Big Rivers Rural Electric Cooperative Corp. v. Royer

425 S.W.2d 569, 1968 Ky. LEXIS 426
CourtCourt of Appeals of Kentucky
DecidedMarch 8, 1968
StatusPublished

This text of 425 S.W.2d 569 (Big Rivers Rural Electric Cooperative Corp. v. Royer) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Big Rivers Rural Electric Cooperative Corp. v. Royer, 425 S.W.2d 569, 1968 Ky. LEXIS 426 (Ky. Ct. App. 1968).

Opinion

STEINFELD, Judge.

An electric power company sought to condemn an easement for a transmission line. From a judgment based upon a jury verdict the power company appeals. We affirm.

C. C. Royer and Cleo Royer, his wife, are the owners of 152 acres of farm land in Henderson County. The farm fronts on U.S. Highway 60 and adjoins the University of Kentucky Community College property on its northeast side and runs right up to the Henderson city limits. It has frontage on U.S. Highway 60 of approximately 3,000 feet on its northwest side. The old Henderson-Corydon Road encircles the property on its south boundary. There are 4,410 feet of frontage on the old Henderson-Corydon or Wilson Station Road, all of which frontage is available for subdivision lots and highly desirable as such. The property is rolling land with only 12 acres in crop cultivation. There are improvements on the farm, in part consisting of a residence, barns and stables. It was purchased by Mr. Royer for the purpose of subdividing and plans have been made to subdivide the property.

At the time the Royers purchased the land, and at the time of condemnation, the Henderson-Union RECC owned an easement over the land for the construction and maintenance of an electrical power transmission line. That easement did not specify the exact width. Henderson-Union also had the right of reasonable ingress and egress and had the right to trim and remove trees, brush and other growth that might encumber the distribution line. That line had seven active poles and one stub pole. Henderson-Union also had the right to construct guy wires and other appurtenances in connection with these poles.

On September 30, 1965, Big Rivers Rural Electric Cooperative Corporation condemned an easement which was superimposed over almost all of the former easement held by Henderson-Union. The center line of the easement condemned is 3,390 feet in length and the easement is 100 feet in width except that it is reduced to 30 feet for a distance of approximately 112 feet in the area near the barns and stables. There are 12 single pole structures located on the right of way, there are four guy wires at one of the angles in the easement, there are three guy wires at the other end and there is another structure that is guyed with a single guy arm. Some of the guy wires have common anchors and there are approximately five anchors on the easement. The transmission line carries 69,000 volts. It will replace the existing distribution line and will be used for distribution as well as transmission of power. After the new transmission line was erected the poles in the old distribution line were removed and the distribution line was entirely rebuilt [571]*571and strung on the transmission line poles under the new transmission lines.

Big Rivers also acquired the right to trim brush, remove trees and other structures that would be injurious to the lines and it acquired the right of ingress and egress so that it could have access to the transmission lines. Under the terms of the easement Big Rivers has the responsibility and liability to protect the landowners and is liable if any damage is done to animals, growing crops or to the landowners' property. The owners have the right to use their land for crops, pasture land, roadways or anything else that they want to put on the ground, except for trees, tall structures or anything that would interfere with the operation of the transmission lines.

The action was originally instituted in the Henderson County Court. KRS 416.-130; 416.230 to 416.310. The commissioners awarded the owners $5,500.00. All parties appealed, (KRS 416.060) and the jury in the circuit court awarded the owners $8,000.00. Judgment was entered on that verdict and Big Rivers has appealed. It claims that the verdict is excessive and should be set aside and that certain proffered photographs were erroneously excluded.

Mr. Melvin Hunt was the first valuation witness introduced by the owners. He had been in the real estate business for 20 years, was a realtor, had developed subdivisions and had appraised property. He explained the many factors which he had considered in estimating the before taking value and the after taking value. He said that he valued the property before the taking at $294,000.00 and thereafter at $256,000.00. The attorney for Big Rivers objected on three occasions when Mr. Hunt was testifying concerning what Hunt considered comparables. His objections were: “Object to that because of its size in relation to a 152 tract, ten acres”; “Object to that because of its size” and “Same objection there”. The court overruled the first objection, sustained the second objection and admonished the jury not to consider the sale being discussed and sustained the third objection. No other complaint, objection or motion was made by Big Rivers to the testimony of Mr. Hunt.

Mr. Hecht S. Lackey was the other appraiser who testified for the owners. He had been in the real estate business for approximately 35 years. He too described the property, explained what he considered its best use and based upon his experience in appraising, stated that the before taking value was $325,000.00. After relating the reasons for diminution in value he said that immediately after the taking the property as a whole would be worth $291,500.00 and that the difference was $33,500.00. There was no objection made nor should there have been because an experienced appraiser is not required to support his values by using comparable sales. Com., Dept. of Highways v. Sellers, Ky., 421 S.W.2d 581 (1967) ; Com., Dept. of Highways v. Blincoe, Ky., 418 S.W.2d 731 (1967) and Com., Dept. of Highways v. Reed, Ky., 414 S.W.2d 904 (1967).

On cross-examination, upon being asked what he took into account in fixing the sale price of the land, he explained that he had considered the same sales that Mr. Hunt had used and that he had considered “about all the land that’s been sold in that area.” He was interrogated as to various tracts that were sold. When he discussed one small tract counsel for Big Rivers moved “to exclude that sale as any indication of this because of its small size.” The objection was sustained and the jury was admonished not to consider that sale. Later that same attorney moved “to strike Mr. Lackey’s testimony because all of his comparable sales were not comparable and his testimony is without substantiation.” That motion was overruled. With the exception of one other objection which the court sustained and which related to the distribution easement, no other complaint was made regarding the testimony of Mr. Lackey.

In addition to claiming that the verdict was excessive, erroneous and not sustained [572]*572by sufficient evidence the movant claimed that the court should grant the new trial because of its failure “to strike the exorbitant testimony of the witness, Lackey, when motion was made therefor by counsel for the plaintiffs”.

There was no motion to strike Mr.

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Bluebook (online)
425 S.W.2d 569, 1968 Ky. LEXIS 426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/big-rivers-rural-electric-cooperative-corp-v-royer-kyctapp-1968.