NEBRASKA ELECTRIC GENERATION & TRANSMISSION COOP., INC., Aрpellant v. TINANT, et al., Respondents
No. 11500
Supreme Court of South Dakota
March 25, 1976
Order denying petition for rehearing May 20, 1976
241 N.W.2d 134
The issues as to the wrongful appropriation of corporate assеts by respondents Donald Emmick and Robert Emmick and the issues of fraud and actual and exemplary damages resulting therefrom are remanded to the trial court for trial upon the merits. Although Cannon may or may not have been an innocent purchaser of the assets of Oahe Enterprises, Inc., appеllant Golden has failed to state a cause of action against him for fraud which would be a basis for actual damages and which is a necessary predicate for exemplary damages.
All assignments of error not disposed of herein are rendered moot by the above disposition of No. 11511.
The judgment of the trial court in No. 11224 is hereby vacated and the issues raised on appeal are rendered moot by the disposition of No. 11511.
Judgment will be entered by the trial court in accordance with the foregoing.
All the Justices concur.
WILDS, Circuit Judge, sitting for WINANS, Justice, disqualified.
Johnson, Johnson & Eklund, Gregory, for defendants and respondents.
COLER, Justice.
The power line easement, 100 ft. in width, diagonally crosses five different quarter seсtions of respondents’ lands located in three different sections and was acquired for the purposes of the construction of H-frame structures for a 115 KV electric transmission line. The right-of-way amounted to, for the purposes of the taking, 17.84 acres and would accommodate nine 2-pole struсtures and one 3-pole structure. The jury awarded damages of $35,000 and Nebraska Electric has appealed. We reverse.
Appellant‘s arguments are essentially that (1) erroneous instructions were given relative to the damages to the ranch unit, (2) excessive damages appeared to have been given under the influence of passion or prejudice and on the grounds that there was insufficient evidence to sustain the jury verdict and (3) certain evidence was improperly admitted.
The testimony of respondents indicates that they, as father and son, owned approximately 3,000 acrеs in Todd County, South Dakota, and treated only 1800 of those acres, being the home place, as a unit affected by the taking beyond the 17.84 acres encompassed within the 100 ft. easement.
Although the issue was not raised by the parties by reason of a stipulation which consolidated the cases for trial, the question arises as to the propriety of an award in a lump sum to separate owners. The lack of unity of ownership in a father-son ranch operation with properties being separately owned by them, even though based on a stipulation, was determined to be improper in State Highway Cоmmission v. Fortune, 1958, 77 S.D. 302, 91 N.W.2d 675. In this case, as in State Highway Commission v. Fortune, supra, the record refers only to the entire unit without regard to the separate ownership by the father or the
Instruction No. 72 taken in essence from the South Dakota Pattern Jury Instructions (Civil) 141.05 having treated the ownership as joint, without proof and contrary to the plain import of the separate actions commenced, causes us to remand for either separatе trials or separate verdicts as it is in the province of the jury, not the parties, to determine the damage occasioned by the separate owners.
Appellants claim that, although they did not object to Instruction No. 7, the instruction was contrary to the decision of this court in Basin Electric Power Cooperative, Inc. v. Cutler,
The court decisions annotated at South Dakota Pattern Jury Instructions (Civil) 141.05, which is the basis for the instruction, as well as the numerous decisions cited in Basin Electric Power Cooperative, Inc. v. Cutler, supra, have clearly established the unit rule of severance damаges where a fee is taken and the condemned lands are ultimately fenced off to prevent livestock encroachment on the ribbons of steel, concrete or asphalt or unfordable waters which fill an irrigation canal. Railway Company v. Mason, 1909, 23 S.D. 564, 122 N.W. 601; Railway Co. v. Land & Cattle Co., 1911, 28 S.D. 289, 133 N.W. 261; State Highway Commission v. Ullman, 1974, 88 S.D. 492, 221 N.W.2d 478; Basin Electric Power Cooperative, Inc. v. Cutler, supra.
We have not been called upon tо determine whether the same rule applies to a highline easement which is perpetual in nature but does not take fee title and the utility does not fence off the right-of-way so as to truly sever one part of the property from another.
In the petition for condemnation, appellant prayed “That the interest in the land be condemned and title be vested in the
While there is no severance by an electrical highline, in the sense that there is no actual division of a parcel of land, thus making the instruction given inappropriate, yet consequential damages mаy flow from such an interference with a farm or ranch unit which occasions damages by reason of the taking.
As this court intimated in Basin Electric Power Cooperative, Inc. v. Cutler, supra, and as is apparent from the decisions of numerous courts that have considered consequential damages in highline cases, including those cited both in the briefs and in oral argument of аppellant and respondents3 it is manifest that:
“Where telegraph, telephone or power lines are constructed over private lands, and such lands are subjected to an exercise of the power of eminent domain for such purpose, the question of damages has not received uniform trеatment. Generally, the owner is entitled to payment of the fair market value of the land actually occupied by the poles or towers, plus the diminution in value of the balance of the right of way taken, together with the depreciation in value of the remainder of the tract.” 5 Nichols on The Lаw of Eminent Domain, § 16.103[1]; 27 Am.Jur.2d, Eminent Domain, § 344.
“*** The elements of damage [to the remainder] must
not be remote, speculative or uncertain; they must be direct and proximate, and not such as are merely possible.” 5 Nichols on The Law of Eminent Domain, § 16.103[2].
The facts in the present case are clearly distinguishable from the facts in Basin Electric Power Cooperative, Inc. v. Cutler, supra, where the land over which the еasement was taken was a part of a cow-calf operation which was the highest and best use of the property. That parcel subject to easement was used strictly for grazing purposes, and did not affect the total unit. The Tinants, on the other hand, operated a sizable dairy operation, and dug four test wells, some in 1968 and some in 1970, to ascertain the quantity and quality of water. Although they had not irrigated any of the lands suitable for irrigation in the areas to be occupied by the highline, they purchased approximately 50 more milk cows in 1973 in anticipation of the additional forage and feed that could be grown on the land within their unit when irrigated. Appellants, through their expert witness, did not challenge the irrigability of the land nor that the highest and best use of the land would be for the production of food and forage for the dairy herd.
Appellant in its motion for new trial, in its assignments of error and on the brief claims thе verdict to be excessive as “appearing to have been given under the influence of passion or prejudice and on the grounds of insufficiency of the evidence to justify the verdict.” While we have held that a claim of excessive damages given under the influence of passion or prejudice is an appropriate claim of error in condemnation cases, State Highway Commission v. Bloom, supra, we have also noted that such a claim is more appropriate to tort actions, State Highway Commission v. Miller, 1968, 83 S.D. 124, 155 N.W.2d 780. Although the award may be generous, mere generosity is not enough. We can disturb the verdict only if the awаrd “is so extremely excessive as to justify the inference or conclusion that it is the product of corruption, passion or prejudice.” Tufty v. Sioux Transit Co., 1945, 70 S.D. 352 at 357, 17 N.W.2d 700, 702; Ross v. Foss, 1958, 77 S.D. 358, 92 N.W.2d 147. As stated in Ross v. Foss, supra, at 369, 92 N.W.2d at 153, “Our review of this record reveals no occurrence
Appellant‘s challenge to the sufficiency of evidence revolves around the basic question as to whether the lines diagonally crossing the irrigable acrеs made it impractical to utilize the center pivot irrigation system. The relative merits in efficiency and labor costs as well as soil types, land slopes and susceptibility to erosion given varying rates of water application with other irrigation systems, namely, the big gun and stationary systems, were before the jury. Whether a highline, when constructed, renders irrigable lands useless to center pivot irrigation and whether that system was the only feasible system are questions for the jury under proper instructions. Regier v. Nebraska Public Power District, 1972, 189 Neb. 56, 199 N.W.2d 742.
Had there been an adequate showing of unity of ownership, contiguity of the severаl tracts of land and the interrelationship of the various tracts of land to the total dairy operation, the jury may have been justified, we believe, in making an award of consequential damages to the unit.
As indicated in Instruction No. 7, the court determined that the unit constituted 1800 acres. Appellant‘s witness, Carr, оn the other hand, could account for only 1640 acres. This court has held that the determination of what constitutes the unit is ordinarily a question of fact to be determined by a jury on the evidence presented. “When there is no dispute in the facts, the question whether physically separated parcels of land constitute one parcel because of common use, is a question of law for the Court.” State Highway Commission v. Fortune, supra, 77 S.D. at 312, 91 N.W.2d at 682; State Highway Commission v. Bloom, supra; and State Highway Commission v. Olson, supra. The court
“‘In many cases the court can, as a matter of law, determine that lots are distinсt or otherwise, but ordinarily it is a practical question to be decided by the jury or other similar tribunal which passes upon matters of fact, which should consider evidence on the use and appearance of the land, its legal divisions and the intent of its owner and conclude whether on the whole the lots are separate or not. * * * ’ 4 Nichols on Eminent Domain, § 14.31, p. 715.”
The trial court may, however, determine as a matter of law whether some property which is noncontiguous may be considered a part of the unit, State Highway Commission v. Bloom, supra, but should not otherwise substitute its judgment for that of the jury.
Reversed and remanded for further proсeedings not inconsistent with this opinion.
DUNN, Chief Justice (dissenting).
I would dissent.
The majority opinion reverses the judgment on the basis of two issues that were never passed on by the trial court or raised as error on this appeal. I am aware that this court can and on occasion does raise new questions on appeal “in the intеrest of fundamental justice.” I see no such interest here. If the parties were satisfied with the size and the unity of use and ownership of the unit, I see no purpose in this court requiring a new trial on those issues.
Notes
“7
“It is established that the land being taken from these defendants by the plaintiff is a portion and a part of a larger tract of land belonging to these defendants, and consisting of 1800 acres more or less.
“When a portion of a tract of land is taken under condemnation proceedings, as here, just compensation due the landowner is that amount which is equal to the difference between the fair market value of the entire property immediately before the taking, and the fair market value of that part remaining immediately after the taking. In determining the amount of just compensation which you will award to the landowners in this case, you will consider the valuе of the property taken, and also the depreciation in value, if any you shall find, of the part remaining after the taking. Under the law, this latter element or item of just compensation is called severance, and it means the diminution in value of land which remains after a part of the land is taken, and whiсh diminution in value is a result of the taking. You will find and award to the landowner one sum which will represent the entire difference in value between the entire property before the taking, and the value of the remainder after the taking, even though separate and various items or elements enter into your dеliberations in arriving at that sum.”