Dixie Electric Membership Corp. v. McLin

280 So. 2d 323, 1973 La. App. LEXIS 6582
CourtLouisiana Court of Appeal
DecidedJune 20, 1973
DocketNo. 9352
StatusPublished

This text of 280 So. 2d 323 (Dixie Electric Membership Corp. v. McLin) 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. McLin, 280 So. 2d 323, 1973 La. App. LEXIS 6582 (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. Plain[325]*325tiff 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, and between it and the next crossarm 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-eights 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 crossarm, 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 case judgment was rendered by the trial court granting a right-of-way to Dixie Electric across defendant’s property, which is a tract containing 80 acres of land. The servitude in question encompasses 2.41 acres within the right-of-way. It is,, more particularly described as follows:

“A certain tract or parcel of land situated in the south one-half of Section 33, T-S-S, R-4 — E, Livingston Parish, Louisiana, and being more particularly described as follows: Commence at the southeast corner of Section 33., T-5-S. R-4E, thence S 89° 47' W 14.95 chains; thence north 6.667 chains; thence S 89° 47' W 5.0 chains to a point, said point being the southeast corner of the property of Stanley H. McLin, Jr.; thence continue S 89° 47' W along the southern property line of Stanley H. McLin, Jr. a distance of 1242.16 feet to a point, and the Point of Beginning; thence N 68° 26' W 1149.87 feet to a point on the west property line of Stanley H. McLin, Jr.; thence south 107.53 feet along the west property line of same to a point; thence S 68° 26' E 860.13 feet to a point on the south property line of Stanley H. McLin, Jr.; thence N. 89° 47' E 269.47 feet along the [326]*326southern property line of same to Point of Beginning;, containing 2.41 acres more or less.”

Judgment was also granted by the trial court awarding defendant $1,807.50 as compensation for the property expropriated; $1,099.13 in addition for the timber located on the servitude; and a further sum of $1,000.00 for severance damages. The expert witness fee of Earl R. Graham was fixed at $500.00 and taxed as costs of court.

Dixie Electric has appealed from this judgment alleging as error the action of the trial court in evaluating the property expropriated at $750.00 per acre; in awarding the defendant landowner the full fee value of the land expropriated; in awarding an additional sum for the timber located on the servitude; and in awarding severance damages. Defendant has answered this appeal, seeking an increase in judgment.

No oral or written reasons for judgment were given by the trial judge. Simple arithmetic indicates, however that $750.00 per acre, borne out by a supplemental per curiam of the trial court, was the basis for the award made in this suit as in eight of the Dixie Electric suits consolidated for trial. We do not believe the evidence justifies such a blanket .award, and do not understand the method by which this figure was reached, especially 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 $333.33 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 court’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 a few days before the trial began and gave defendant’s property only a cursory examination. Our inability to rely upon the findings of Mr. Graham as an expert witness has been well expressed by us in three other cases this day decided; Dixie Electric Membership Corp. v. Kinchen, La.App., 280 So.2d 332; Dixie Electric Membership Corp. v. Kinchen, et al., La.App., 280 So.2d 342; and Dixie Electric Membership Corp. v. Whitehead, La.App., 280 So.2d 315. Our confidence in Mr. Graham as an expert witness was further shaken by his testimony in the Sibley case this day decided, La.App., 280 So.2d 346, in which he stated unequivocally, when asked if he were competent to appraise property, “No, I am not,” and was accepted by the trial court as an expert witness over the objection of plaintiff’s counsel. The testimony in that case was adopted by stipulation in this case.

The comparables used by Mr. Graham in the Shell Sibley case are the same ones used in this case. The three Rice sales which Mr. Graham used in the Shell Sibley case aré equally objectionable as comparables in this case for the reason that they are sales of subdivision property with all utilities, on blacktopped roads, one mile north of Walker, Louisiana. The property in this case is a rectangular-shaped piece of property seven miles north of Walker, Louisiana, with its only access being a dirt road across the Crown-Zeller-bach property in front of it, and with no utilities.

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Related

Dixie Electric Membership Corp. v. Whitehead
280 So. 2d 315 (Louisiana Court of Appeal, 1973)
Dixie Electric Membership Corporation v. McDowell
280 So. 2d 306 (Louisiana Court of Appeal, 1973)
Dixie Electric Membership Corporation v. Kinchen
280 So. 2d 332 (Louisiana Court of Appeal, 1973)
Michigan Wisconsin Pipeline Company v. Fruge
227 So. 2d 606 (Louisiana Court of Appeal, 1970)
State, Department of Highways v. Hart
249 So. 2d 310 (Louisiana Court of Appeal, 1971)
Dixie Electric Membership Corp. v. Kinchen
280 So. 2d 342 (Louisiana Court of Appeal, 1973)
Dixie Electric Membership Corp. v. Sibley
280 So. 2d 346 (Louisiana Court of Appeal, 1973)

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Bluebook (online)
280 So. 2d 323, 1973 La. App. LEXIS 6582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dixie-electric-membership-corp-v-mclin-lactapp-1973.