United States v. AN EASEMENT AND RIGHT OF WAY, ETC.

• Decision Date: 24 February 1960
• Docket Number: Civ. A. No. 313.
• Parties: UNITED STATES of America upon relation and for use of TENNESSEE VALLEY AUTHORITY, Plaintiff, v. AN EASEMENT AND RIGHT OF WAY 150 FEET WIDE AND 582.4 FEET LONG OVER CERTAIN LAND IN DE KALB COUNTY, TENNESSEE, Odell Starnes, et al., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

182 F. Supp. 899

UNITED STATES of America upon relation and for use of TENNESSEE VALLEY AUTHORITY, Plaintiff, v. AN EASEMENT AND RIGHT OF WAY 150 FEET WIDE AND 582.4 FEET LONG OVER CERTAIN LAND IN DE KALB COUNTY, TENNESSEE, Odell Starnes, et al., Defendants.

Civ. A. No. 313.

United States District Court M. D. Tennessee, Northeastern Division.

February 24, 1960.

Charles J. McCarthy, Gen. Counsel, Tennessee Valley Authority, Knoxville, Tenn., for plaintiff.

McAllen Foutch, Smithville, Tenn., for defendants.

WILLIAM E. MILLER, District Judge.

This is a condemnation proceeding instituted by the Tennessee Valley Authority, hereinafter called "TVA," to condemn an easement and right of way for an electric power transmission line. The defendant landowners have filed a motion which seeks to require TVA to file a more definite statement of the easement rights taken. TVA contends that such easement rights are sufficiently described in the pleadings and that the defendants' motion should be denied.

The easement and right of way herein condemned provides for the erection and maintenance of a single line of poles or transmission line structures as follows:

"A permanent easement and right of way for electric power transmission purposes, consisting of the perpetual right to enter and to erect, maintain, repair, rebuild, operate and patrol one line of poles or transmission line structures with sufficient wires and cables for electric power circuits and telephone circuits, and all necessary appurtenances, in, on, over, or across said right of way, together with the right to clear said right of way and keep the same clear of brush, trees, buildings, and fire hazards, and to remove danger trees, if any, located beyond the limits of said right of way, the plaintiff to remain liable for any direct physical damage to the land, crops, fruit trees, fences and roads, resulting directly from the operations of the construction and maintenance forces of plaintiff in and about the erection and maintenance thereof, all upon, under, over, and across the following described land:"

This identical easement has been judicially reviewed and approved as not being vague or indefinite. United States ex rel. and for Use of Tennessee Valley Authority v. Russell, D.C.E.D.Tenn.1948, 87 F.Supp. 386; United States ex rel. Tennessee Valley Authority v. Puryear, D.C.W.D.Ky.1952, 105 F.Supp. 534; United States ex rel. and for Use of Tennessee Valley Authority v. Easterly, D.C. E.D.Tenn.1948, 87 F.Supp. 390; United States ex rel. and for Use of Tennessee Valley Authority v. Payne, D.C.E.D. Tenn.1948, 87 F.Supp. 393.

I am of the opinion that the defendants are not entitled to a more definite statement of the rights taken, and the defendants' motion is, therefore, denied.

At the hearing of the foregoing motion, the parties requested that the Court issue instructions to the Commissioners regarding certain legal questions which have arisen in this action. The Court feels that such a request is proper and would assist the parties in the presentation of their proof and aid the Commissioners in passing upon the evidence. The following instructions cover these questions.

1. Plan and Profile Map of the Transmission Line. A declaration of taking has been filed in this case which vests title to the easement in the Government by operation of law. 40 U.S.C.A. § 258a (1952). A copy of the declaration of taking has been filed in the Register's office of De Kalb County, the county in which the land lies. The description of the easement contained in the declaration of taking refers to a map which is also filed in the Register's office of De Kalb County. This map is an engineering drawing which shows, both in plan and profile, the land within the easement area and also the exact manner in which the transmission line will be built, including the number and height of the poles or towers, if any, to be placed on the easement, their exact location, the height of the conductors above the ground at all places along the right of way, and many other details of construction. It will be noted from the map in the present case that no poles or towers are to be erected upon this particular tract.

The Court is of the opinion that this map is incorporated by reference into the declaration of taking and constitutes a part of the description of the easement rights taken in this proceeding. Howenstein Realty Corp. v. Richardson, 1943, 77 U.S.App.D.C. 299, 135 F.2d 803; Jefferis v. East Omaha Land Co., 1890, 134 U.S. 178, 10 S.Ct. 518, 33 L.Ed. 872; Kuhn v. Chesapeake & O. Ry., 4 Cir., 1941, 118 F.2d 400; Noonan v. Lee, 1862, 2 Black 499, 67 U.S. 499, 17 L.Ed. 278; United States v. Brewer-Elliott Oil & Gas Co., D.C.W.D.Okl.1918, 249 F. 609.

The Commissioners are therefore instructed that the foregoing map must be considered as a part of the description of the easement rights taken herein.

Even in the absence of a plan and profile map, the actual construction of the transmission line may, under the doctrine of "practical construction," fix and define the extent of the easement rights taken. Tennessee Public Service Co. v. Price, 1932, 16 Tenn.App. 58, 65 S.W.2d 879, certiorari denied Oct. 15, 1932; Tennessee Electric Power Co. v. Holt, 1926, 3 Tenn.App. 372; Winslow v. City of Vallejo, 1906, 148 Cal. 723, 84 P. 191, 5 L.R.A.,N.S., 851; City of Lynchburg v. Smith, 1936, 166 Va. 364, 186 S.E. 51; Snodgrass v. Crane, 1943, 57 Cal.App.2d 565, 134 P.2d 862; Harper v. Jones, Ohio Com.Pl.1946, 74 N.E.2d 397; Pennsylvania Water & Power Co. v. Reigart, 1937, 127 Pa.Super. 600, 193 A. 311; Mary Helen Coal Co. v. Hatfield, 1914, 75 W.Va. 148, 83 S.E. 292.

2. Future Changes in the Transmission Line. Since, as indicated above, the construction rights have been fixed and defined by the plan and profile map and/or the actual construction of the transmission line, any substantial departure therefrom in the future would constitute an additional taking for which compensation must be paid at that time, but not in this proceeding. This rule is stated in 18 Am.Jur., Eminent Domain § 354 (1938), as follows:

"§ 354. Plans and Specifications as Regards Nature of Improvement. —It has been held in a number of cases that the plans, specifications, or stipulations of the condemner as to the nature of the improvements to be constructed on or about the premises sought to be condemned, or the use to be made of such premises, are admissible in evidence to enable the jury to fix the damages of the owner of the premises with more precision. The petitioner may give them in evidence, or the defendant may have them produced on motion. * * * any marked departure from the plans as shown in the profiles submitted, or from the stipulations in evidence, as to the character of the work to be done, will subject the condemner to an action for damages in favor of the landowner" emphasis added.

See also Raymond v. State, N.Y.Ct.Cl. 1955, 208 Misc. 43, 143 N.Y.S.2d 354; East Peoria Sanitary Dist. v. Toledo, P. & W. R. R., 1933, 353 Ill. 296, 187 N.E. 512, 89 A.L.R. 870. Therefore, the Commissioners in arriving at their estimate of just compensation in this proceeding should not consider the possibility of substantial changes in the transmission line at some future date.

3. The Measure of Damages. The measure of damages when an easement is taken is the difference between the fair market value of the property before and after the taking. Olson v. United States, 1934, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236, affirming 8 Cir., 1933, 67 F.2d 24. The fee value of the land within the right of way is not allowed because, as stated in United States v. Cress, 1917, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746,

"If any substantial enjoyment of the land still remains to the owner, it may be treated as a partial instead of a total divesting of his property in the land. The taking by condemnation of an interest less than the fee is familiar in the law of eminent domain" 243 U.S. at pages 328-329, 37 S.Ct. at page 385.

See also United States v. 2,648.31 Acres of Land, etc., 4 Cir., 1955, 218 F.2d 518, which held that

"* * * where only an easement is taken, the fact that the fee remains in the landowner must be taken into consideration, the entire fee or rental value not being recoverable" at page 523.

It is also proper for the witnesses to arrive at their estimate of just compensation by valuing the area covered by the easement immediately before and after the taking plus incidental damages, if any, to the remainder of the property outside the easement area. United States v. 213.43 Acres of Land, etc., D.C.D.N.D.1952, 108 F.Supp. 446; United States v. 25.88 Acres of Land, etc., D.C.E.D.N.Y.1945, 62 F.Supp. 728; Puget Sound Power & Light Co. v. City of Puyallup, 9 Cir., 1931, 51 F.2d 688.

No construction or maintenance damages are to be assessed in this proceeding. The property damage clause of the easement provides for the plaintiff:

* * * to remain liable for any direct physical damage to the land, crops, fruit trees, fences and roads,

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