Whitewater River Watershed Joint District No. 22 v. Butler Rural Electric Cooperative Ass'n

626 P.2d 228, 6 Kan. App. 2d 8, 1981 Kan. App. LEXIS 251
CourtCourt of Appeals of Kansas
DecidedApril 10, 1981
DocketNo. 51,385
StatusPublished
Cited by3 cases

This text of 626 P.2d 228 (Whitewater River Watershed Joint District No. 22 v. Butler Rural Electric Cooperative Ass'n) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whitewater River Watershed Joint District No. 22 v. Butler Rural Electric Cooperative Ass'n, 626 P.2d 228, 6 Kan. App. 2d 8, 1981 Kan. App. LEXIS 251 (kanctapp 1981).

Opinion

Abbott, J.:

This is an appeal by the condemnee, Butler Rural Electric Cooperative Association, Inc., (Rural Electric) from a judgment awarding it damages of $2,058 from the condemnor, Whitewater River Watershed Joint District No. 22 (Watershed District). Rural Electric contends it is entitled to the full cost of an adequate line to replace the one affected by the taking.

The dispositive facts are basically undisputed. The Watershed District adopted a plan for the construction of watershed structures in the district, including site No. 18 which is the subject matter of this appeal. The dam at site No. 18 will cause some permanent impoundment of water and from time to time will flood the base of fifteen poles used in the Rural Electric distribution system. The electric distribution line involved serves between 70 and 75 rural electric consumers who live in the southeast portion of Harvey County and the northwest portion of Butler County, Kansas. The electric distribution line runs east-west along a section line north of the dam, then turns north and runs north along that section line. Six poles along one section line and nine poles in the other area will be affected. Watershed District commenced condemnation proceedings against Rural Electric, seeking the right to temporarily flood and submerge the base of the power poles in question and to take Rural Electric’s right to install poles in the permanent impoundment which lies below 1379.9-foot elevation. Appraisers were appointed and, based on what the parties recognize as obviously erroneous instructions that are not in issue on appeal, awarded damages to Rural Electric of $6,000. Watershed District appealed the award and the case was tried to the district court.

Evidence was presented as to the elevation of the poles, the frequency and depth of flooding, the various solutions available and their costs. The case was tried on the basis that the line could remain in its same location by replacing fifteen poles with longer and larger ones, or it could be rebuilt in a different location. The existing wires will be used if the line is raised, but the fifteen existing poles must be replaced. The cost of rebuilding the line in a different location would cost nearly three times more than it would cost to raise the height of the existing line. The appraisers and trial court all found that it would be more economical to raise the existing line and awarded damages on that basis. Rural [10]*10Electric argues that that was error and it should be awarded the cost of rebuilding the line around the impoundment area. Rural Electric also maintains the trial court erred in computing damages for the cost of raising the line.

The basic figures used by both parties’ witnesses originated with Rural Electric’s expert witness, Emmett Green, who is an electrical engineer with Allgeier, Martin & Associates, Inc. Green computed what it would cost to remove the fifteen existing poles and replace them with longer and stronger poles, including the addition of some new hardware not now being used on the shorter poles. Green’s report estimated the cost of replacement at $5,742, plus engineering fees and overhead of $1,148, for a total of $6,890. He testified at trial that those figures would need to be increased by five percent to compensate for inflation between the date of the report and the date of taking. Two of the three appraisers testified that they used Emmett Green’s figures in arriving at their award of $6,000.

Watershed District’s only witness as to the amount of damages was Lloyd W. Shank, a retired director of utilities and chief engineer for the Kansas Corporation Commission. Shank testified rather extensively concerning accounting principles involved, and at various places in his testimony stated what he considered to be the proper legal method of awarding damages in order to avoid non-betterment. Shank computed Rural Electric’s damages by accepting Green’s figures as to the cost of removing and replacing poles. To avoid non-betterment, he proposed that the difference between the current cost to install the existing poles and the cost to install larger and longer poles, plus the cost of removing the existing poles, be awarded to Rural Electric as its damages. He made no allowance for crossbars, groundwires and miscellaneous items totaling $1,694 included in Green’s figures (and his) on the theory those items were improvements to the existing line. Nor did he make any comment on the five percent increase for inflation that Green testified would be necessary to bring the figures current as of the date of taking. As we view Shank’s testimony, it appears he accepted Green’s figures, expressed his opinion as to how damages should be computed and arrived at a figure of $2,058.

The trial judge in effect awarded damages for only the top portion of the poles. Each pole to be replaced is 35 feet in length, [11]*11and the trial judge deducted the installed unit price of $120 from the installation cost of a taller and larger pole. Rural Electric is thus forced to pay $120 for each new pole to be installed. Admittedly, it will have the 35-foot poles that are removed; however, the record contains no evidence of the salvage value, if any, of a used pole. Other equipment apparently necessitated by the longer and larger poles is forced upon Rural Electric without compensation.

We first dispose of Rural Electric’s argument that merely raising the line in an area subject to infrequent flooding over various periods of time is not an adequate substitute. Rural Electric makes a persuasive argument as to why the line should be relocated. The fact remains, however, that Rural Electric’s own expert witness testified that raising the line is feasible and permissible under existing codes and Kansas Corporation Commission rules and regulations, and he himself proposed it as a viable alternative to relocating the line. The trial court found for Watershed District on this issue, and substantial and competent evidence exists to support that finding.

As we view Watershed District’s argument, it advocates the use of the depreciated replacement method modified by the non-betterment cost rule espoused by Mr. Shank, which appears to be an accounting method and not a reasonable method of awarding damages. Rural Electric opts for yet another alternative—the substitute facilities approach. This method of determining compensation was defined in City of Wichita v. Unified School District No. 259, 201 Kan. 110, Syl. ¶¶ 3-8, 439 P.2d 162 (1968):

“Where property already devoted to public use by one agency of government is taken, through condemnation proceedings, by a different governmental agency, the compensation due the former is such an amount as will provide equivalent necessary replacements for the property so taken.”
“The rule requiring compensation in sufficient amount to provide needed equivalent replacements is applicable to buildings and land alike.”
“In computing the replacement value of public buildings taken in condemnation proceedings, factors of depreciation and functional obsolescence are not to be considered.”
“The cost of adequate substitutes necessary to replace public facilities taken in condemnation proceedings may be more or less than the value of the property taken.”

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Bluebook (online)
626 P.2d 228, 6 Kan. App. 2d 8, 1981 Kan. App. LEXIS 251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitewater-river-watershed-joint-district-no-22-v-butler-rural-electric-kanctapp-1981.