right of way in the property in question but claims that it is entitled to fair and just compensation for the interest taken in the amount of $350.00 per acre for the 3.08 acres, or $1078.00, plus further compensation for damages to its remaining interest in the property taken and for consequential damage to the remaining portion of the parcel of land involved or to the entire generating or distributing system of which the property taken is an integrated part, in the amount of $18,900.00. The Power Company asserts that the parcel of land of which the condemned portion is a part was acquired by it for use as a site for towers to support high tension wires to be integrated with its generating and distributing system; that the towers had been designed and their construction was imminent prior to the taking by the government, but that due to the canal banks to be constructed on the condemned property and the boom necessarily to be used on those canal banks for maintenance of the canal, the Utah Power and Light Company has had to redesign its towers to increase their heights so that the power lines suspended between them and over the canal will be at a height required by law to avoid contact with plaintiff's equipment. It is alleged that the increased cost of the construction of the higher towers compared with those originally designed will amount to $11,900.00. It is further contended that the defendant Power Company will have to bear $7,000.00 as additional cost to strengthen a bridge which will accommodate the heavy equipment necessary to the defendant's operations, since direct access by such heavy equipment without the strengthened bridge will be cut off by the proposed canal.

All of the other parties defendant have either disclaimed or defaulted. The following facts have been stipulated between the plaintiff and the Utah Power and Light Company:

The canal in question will have a maximum water gravity flow capacity of 950 cubic feet per second and a maximum flow capacity of 500 cubic feet per second with a bottom width of 30 feet and a maximum water surface width of 70 feet. It will be 90 feet wide inside the top of the embankments and will have an overall width from embankment toe to embankment toe of approximately 180 feet where it crosses the property of the Power Company. Drains and ditches will be constructed alongside the canal wherever necessary to carry off surface water. The earth embankments along the sides of the canal will have an average height of 8 feet above the average ground level of the said defendant's property. The fair market value of the interest in the land itself, as taken by the plaintiff in this action, is $350.00 per acre.

The sole contested issue of fact as reserved in the pre-trial order in the words of the parties is:

"What is the amount of the consequential damage done to defendants' remaining interest in the property taken for the easement and to the remaining portion of the parcel of property out of which the easement is carved, or to the remainder of the integrated power system. To approach it another way, what is the amount of expense necessary to enable the defendant to make its remaining land and its remaining interest in the land taken usable to the extent and for the same purpose it was used or to be used prior to the taking. To express the measurement of damage in still a third alternative manner: Has the market value of the entire power system of the defendant been reduced in value by the taking, and if so, to what extent."

The parties expressed in the pre-trial order the contested issues of law, in addition to those implicit in the foregoing issue of fact, as:

"(a) Whether or not plaintiff has the reserved right to construct the ditch known as the `Weber Canal' across such real property with respect to any and all of the acreage classifications * * * by virtue of the laws of the State of Utah without paying defendant Utah Power and Light Company more than nominal compensation and

"(b) Whether or not defendant Utah Power and Light Company is entitled to compensation for the alleged consequential damage, or cost of restoration, or reduction of market value, if you will, described above."

This case is perhaps the only contested civil case in recent years in which I have been persuaded by counsel not to hold an actual pre-trial conference. Counsel indicated a reluctance to go to the trouble of appearing in the Northern Division for the conference and indicated that the issues were simple and the evidence could be substantially stipulated. I therefore signed a stipulated "Pre-Trial Order" without holding an actual pre-trial conference. Developments have indicated that even in the seemingly simple cases, actual pre-trial conferences are beneficial and that rarely, if ever, can time be saved or the interest of justice promoted by dispensing with them.

Implicit in the pre-trial order is the indication that defendant Power Company did not contest the necessity for the "taking" and that the only issue of ultimate fact involved damages. Both parties, at the time the execution of the pre-trial order was under consideration and at the time of the trial, indicated that the damages to the Utah Power and Light Company were occasioned, aside from the value of any interest in land actually taken, by the eight foot banks of the canal and by the plan and necessity of the government to operate from those banks a 50 foot boom for the purpose of cleaning the canal. This combination, the evidence established, necessitated the raising, as compared with their acceptable height, of the planned towers supporting the Power Company's transmission lines which would not be necessary were it not for the elevated banks and the necessary boom, and which raising entailed additional expense to the Power Company of $11,900.00.

The court finds in the latter connection that the defendant's increased cost of construction of electrical facilities necessitated by plaintiff's contemplated use of the land taken, including the utilization of the boom for maintenance of the canal, will be the sum of $11,900.00; that by reason of the establishment of the canal defendant's access to its remaining property by its necessary heavy equipment will be destroyed unless the said defendant incurs an additional cost of $7,000.00 in supporting a public bridge designed, without such support, for merely ordinary vehicular traffic; and that by these amounts the value of the defendant's integrated power system may fairly be regarded as depreciated by the taking. These findings will become important only if I am wrong in some or all of my other findings or conclusions.

Neither the pre-trial order nor the evidence adduced at the trial indicated what part of this expense or depreciation would be due to the maintenance of the elevated banks of the canal and what additional part, if any, would be attributable to the contemplated operation by the Government of the 50 foot boom in connection with the maintenance of the canal. While the Government itself accepted, during the course of the trial, the thesis that this proceeding was designed to assure to it the right to operate such boom and that it would be necessary for the Power Company to raise its transmission lines to permit such operation, there was no specification in the pre-trial order, nor in notice of taking, that this operation was included as among the rights sought to be condemned or confirmed in the Government. The significance of this refinement became apparent only from the briefs filed following the trial, which briefs changed the original emphasis upon the question of whether the Government already had a right of way for...