Witbeck v. Big Rivers Rural Elec. Co-op. Corp.
| Decision Date | 03 March 1967 |
| Citation | 412 S.W.2d 265 |
| Parties | A. V. WITBECK et al., Appellants, v. BIG RIVERS RURAL ELECTRIC COOPERATIVE CORPORATION, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
David C. Brodie, Owensboro, for appellants.
Ridley M. Sandidge, Sandidge, Holbrook, Craig & Hager, Owensboro, for appellee.
Big Rivers Rural Electric Cooperative Corporation, pursuant to KRS 416.230 et seq., sought to condemn the right of way for an easement for the construction of a 69,000 volt transmission line across the southern edge of the farm of A. V. Witbeck and his wife. The Witbecks have appealed from a judgment on a verdict for $2,400. Appellants claim that the court erred in various rulings concerning the admissibility of evidence; that there was a variation in the description of the property condemned; that the appellee should be liable for exemplary damages; and that the verdict was outside the range of the testimony.
Appellants were the owners of a 365-acre farm. The easement sought was 100 feet in width and extended 2,053 or 2,058 feet over the extreme south end, or rear, of the farm. The center line of the easement varied from 206 to 232 feet from the south boundary line of the farm. Four single poles with three live lines and one dead line were to be placed on the easement. The right of way embraced 4.7 acres. The west third of the easement crossed an area which included about 1 1/4 acres of timber. The remainder of the easement was over cleared land.
Appellants sought to introduce testimony to show that the fear of danger from a 69,000 volt line lessened the value of their property. In Gulledge v. Texas Gas Transmission Corporation, Ky., 256 S.W.2d 349, it was held that for such purpose the following should be established in sequence: (1) The basis in reason and experience for fear; (2) a satisfactory showing that the fear entered into the calculations of a substantial number of persons who deal in the buying or selling of similar property; and (3) the depression of market value by reason of the existence of such fear.
There is no merit in this contention because the testimony sought to be introduced did not conform to the requirements of the Gulledge case; no ruling was obtained by the court on part of the testimony, Commonwealth, Department of Highways v. Taylor County Bank, Ky., 394 S.W.2d 581; and answers to all factual questions asked on the point were read to the jury from a pretrial deposition of the same witness. Appellants obtained a favorable response concerning the dangerousness of a 69,000 volt line; hence, they were not prejudiced. They made no effort to establish step three required by the Gulledge case.
It is also contended that they should have been permitted to prove the market value of a so-called 'five acre grove, a part of the Witbeck farm.' No avowal was taken to show the answer to the question. The claimed error is not available on appeal. Pearce v. Rawlings, Ky., 373 S.W.2d 426. In any event it was indirectly an effort to prove a price tag. Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844. In Commonwealth, Department of Highways v. Gardner, Ky., 388 S.W.2d 360, the point was decided thus:
The cases cited are inapplicable.
Appellants' objection to a question asked on direct examination by counsel for appellee was sustained. The gist of the question was whether the construction of a power line made any difference in the before and after market values of a farm. Appellants' counsel then examined the witness on cross-examination on the same point. He then moved to exclude the answers but obtained no ruling by the court. He now complains that 'Mere offers as to comparable property are not admissible.' The proffered testimony was not to show a comparable sale but to show that construction of a power line was not a damaging factor. For this reason, and because he waived any objection by failure to insist on a ruling, there is no merit in such contention.
Appellants complain that Witbeck was prevented from testifying concerning the suitability of the five-acre portion of the farm, part of which was taken, for use as a 'black walnut grove.' Four other witnesses for the landowners were permitted to testify to the suitability of the five acres for a black walnut grove. The testimony of Witbeck would have been cumulative. There was no prejudicial error in the denial of its admission. Cody v. Nortof, Ky., 267 S.W.2d 403.
Complaint is made that appellants were not permitted to show evidence of productivity of the walnut grove. Appellants offered to show that the grove would produce in perpetuity four trees per year worth $125 each. There was no evidence to show any reasonable probability that timber would be marketed from the land within the immediate future. There was no error in the rejection of the testimony. Robinette v. Commonwealth, Department of Highways, Ky., 380 S.W.2d 78, and cases cited therein. Commonwealth, Department of Highways v. Eubank, Ky., 369 S.W.2d 15, cited by appellants, supports this view.
Two witnesses for the landowners were asked whether a grove of timber on the five acres would enbance or lessen the value of the land. Witness Durham, by avowal, said it would lessen the value; therefore, this answer would not have helped appellants had it been admitted. Witness Baker was permitted to state that removal of the timber would decrease the value of the farm; therefore, appellants cannot complain. His testimony was admitted.
Appellants complaint that they were not permitted to show the qualifications of witness Lively concerning his knowledge of the price of black walnut timber growing on the ground. An examination of the lengthy harangue and avowal on this point shows that the court properly refused to permit such evidence to be admitted as being an effort to 'price tag' the walnut timber. Commonwealth, Department of Highways v. Gardner, Ky., 388 S.W.2d 360.
Appellee was permitted, by amendment in circuit court, to correct the description of the easement condemned. The easement was actually occupied as originally staked, and its location on the ground was never changed. It was the...
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Cary v. Pulaski Cnty. Fiscal Court, s. 2011–CA–002272–MR, 2011–CA–002274–MR, 2012–CA–000187–MR, 2012–CA–000226–MR.
...Commonwealth, Dept. of Highways v. Gilles, 516 S.W.2d 338, 339 (Ky.1974). As further explained in Witbeck v. Big Rivers Rural Electric Cooperative Corp., 412 S.W.2d 265, 269 (Ky.1967) (overruled on other grounds in Commonwealth, Dept. of Highways v. Stephens Estate, 502 S.W.2d 71, 73 (Ky.19......
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Cary v. Pulaski Cnty. Fiscal Court, 2011-CA-002272-MR
...of Highways v. Gilles, 516 S.W.2d 338, 339 (Ky. 1974). As further explained in Witbeck v. Big Rivers Rural Electric Cooperative Corp., 412 S.W.2d 265, 269 (Ky. 1967) (overruled on other grounds in Commonwealth, Dept. of Highways v. Stephens Estate, 502 S.W.2d 71, 73 (Ky. 1973)),where an ent......
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...The real estate is of substantial value. 'The measure of damages is the same as in condemnation cases.' A. V. Witbeck v. Big River Rural Elec. Coop. Corp., Ky., 412 S.W.2d 265 (1967). We are unable to conclude at 'first blush' that the verdict is excessive, and that is the test. Cole & Cran......
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...Even though Big Rivers took the land before it was allowed or authorized by the interlocutory judgment, Witbeck v. Big Rivers Rural Electric Cooperative Corp., Ky., 412 S.W.2d 265 (1967), overruled on other grounds by Commonwealth, Dept. of Highways v. Stephens Estate, Ky., 502 S.W.2d 71, 7......