Dixie Electric Membership Corp. v. Kinchen

280 So. 2d 342, 1973 La. App. LEXIS 6586
CourtLouisiana Court of Appeal
DecidedJune 20, 1973
DocketNo. 9356
StatusPublished
Cited by5 cases

This text of 280 So. 2d 342 (Dixie Electric Membership Corp. v. Kinchen) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dixie Electric Membership Corp. v. Kinchen, 280 So. 2d 342, 1973 La. App. LEXIS 6586 (La. Ct. App. 1973).

Opinion

TUCKER, Judge.

This is a suit by Dixie Electric Membership Corporation, a Louisiana non-profit membership corporation, organized under Louisiana Revised Statutes 12:401-430, and engaged in the business of transmitting and distributing electricity for power, lighting, heating, or other such uses, in a number of parishes in the State of Louisiana. Plaintiff Dixie Electric sought to expropriate a hundred foot right-of-way in the northern portion of Livingston Parish for the purpose of a 69KV transmission and distribution servitude to give better service in the Watson to Holden, Louisiana, area.

A description of the proposed installation taken from the testimony of Mr. Floyd Barbay, the consulting electrical engineer who designed the transmission line in question, is given below:

The section of the 69KV transmission line running across the property to be expropriated consists of a single pole type of construction with two crossarms at the top. The basic pole is sixty feet tall. It is southern yellow pine, creosoted. The typical pole has a crossarm at the top which is eight feet long, and which is placed 3.S feet from the top of the pole. There is a six foot space beneath it, between it and the next cross-arm which is ten feet long. There is a string of four bells which extends along the crossarms to hold three conductors. The wire is about forty feet above the ground, and the poles are about three hundred feet apart. The pole being sixty feet tall and about sixteen inches in diameter at ground level, is buried eight feet in the ground, with the result that it extends about fifty-two feet into the air. There is one conductor on the tip-top of the pole, which is known as the static. The construction of the wire at this point is three-eighths of an inch in diameter, made of high strength steel. Its primary purpose is to drain off any static charges or lightening charges which might hit the line. This line protects the three conductors which are located beneath it, one conductor on the top cross-arm, and two conductors on the bottom crossarm. The wires that carry the “hot electricity,” the phase conductors, are 336-400 MCM aluminum, known as 86SR. They have twenty-six strands of aluminum and seven strands of steel. The minimum clearance of this line is twenty-seven feet, although the code calls for only twenty-one feet in an area accessible to pedestrians.

The suits brought by Dixie Electric to expropriate the surface needed for its servitude were consolidated for trial, and judgment was given for Dixie Electric granting the right of servitude and awarding judgments in favor of the several defendants, in varying amounts, for the surface rights expropriated and for severance damage caused to the remainder. Ten of these defendants have appealed or answered the appeal taken against them by Dixie Electric. The right to expropriate by Dixie Electric was not questioned on appeal. The sole question in each appeal centers around the amount of the award made for the surface rights taken and for various and sundry items of damage.

In the instant suit judgment was given by the trial court in favor of plaintiff, Dixie Electric Membership Corporation, and against the defendants, Leonard Kinchen, J. Walter Smith, L. Barbee Ponder, Jr., L. Barbee Ponder, III, Charles Law Ponder, John Lynn Ponder, H. Lloyd Smith, Hugh W. Smith, Jesna Smith Murray, Vida Rae Smith, Bonnie Sue Stewart Smith, Shelie Ann Smith and Leslie Lynn Smith, for a right-of-way one hundred feet in width over that property described as follows:

“A certain tract or parcel of land, situated in Section 16, T-6-S, R-5-E, Livingston Parish, Louisiana and being more [344]*344particularly described as follows: Commence at the northwest corner of the property of Leonard W. Kinchen, et al., thence east 403.18 feet along the north property line of Leonard W. Kinchen, to a point, and the Point of Beginning; then S 68° 24' E, 1377.09 feet to a point on the east property line of Leonard W. Kinchen; thence north 107.SS feet along the east property line of same to a point; thence N 68° 24' W, 1084.93 feet to a point on the north property line of Leonard W. Kinchen; thence west 271.65 feet along the north property line of same to the Point of Beginning, containing 2.83 acres more or less.”

The trial court awarded a servitude of right-of-way to the plaintiff and gave judgment in favor of the defendants in the sum of $2,122.50 for the value of the land taken, and in the sum of $1,000.00 “for servitude use and severance damages in this cause and for all cost and expert witness fees, as fixed by the court.”

Dixie Electric has appealed from the judgment of the trial court, alleging error on its part in apparently setting the value of the land expropriated at an excessive figure of $750.00 per acre, in awarding the landowners the full fee value of the land expropriated, and in awarding severance damage. Defendants answered the appeal, asking for an increase in judgment in the amount of $51,201.00.

No oral or written reasons for judgment were given by the trial judge. Simple arithmetic indicates, however, that $750.00 per acre, as borne out by a supplemental per curiam of the trial judge, was the basis for the award made in this suit as in several of the Dixie Electric suits consolidated for trial. We do not understand how the trial judge arrived at this basis for evaluation in view of the fact that Earl R. Graham, expert witness for nine of the defendants in these consolidated cases, appraised the land at trial for $1,000.00 per acre, while Dixie Electric’s appraiser, James C. Carpenter, appraised it at $466.67 per acre. Averaging estimates of expert witnesses, or drawing a mean between or among them has never been considered a sound basis for judgment in the expropriation suits of this state. We can find no reasonable basis in the record for the trial judge’s evaluation per acre of the land expropriated.

We remain unconvinced by the defendant’s expert witness, Earl R. Graham, who was employed by the defendant on the day before the trial began and viewed defendant’s property from the road only once. Mr. Graham relied upon only two comparable sales when testifying in court. It may be noted that in court Mr. Graham admitted to having had only one real estate transaction in Livingston Parish within the past year, and in fact that he had done very little real estate work within Livingston Parish within the past ten years. Despite the lack of experience with Livingston Parish property Mr. Graham testified glibly in court that the best use of any land in Livingston Parish is residential, and that almost all of the land in Livingston Parish is worth $1,000.00 per acre. Certainly the various comparable sales listed by James C. Carpenter in the ten Dixie Electric cases consolidated for trial are ample proof that there are many sales in Livingston Parish ranging from $300.00 to $500.00 per acre, including the timber thereon, which timber seems to give much of the land in Livingston Parish its highest and best use.

The two sales he relied upon as comparables are as follows: (1) a sale from Leonard Kinchen to his nephew Damien Kinchen of a ten acre tract at $2,200.00 per acre, and (2) a sale of industrial property which brought a price of $666.00 per acre. The first of these comparable sales is so grossly out of line with most sales in Livingston Parish that it commands little import. Gulf States Utilities Co. v. Hatcher, 184 So.2d 326 (La.App. 1st Cir. 1966). The Kinchen sale, although not necessarily suspect in a large family, was made on the terms of $500.00 [345]

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Bluebook (online)
280 So. 2d 342, 1973 La. App. LEXIS 6586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dixie-electric-membership-corp-v-kinchen-lactapp-1973.