Pacific Gas & Electric Co. v. W. H. Hunt Estate Co.
Pacific Gas & Electric Co. v. W. H. Hunt Estate Co.
Opinion of the Court
In this eminent domain proceeding plaintiff appeals from a judgment on a verdict awarding $5,500 as the market value of right-of-way easements for two electric transmission lines and service roads over defendant’s land, plus $32,000 as severance damages to the remainder of the land. We have concluded that the various attacks made by plaintiff upon defendant’s evidence concerning severance damages—most of which go to the weight rather than admissibility or legal sufficiency of the evidence—are without merit and that the judgment should be affirmed.
Defendant’s property comprises approximately 7,612 acres, or about 11.85 square miles, and is located in Shasta County northeast of the town of Millville. Two operating transmission lines, built in 1920 and 1921, cross the easterly portion of the property. The right of way now sought for additional transmission lines will extend 17,382 lineal feet across defendant’s land and will contain 52.6 acres. The road easements will be approximately 8,893 feet long and contain 4.01 acres. Spoil deposits will cover about .87 acres in addition. Thus the easements will cover a total of approximately 57.48 acres.
The grounding wires which are carried on the transmission towers are for the purpose of diffusing lightning so that the full force of a lightning bolt will not spend itself down one tower but will be spread along the lines and come to ground down several towers, thus protecting the lines.
Plaintiff first contends that the trial court erred to plaintiff’s prejudice in refusing to strike testimony of Wilson Pritchett “regarding alleged danger created by the conductivity of water and aluminum, such testimony being irrelevant to any issue and unrelated to any evidence in the case.” Pritchett, since 1947 an instructor of electrical engineering at the University of California, testified as an expert. The testimony to which plaintiff objects was offered to establish that it would be dangerous to irrigate with a sprinkler system beneath the proposed power lines. Pritchett stated that “a stream of water projected upward with sufficient velocity to reach the line but not sufficient velocity to break it up into a spray would conduct electricity sufficient to electrocute a person . . . [A] stream of water . . . about the size of your thumbnail . . . that would connect and [cause electricity to] go down the stream through the flowing, through the pipe and also energize the pipe itself.” Plaintiff argues that this evidence should have been excluded from consideration of the jury because (1) there is “no evidence in the record to show that it would be practical, either physically or economically, to sprinkle there,” and (2) “There is no evidence
Defendant’s witness, John A.- Bryant, in the business of real estate, insurance and farming, with offices in the city of Redding, testified that he had had personal experience in the operation of farm property and of ranches, including “the operation of the Moore Ranch, one of the biggest ranches in the Anderson-Cottonwood Irrigation District.” He had also personally “irrigated by sprinkler, by check, row crop and overnight.” He was familiar with defendant’s property and also “with properties upon which sprinkler systems have been used and are being used in this locality for the production of crops of the same type and contour and topography as the Hunt [defendant] land in cultivation.” He had investigated the water table; stated that water from a creek would also “provide some means and assistance of irrigation”; and knew that “the neighbors’ places south, most of them are irrigated by sprinkling systems.” Bryant further testified that “I know in a prospective buyer’s opinion that was looking at that [defendant’s] ranch, it would be only prudent to irrigate. In fact, the ranch is not being put to its highest use by not irrigating right now. . . . There is no question but what a sprinkler system is the most economical” and would also require less water than other systems. Other witnesses testified that defendant’s land is riparian to a creek having “a year round stream . . . capable of being used for irrigation,” and that the water table in that locality is between 20 and 25 feet. This evidence obviously surmounts plaintiff’s contention as to the asserted impracticability of sprinkler irrigation of defendant’s land, as well as its further objection that “sprinkler irrigation . . . would be at best a speculative use not properly to be considered. ...” Further, as in Pacific Gas & Elec. Co. v. Hufford, ante, p. 545 [319 P.2d 1033], (Sac. 6844, see p. 557), plaintiff in its complaint herein pleads that “it is . . . necessary that ... no well shall be located, drilled or operated within said [transmission line easements] by defendants, their successors or assigns, and that said defendants, their successors and assigns be prohibited from so doing.” Thus, as in the Hufford case plaintiff, by seeking to expressly prohibit defendants from placing or operating a well within the transmission line easements precludes itself from objecting to competent evidence relating to possible sprinkler irrigation. Plaintiff’s argu
With respect to plaintiff’s second argument, the court told the jury that Pritchett’s testimony “pertaining to the conductivity of water under a specified circumstance is received subject to a motion to strike. That motion to strike will be granted unless evidence shall be presented to you that either for the purpose of irrigation ... or for some other purpose there is some prospect of a jet of water striking the plaintiff’s power lines on these premises. . . . [T]he Court . . . will hereafter inform you whether this testimony is to be considered by you or not in the light of further evidence as it may appear.” Thereafter the court ultimately denied plaintiff’s motion to strike and so informed the jury, although, argues plaintiff, no showing had been made of the prospect, which the court had mentioned to the jury, of a jet of water striking plaintiff’s power lines. The following evidence sufficiently indicated this prospect, however, and thus, in plaintiff’s words, met “the criteria which the court itself properly established. ’ ’
As mentioned hereinabove plaintiff’s evidence indicated that clearance of its power lines would never be less than 30 feet with maximum sag. Defendant’s witness Gross, who, among other activities, lays out and installs sprinkler systems, testified that “we made a test this morning to determine the height that the water would go straight up in the air if a sprinkler head came off of a riser. We had no actual figures to work from, so we made an actual test with a gage of thirty-five pounds pressure at the outlet where the sprinkler head came off the pipe, and the column of water under thirty-five pounds pressure rose thirty-four feet in the air. . . . [T]here was a column of water . . . from visual observation, it was approximately a solid column. ... It looked to me like . . . there was a jet, a solid jet of water still intact at the height of thirty feet.” Although Gross also stated and defendant concedes that, as pointed out by plaintiff, a solid stream of water could not be projected straight up in the air when a sprinkler is operating correctly, Gross’ testimony, as he explained on the witness stand, was based on a situation which would arise if a sprinkler head came off of a riser so that the jet of water would shoot straight up in the air instead of out at an angle, and he further stated that “if a man had a system
It should be further noted that “Although testimony relative to experiments is primarily addressed to the discretion of the trial court ‘it must appear that the conditions or circumstances were in general the same in the illustrative case and the case in hand. . . . [T]he determination whether the conditions were sufficiently similar to make the experiments of any value in aiding the jury is a matter resting in the sound discretion of the judge.’ [Citations.] ” (Beresford v. Pacific Gas & Elec. Co. (1955), supra, 45 Cal.2d 738, 748 [9].) A reasonably foreseeable hazard to be created
Plaintiff’s next contention is that the court erred to plaintiff’s prejudice in refusing to strike the testimony of Gross regarding the cost of installing a sprinkler system and the experiment conducted by him, “such testimony being incompetent, irrelevant to any issue, and unrelated to any evidence in the case. ’ ’ What we have already said concerning the testimony of Gross disposes of plaintiff’s arguments with reference to evidence of the experiment or test conducted by him. Gross was also permitted, over plaintiff’s general objection that the matter was “incompetent, irrelevant and immaterial, ’ ’ to testify concerning the increased cost of installing a sprinkler system on the plowed portion of defendant’s property so as to avoid the danger of electrocution arising from carrying the sprinkler pipes back and forth under the proposed power lines. This increased cost was $4,363.84. Plaintiff now urges, in reliance upon People v. Al. G. Smith Co. Ltd. (1948), 86 Cal.App.2d 308, 311-312 [194 P.2d 750], and City of Los Angeles v. Kerckhoff-Cuzner etc. Co. (1911), 15 Cal.App. 676 [115 P. 654], that it was improper for the court to receive evidence of increased costs as additional damage, rather than to confine the testimony to market
In the second place, evidence of the increased cost of irrigation appears to have been proper. In San Bernardino etc. Ry. Co. v. Haven (1892), 94 Cal. 489, 493 [29 P. 875], it was ‘ ‘ claimed by appellant that the court erred in admitting evidence of the increased cost which might result from a system of irrigation upon some tracts, which would have to be adopted if the railroad were built, beyond that which would be suitable if the road was not built. The objection urged is, that the land is uncultivated, and that no such system has yet been adopted, or is in contemplation of adoption. The land appears to have been unadapted to cultivation unless irrigated, and the damage caused by the building of the railroad would be increased if, by reason of such building, the owner was compelled to incur greater expense in its irrigation. Although then uncultivated, the land was shown to be adapted to cultivation. If so, the increase of any cost for bringing it under cultivation, caused by the building of the railroad through the land involved, would be a legitimate subject of inquiry for the purpose of ascertaining the damage sustained by the owner.” The judgment was affirmed.
In the third place, no prejudice to plaintiff appears from the introduction of the cost figures. As defendant points out, they were offered only as an element to be considered by the expert in forming his opinion as to severance damage arising from depreciation in market value of the remainder of defendant’s property as affected by the presence of the power lines. In City of Los Angeles v. Frew (1956), 139 Cal.App.2d 859, 866 [294 P.2d 1073], the trial court permitted defendants’ witnesses to testify that the cost of installing an irrigation system would be increased by reason of the
Plaintiff next asserts that prejudicial error was committed by the trial court in refusing to strike the testimony of defendant’s valuation witnesses “who based their estimates of severance damages on remote, incompetent and speculative considerations,” more particularly, upon elements relating to sprinkler irrigation. This contention is again based upon plaintiff’s argument that evidence as to the hazards of sprinkler irrigation should have been excluded, and is disposed of by what we have said hereinabove with respect to the admission of such evidence. Also, the statement by defendant’s valuation witness Bryant that in reaching the $5Q,000 severance damage figure to which he testified he had taken into consideration ‘ ‘ seven or eight things, ’ ’ and that “that’s the exact same amount of proportion that the jury awarded in the Hufford case,” furnishes no ground for reversal. This statement was not elicited by defendant. Rather, it was given by Bryant upon searching cross-examination by plaintiff’s counsel attacking in detail Bryant’s valuation testimony. Further, plaintiff points to no evidence that the jury were aware of the Hufford case. No prejudicial error is shown by the trial court’s refusal to grant plaintiff’s motion to strike “his whole testimony now-—on the basis that he hasn’t considered a proper element of damage.”
Finally, plaintiff urges that the award of severance damages “is excessive, based upon incompetent and inadmissible evidence, without support in the record, and the result of passion and prejudice.” Without here detailing plaintiff’s
The judgment is affirmed.
Dissenting Opinion
I dissent, for the reasons expressed by Mr. Presiding Justice Van Dyke in the opinion prepared by him for the District Court of Appeal (Cal.App.), 311 P.2d 878.
Appellant’s petition for a rehearing was denied January 28, 1958. McComb, J., was of the opinion that the petition should be granted.
Reference
- Full Case Name
- PACIFIC GAS AND ELECTRIC COMPANY (A Corporation), Appellant, v. W. H. HUNT ESTATE COMPANY (A Corporation), Respondent
- Cited By
- 9 cases
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- Published