Basin Electric Power Cooperative v. Poindexter

305 N.W.2d 46, 1981 S.D. LEXIS 260
CourtSouth Dakota Supreme Court
DecidedApril 29, 1981
Docket13136
StatusPublished
Cited by9 cases

This text of 305 N.W.2d 46 (Basin Electric Power Cooperative v. Poindexter) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Basin Electric Power Cooperative v. Poindexter, 305 N.W.2d 46, 1981 S.D. LEXIS 260 (S.D. 1981).

Opinions

FOSHEIM, Justice.

This is an action in condemnation commenced by Basin Electric Power Cooperative to obtain a perpetual easement over certain parcels of land in Faulk County, South Dakota, for the construction and operation of an electrical transmission line. The appeal is from a verdict for appellee, Poindexter, assessing damages in the amount of $55,000. We reverse.

Appellee’s land consists of 35 quarters of contiguous pasture land which he operates as a 5600-acre unit. The transmission line would be installed on 5 quarters of that [47]*47unit, or 800 acres. The easement is located near the northeast property line of the unit. It is 200 feet in width and involves a total right-of-way of 48.54 acres.

Appellee, who pilots his own plane, supervises his ranching operation by air. He based his estimated damages to his ranch unit completely on his particular method of operation. Appellee testified that he commences examining the pasture by plane at the boundary line of the 5600 acres and then proceeds throughout the pasture to observe his livestock and other matters that may need attention. He claims that the electrical towers and wires would adversely affect his ability to properly supervise the unit as previously done, and that this includes the entire pasture in diminishing degrees from the power line. He testified that the difficulties that would be engendered by the power line would diminish the value of the 5600 acres by $316,000. He indicated that his before market value of $350.00 per acre applies if the buyer were also a pilot. Ted Jennings, a rancher in the vicinity of appellee’s land, testified for the defense. His opinion, based upon appellee’s testimony, was that the entire 5600-acre unit would be damaged $25.00 to $50.00 an acre by the easement.

The trial court instructed the jury that the just compensation due appellee as the owner of the property is an amount of money representing the difference in the market value of the whole unit before it was condemned, taken, and damaged, and its market value after it was condemned, taken, damaged and put to the use for which it was condemned.

The jury was further instructed that the just compensation due the land owner is that amount reasonably intended to compensate the owner for payment of the fair, market value of the specific land actually occupied by the steel structures, concrete and wires, plus the diminution in value of the balance of the right-of-way taken, together with the consequential damage to (if any), and the depreciation in value of, the remainder of the tract. In considering consequential damage to the remainder of the tract, the jury was instructed that the elements of damage must not be too remote, speculative, or uncertain.

Appellant contends that the instructions erroneously allowed the jury to assess consequential damages upon the entire 5600-acre tract when the only area shown by the evidence to be actually damaged was the five parcels consisting of 800 acres actually traversed by the transmission line. Appellant maintains that any evidence as to the rest of the tract was as a matter of law too remote, conjectural, and speculative to support consequential damages.

The only issue before the jury in a condemnation action is the amount of compensation to be paid for the property taken or damaged. SDCL 21-35-15. The measure of damages in cases involving a partial taking is the difference between the fair market value of the unit before the taking and the fair market value of what remains after the taking. State Highway Commission v. Olson, 81 S.D. 401, 136 N.W.2d 233 (1965); City of Bristol v. Horter, 73 S.D. 398, 43 N.W.2d 543 (1950). In State Highway Commission v. Hayes Estate, 82 S.D 27, 140 N.W.2d 680 (1966), we held that in applying this rule, severance damage to the remaining property is included in an award without being designated as such. The amount allowed for the property actually taken is not segregated from the damage to the remainder:

In estimating the damages to the remainder, or in other words, the depreciation in value of the part not taken, the landowner is entitled to have the jury informed as to all those facts which legitimately bear upon the market value of the ranch before and after the taking and those factors which would ordinarily influence a prospective purchaser in negotiating for the property. The manner in which the ranch was used before the taking and the manner in which it can be used after-wards is of prime importance. Anything which is directly injurious to its particular adaptability or detracts from its use at maximum efficiency affects market value and is competent and a legitimate [48]*48factor in establishing total damages sustained within the contemplation of an award of just compensation.

82 S.D. at 34, 140 N.W.2d at 684.

Great latitude is allowed in the reception of evidence to prove the value of property in condemnation cases, and generally any relevant and material evidence, if competent under general rules of evidence, is admissible to prove market value. If the proffered evidence tends to aid the trier of fact in arriving at a conclusion on the issue of value and damage, it should be received. State Highway Commission v. Hayes Estate, supra.

In Basin Electric Power Cooperative, Inc. v. Cutler, 88 S.D. 214, 217 N.W.2d 798 (1974), the ranch unit in question consisted of 5960 acres. Basin Electric took an easement over a 54.26-acre area. There were to be 15 towers installed on the land. As in this case, the evidence established that the owner supervised the ranch operation and checked on his cattle with the use of an airplane and that the electric towers would present problems in so doing. The jury found that there had been a $5.00 per acre decrease in value for each acre of the entire 5960-acre unit, resulting in a total award of $29,800. In reviewing the award in light of State Highway Commission v. Hayes Estate, supra, we said:

There is nothing wrong with the rule laid down by the Court for determining just compensation for the landowner. The formula of determining the value of the ranch before the easement and the value of the ranch after the easement is well recognized in fee title cases. The problem here is that the rule does not fit the evidence. If the jury is to be allowed to make a determination of severance damage to the entire unit there must be evidence of damage to the entire unit. Severance is not “manna from heaven”; it must be based on actual loss of value.
There are no “bread and butter” items listed by any witness as to the loss for the entire unit. All of the land in the ranch can be used for the exact purpose it is now being used after the easement is placed on the land; and that is a cow-calf operation which according to the experts is also the highest and best use to which this property can be put.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

LaMar Advertising of South Dakota, Inc. v. Heavy Constructors, Inc.
2008 SD 10 (South Dakota Supreme Court, 2008)
State Ex Rel. Department of Transportation v. Spiry
1996 SD 14 (South Dakota Supreme Court, 1996)
Corson Village Sanitary District v. Strozdas
539 N.W.2d 876 (South Dakota Supreme Court, 1995)
City of Sioux Falls v. Kelley
513 N.W.2d 97 (South Dakota Supreme Court, 1994)
City of Winner v. Bechtold Investments, Inc.
488 N.W.2d 416 (South Dakota Supreme Court, 1992)
South Dakota Department of Health v. Owen
350 N.W.2d 48 (South Dakota Supreme Court, 1984)
Basin Electric Power Cooperative v. Poindexter
305 N.W.2d 46 (South Dakota Supreme Court, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
305 N.W.2d 46, 1981 S.D. LEXIS 260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/basin-electric-power-cooperative-v-poindexter-sd-1981.