Willsey v. Kansas City Power & Light Co., 51217

• Decision Date: 17 July 1981
• Docket Number: No. 51217,51217
• Citation: 6 Kan.App.2d 599,631 P.2d 268
• Parties: , 23 A.L.R.4th 611 Donald F. WILLSEY and Marjorie L. Willsey, Plaintiffs-Appellees, v. KANSAS CITY POWER & LIGHT COMPANY, Defendant-Appellant.
• Court: Kansas Court of Appeals

Page 268

631 P.2d 268

6 Kan.App.2d 599, 23 A.L.R.4th 611

Donald F. WILLSEY and Marjorie L. Willsey, Plaintiffs-Appellees, v. KANSAS CITY POWER & LIGHT COMPANY, Defendant-Appellant.

No. 51217.

Court of Appeals of Kansas.

July 17, 1981.

Review Denied Sept. 25, 1981.

Syllabus by the Court

1. Once a witness has qualified as an expert, a court cannot regulate the factors he uses or the mental process by which he arrives at his conclusion. These matters can only be challenged by cross-examination testing the witness' credibility.

2. The responsibility of defining the extent of compensable rights is in the courts and if it is established that value testimony was based on noncompensable items, or the credibility of the testimony is otherwise destroyed, the testimony should be stricken in response to a proper motion.

3. In any condemnation case the objective is to compensate the landowner for damages actually suffered. Remote, speculative and conjectural damages are not to be considered. Logic and fairness, however, dictate that any loss of market value proven with a reasonable degree of probability should be compensable, regardless of its source.

4. While conjectural damages are noncompensable, if fear exists in the buying public, is reasonable (or at least not wholly unreasonable), and in fact affects market value, the loss is compensable. The dangerous nature of power lines is a fact proven by common experience, and the impact of public fear of such danger on market value may be shown and compensated without independent proof of the reasonableness of that fear.

5. Mere personal fears of the owner or other witnesses of the presence of a transmission line cannot be made the basis upon which to predicate damages in a condemnation action.

6. While neither the owner nor anyone else may base an opinion of value on personal fear of power lines, an opinion of value of a qualified witness based on the existence of fear in the buying public in general which affects market value is admissible.

7. In a condemnation proceeding to acquire an easement for a high-voltage transmission line it is held : The trial court did not err in (a) admitting an expert opinion of market value based in part on public fear of power lines; (b) refusing to permit cross-examination of the landowner on his purchase price some years before the taking; and (c) in admitting expert opinion evidence of market value which took into account increased costs of future development caused by the presence of the easement.

H. Thomas Payne, of Payne & Jones, Chartered, Olathe, for defendant-appellant.

L. D. McDonald, Jr., of McDonald & Dykes, Overland Park, for petitioners-appellees.

Before FOTH, C. J., and PARKS and SWINEHART, JJ.

FOTH, Chief Judge:

Kansas City Power and Light Company appeals from a $39,300 judgment awarded by a jury to the landowners in an easement condemnation proceeding. The primary issue is whether the trial court erred in permitting the jury to consider expert valuation testimony based in part on the impact on market value of "buyer resistance" based on popular fear of high-voltage electric transmission lines.

Donald and Marjorie Willsey owned an undeveloped 75-acre tract of land near Lenexa, in Johnson County. It was an east-west 80, less the southeast five acres, with its shortened eastern side fronting Renner Road a quarter mile south of 95th Street, at about 98th Street. It was agreed that its highest and best use was to hold for future development of an unspecified nature. As of June 1, 1976, KCPL condemned a 90-foot easement running diagonally from a point near the southwest corner to a point 465 feet west of the northeast corner, virtually bisecting the tract. On the easement, which covered just over five acres, it was to erect up to five "H" frame metal towers supporting a 161,000-volt power line. The court-appointed appraisers awarded damages of $25,650 which KCPL paid into court. The Willseys appealed to the district court.

At trial, testimony was adduced from the landowner and from two expert appraisers on each side as to value of the tract before and after the taking:

                                           Before     Per Acre   After   Damages
                                           -------  ----------  -------  -------
                For Landowners
                  Don Willsey (landowner)  750,000    (10,000)  550,000  200,000
                  Rogers McCrae            438,300    ( 5,844)  384,250   54,050
                  Rex Vickers              562,500    ( 7,500)  491,100   71,400
                For KCPL
                  Curtis Bliss             434,000  (5,786.57)  417,000   17,000
                  Jack Forbes              431,250    ( 5,750)  416,600   14,650
                Jury Verdict:              466,500    ( 6,220)  427,200   39,300
                

As may be seen, the verdict was well within the bounds of the expert testimony.

Although KCPL also cites other references during trial to the alleged fear of power lines, the main focus of its complaint is on the testimony of the landowners' expert, Rex Vickers. After qualifying as a market analyst, realtor and appraiser, Vickers gave his opinion on before and after values. This was followed by a hearing out of the jury's presence to secure a ruling on the admissibility of his proposed testimony on the effect of the fear of power lines on market value. The court's ruling, in essence was:

"(I)f Mr. Vickers in good faith and in good conscience really and truly believes that the fear of electrical transmission lines affects the market, I will assure you he is going to be entitled to state that proposition. Now, if he starts putting on some sort of a song and dance and you are going to start using Newsweek magazine articles in trying to give corroboration to the substance of that part of his opinion, et cetera, et cetera, et cetera, I will simply declare he is not an expert, I will strike his testimony from the record.

....

"I am going to allow the Power and Light Company to do their song and dance that nobody pays any attention to them at all and compare comparables proving that the market doesn't recognize any detriment. I am going to allow landowner to prove that it does provide a detriment both in the development and in the desirability factor of the (multitude) of potential buyers."

Thereafter, in the presence of the jury, Vickers described the features of the land which contributed to and detracted from its value without the easement, and the effect on value of the presence of the easement. After he had listed and described a number of adverse factors he perceived, the critical exchange took place:

"Q. What, if any problem in the buyer market resistance, if you would, is there to building a home near high power wires or developing industrially near high power wires?

"A. Well, there is a certain amount of buyer resistance to high power or high voltage overhead lines.

"Q. Why?

"A. I would say people there is a number of things. Number One, people don't like the unsightliness of it, and then, of course, there is a latent fear."

(Motion to strike, overruled.)

"Q. Proceed, Mr. Vickers.

"A. There is a latent fear on the part of buyers due to this high voltage power line. This is due in part to some people, it may be imagined, and it may be due to what they see in the papers, on T.V. and hear on the radio

....

"Q. Mr. Vickers, have you seen any advertisements relative to this you are talking about?

"MR. PAYNE: The same objection, Your Honor. This goes clear beyond the scope. Clear outside the realm; speculative things he may have seen; hearsay.

....

"THE COURT: If the witness is indulging in remote and speculative, fanciful, conjectural considerations, obviously his expert opinion is not much value and he would be subject to cross-examination. Whatever it is that gives him his valuation opinion he can testify about it. Objection overruled.

"Q. Mr. Vickers, have you personally seen advertisements in the news media concerning danger of power lines, and proximity to power lines?

"A. Well, the Kansas City Power and Light Company itself is probably the one who propagates or who informs the public of the danger of getting in contact or close proximity to power lines. Yes, sir, I have seen it, I have seen the thing about, 'Don't fly a kite, don't get your model airplanes in the line, don't get a ladder close to these lines.' Many other things of this nature.

"Q. Mr. Vickers, have you in your experience as a real estate broker in talking to actual buyers in the pit, have those buyers expressed concerns to what you are relating to right now, to you as a realtor?

"A. Absolutely."

At that point, when the testimony was about to turn to other damage factors and to comparable sales, KCPL renewed its motion to strike and, when that was overruled, moved for a mistrial. The mistrial motion was likewise overruled and the trial proceeded.

As may be seen, the expert's opinion was that public fear of high-voltage lines affects the market value of land over which such lines pass. His further opinion was that such fear was engendered in part by advertisements warning the public of the dangers of high voltage lines, propagated by electric utilities in general and KCPL in particular. His opinion as to the existence of the fear and its source was based on his personal dealings with potential land buyers. The trial court's ruling that the testimony was admissible was based on the following reasoning: The witness was a conceded expert who was entitled to express his opinion; the factors on which that opinion was based went only to its weight and not admissibility; only if those factors went beyond his knowledge and expertise would his testimony be stricken; because the opinion was based on personal observation and experience in the market place it was admissible for such weight as the jury might choose to give it.

This rationale represents a distillation of rules derived from recent cases on expert testimony, notably City of Bonner Springs v. Coleman, 206 Kan. 689, 481 P.2d 950 (1971) and Morgan v. City of...