Opinion
6-3-1957
PACIFIC GAS AND ELECTRIC COMPANY, Plaintiff and Appellant, v. W. H. HUNT ESTATE COMPANY, a Corporation, Defendant and Respondent.* Civ. 8950.
Robert H. Gerdes, F. H. Pearson, Charles T. Van Deusen, San Francisco, Malcolm A. MacKillop, San Francisco, and Carr & Kennedy, Redding, of counsel, for appellant. L. C. Smith, Redding, for respondent.
PACIFIC GAS AND ELECTRIC COMPANY, Plaintiff and Appellant,
v.
W. H. HUNT ESTATE COMPANY, a Corporation, Defendant and Respondent.*
June 3, 1957.
Hearing Granted July 31, 1957.
Robert H. Gerdes, F. H. Pearson, Charles T. Van Deusen, San Francisco, Malcolm A. MacKillop, San Francisco, and Carr & Kennedy, Redding, of counsel, for appellant.
L. C. Smith, Redding, for respondent.
VAN DYKE, Presiding Justice.
This is an appeal from a judgment based upon a jury verdict which awarded respondent corporation, hereinafter called Hunt, $5,500 as representing the market value of easements over the land of Hunt condemned by plaintiff-appellant, hereinafter called Pacific, and $32,000 as severance damages to the land of Hunt not taken.
By its complaint Pacific sought to condemn an easement for the construction, operation and maintenance of two electric transmission lines. The Hunt property contains approximately 7,600 acres of land. It has two operating transmission lines on it that were built in 1920-1921. The right of way for the lines to be built extends 17,382 lineal feet across the property and the easement strip approximates 52.6 acres. Auxiliary road easements extend 8,892 feet upon the property and occupy 4.01 acres. The spoil deposits occupy .87 acres. The lines will be carried on steel towers. For 9,335 lineal feet they will be carried on paralled sets of squat snow towers about 20 feet square at the base. For the rest of the way the lines will be carried on a single tower line, the towers averaging 28 feet square at the base. There will be 26 of the smaller towers and 10 of the larger. The ground clearance normally varies from 47 to 57 feet and the maximum sag at 125~ Fahrenheit brings the wires in places to within 30 feet of the ground. 15 new gates in existing fences were to be constructed and Pacific sought the right to use 3 gates maintained by Hunt and the further right, should Hunt construct fences across the access roads or under the lines, to place gates therein. Grounding wires are carried on the transmission towers 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 line and come to ground along several towers.
No contention is made that the award for the easements taken is excessive. In fact, the amount so awarded approximates the upper limits of Pacific's own valuation testimony. But Pacific contends that the part of the judgment based upon the award for the severance damages must be reversed for a retrial of that issue because the award is excessive, and because of alleged errors in the admission of testimony on the part of Hunt, coupled with the use of that testimony by Hunt's valuation witnesses in testifying as to the extent of severance damages.
A brief statement of pertinent rules of law will suffice. In such a case as this the sole issue for consideration by the jury is the amount to be awarded to the condemnee for the easements and rights sought to be condemned. People v. Ricciardi, 23 Cal.2d 390, 402, 144 P.2d 799. Market value is the yardstick in this state for measuring such compensation. People v. Ricciardi, supra; People v. Al. G. Smith Co., 86 Cal.App.2d 308, 194 P.2d 750. Sev erance damages can be obtained only to the extent that they flow directly and proximately from the severance and cannot be proved by testimony of mere fears of remote or contingent possibilities or damages. (17 Cal.Jur.2d pp. 673-674.) Opinion evidence as to severance damages based upon incompetent and inadmissible matters must be rejected and cannot be submitted to the jury. San Diego Land & Town Co. v. Neale, 88 Cal. 50, 25 P. 977, 11 L.R.A. 604; People ex rel Department of Public Works v. Schultz Co., 123 Cal.App.2d 925, 268 P.2d 117; City of Stockton v. Ellingwood, 96 Cal.App. 708, 275 P. 288. Testimony of witnesses concerning damage to property must be confined to the diminution in value resulting from lawful elements of damage. Rose v. State of California, 19 Cal.2d 713, 739, 123 P.2d 505. Opinion evidence as to market values must be based upon property uses which are reasonably probable and connot be based upon elements which, though affecting values, are mere possibilities and no more. People v. Ocean Shore Railroad, 32 Cal.2d 406, 425-426, 196 P.2d 570, 6 A.L.R.2d 1179. Opinions as to severance damages based upon speculative, remote, imaginary, contingent or merely possible elements of damage are inadmissible. Arnerich v. Almaden Vineyards Corp., 52 Cal.App.2d 265, 272, 126 P.2d 121. Hypothetical questions addressed to valuation witnesses which are not based on facts shown by the evidence are improper. People v. Wilson, 25 Cal.2d 341, 349, 153 P.2d 720. With reference to experiment testimony admitted over objection, Pacific relies on the rule that evidence of such experiments which are not shown to have been performed under conditions finding factual support in the evidence or which only tend to confuse the jury with collateral matters are improper. People v. Ely, 203 Cal. 628, 632-633, 265 P. 818. We may note an illustrative application of some of the foregoing rules made in the case of Illinois Power & Light Corp. v. Talbott, 321 Ill. 538, 152 N.E. 486, 490, a decision frequently cited by our own courts, from which he quote the following on the subject of severance damages: 'The burden of proof was on the appellee to show damage to the part of the land not described in the petition and not included within the three-rod strip, and the ultimate fact which he was required to prove was a depreciation of the market value of the land because of conditions which would furnish the basis for a common-law action. He must prove the same facts which he would be required to prove in a common-law action. If any supposed element of damage is not a proper subject of proof or of consideration in the common-law action, it is not a proper subject of proof in the eminent domain proceeding or of consideration as an element affecting the market value. The cases cited established beyond doubt that depreciation in market value will not, alone, sustain a claim for damages. The depreciation must be from a cause which the law regards as a basis for damages. 'Testifying to amounts of damage, where there is no basis of damage, is of no value as evidence.' * * * The appellee, to recover damages to his land outside the three-rod strip, was required to prove a physical disturbance of a right which he enjoyed in connection with that land. His witnesses who testified to damages ranging in amount in their respective opinions from about $1,000 to about $4,000 did not state on their direct examination in what the damages consisted. They were cross-examined as to the basis of their opinions. * * * The elements of damage which they took into consideration were danger of injury from electricity by reason of broken wires, danger from fire, danger from lightning, danger to crops by the towers being blown over, danger of trespass by the appellant's employees and others, and inconvenience in farming. All these elements were not mentioned by all the witnesses, but every witness mentioned some of them. Damages being recoverable only where there is a physical disturbance of a right of property, the mere fear of a remote and contingent injury which may possibly occur, but whose happening is altogether speculative and uncertain, is not regarded by the law as an element entering into the damages which may be allowed to the owner. The damages must be direct and proximate and not such as are merely possible or may be conceived by the imagination. * * * 'Whether the line would expose persons and stock to danger was a question of fact * * * and no evidence that it would do so was offered. Evidence was introduced by the petitioner to show that there was no danger except in case a wire should break and fall upon a person or animal before striking the ground. This evidence was uncontradicted and the contingency so remote as to furnish no basis for the allowance of present damages. The danger from fire, which was referred to, arose from the possibility that the employees of the appellant in inspecting the line might throw away lighted cigarettes and cause fire, which might extend into the land outside the strip. There was a remote possibility that this might occur. If it did, it would be the result of a tortious act of the employee, for which the appellee would have his remedy against the person doing the wrong or perhaps against the appellant. The danger from lightning suggested was that the lightning might be conducted down one of the towers and might jump and injure any one who was standing near. Danger was anticipated to crops if the towers should be blown over on the field while the crops were on the ground. Danger was also anticipated by trespasses of the appellant's employees or others on the land of the plaintiff outside of the three-rod strip and also by the employees throwing down the fences at the ends of the strip and leaving it open. All these imagined sources of danger were so remote, speculative, and uncertain as to afford no basis for the allowance of damage which their anticipated occurrence might occasion.'
It is Pacific's contention that testimony as to wholly speculative risks from the presence of the lines was admitted over its objection, the rulings on the objections being reserved subject to motion to strike; that precise motions to strike were at the close of such testimony directed to these very defects and were denied; that a great part of the total evidence addressed to the lowering of market value was made up of such erroneously admitted testimony; that the effect of the errors alleged to have been committed was magnified by permitting all of the objectionable testimony to come in over constantly repeated objections and constantly reserved rulings; that 25% of the total testimony taken was thus erroneously admitted, and that the final ruling of the court admitting it resulted in its being magnified in the minds of the jury.
A brief resume of the type of testimony here under attack follows: Bill Bogue was a 16-year old boy who worked with a sprinkler system beneath a power line on his property. Once he had lifted a pipe straight up in the air so that it touched or came near the line and he received a shock. Jesse Hufford, Jr., testified that once while irrigating land with a pump he placed his hand at one end of a pipe to stop a water leak, that the water sprayed over the pump and that he received a shock which knocked him down. Wilson Pritchett, a teacher of electrical engineering at the University of California, testified that the purpose of an overhead wire carried on the towers was to diffuse lightning along the line to other towers so that the whole shock would not go down a particular tower near which the lightning might strike, but would be diffused a mile along the line; that he thought there might be an appreciable hazard should lightning strike the line within half a mile of a person near a tower, saying there would be a likelihood of 'gradients as far as ten feet away if you were standing with your feet separated so that a dangerous current could flow up one leg and down the other.' He had nothing to say as to the probability of lightning striking the line as against the probability that it was equally apt to strike anyone on the ranch. Having so testified generally, this witness then gave testimony concerning some assumed hazards. He testified that aluminum pipe and solid jets of water containing the usual amount of mineral salts were good conductors of electricity and that if in irrigating by a sprinkling system under the lines a solid jet of water as thick as the width of a thumbnail should strike one of the lines electricity would be conducted down the jet and along the aluminum pipes used in such system and that anyone contacting the jet or the pipe at that moment of time might well be electrocuted. Charles A. Hufford testified that he had a power line on his ranch; that he experienced no difficulty in effding cattle under it; that he felt the damage to the Hunt land would be occasioned by the potential hazard of handling cattle in the corrals through which the lines would run and in hindrance to sprinkler irrigation of land under the lines; that he felt most of the severance damages would be caused by hazards created by the power line. Aubrey Gross, who runs a general merchandising business in Millville, in the course of which he sells installed sprinkler systems, testified to an experiment he had conducted to determine the distance that water will go into the air from such systems under certain conditions. He said he made a test to determine how high in the air water would go if a sprinkler head came off of a riser and that, using 35 pounds of pressure against water coming out through a single riser, he had seen the water go 34 feet in the air. He was not sure the column of water had been solid at that elevation, but said it looked to be solid. It was further testified that no sprinkler system would be designed so as to send a solid jet of water 34 feet in the air and such occurrence could only happen by misadventure and not by design. On this subject Pritchett was asked to assume that 5 of 6 risers with their topping sprinkler heads would become clogged by moss or dirt or such like material and that the sprinkler head on the remaining riser would come off, thus permitting a solid jet of water to be projected straight up toward the overhead lines. He said a person properly placed to receive a shock might be electrocuted if the solid jet hit a wire. There was testimony that sprinkler systems are often operated under overhead lines; there was no testimony that anyone had ever been injured by such operations. All of these defects were pointed out ot the trial court during the argument on the motions to strike. Hunt put on two valuation witnesses, both of whom, on cross-examination as to their testimony of diminution of market value of the land not taken, said that they considered among other things that the presence of the line would prevent or make hazardous irrigation by sprinkling the land under the lines and both considered hazards from lightning striking the lines and injuring or killing men and animals. Throughout the trial the matter of hazard from the overhead lines as an element reducing the market value of the land not taken was stressed and much was made of it in the argument to the jury. It was not confined to proof of the value of the easements taken as increasing the burden of those easements. It was principally directed at, and generally used with regard to, the issue of severance damages. Both valuation witnesses stated they could not segregate from their general estimate of severance damages the part based upon the hazards referred to. Pacific points out that, although the only issue before the jury was the market value of the easements and the amount of severance damages, which latter would be determined by the reduction in market value of that portion of the Hunt ranch outside the easements, yet counsel for Hunt in argument continuously stressed the potential danger of electrocution, fires, lightning bolts and the like. An example of this follows: 'The fact of the matter is * * * if it were not for Mr. Pritchett I would not have been informed * * * I think you will have a different outlook upon these high-tension electric towers for the rest of your life and the reason why that other prople don't, members of the jury, is because that the public utilities have been successful in keeping the people in the dark.' Pacific further points out that the severance damages total about 9% of the highest market valuations placed on the entire Hunt property.
The testimony adverted to herein comes squarely within the ban declared by the cases we have cited. The hazards described were not shown to have been probable and on the contrary fit squarely into the classification of remote and fanciful speculation. The testimony should have been stricken and the jury instructed to disregard it. In Rose v. State of California, supra, a divided court, treating of the situation here presented where valuation witnesses consider improper items of damage, and either cannot or will not eliminate them from their estimates of severance damages, held that admission of the valuation testimony, notwithstanding such defects and the refusal to strike the same, did not constitute prejudicial error requiring reversal where the motion to strike was not accurately directed at the improper evidence alone. Throughout the opinion, however, it is recognized that valuation testimony ought not to be based in part upon non-compensable items of damage. The situation we have here, taking the whole record into consideration, is one where the probable effect of the errors pointed out was to greatly enhance the severance damages allowed and to leave the record in a condition wherein we cannot say that grave injustice has not been done to the appellant. We think that where cross-examination establishes that the opinion of a valuation witness as to the diminution in the value of property is based partially upon noncompensable items of damage which he is unable to segregate from lawful elements of damage, a motion to strike his testimony, accurately pointing out the defects, ought to be granted. If that had been done in this case there would have been no proof of severance damage. We think the trial as to severance damage was unfair and that in itself constitutes a miscarriage of justice.
That part of the judgment appealed from fixing damages for the property taken is affirmed. That part of the judgment awarding severance damages is reversed and the cause is remanded for a further trial upon that issue alone.
PEEK and SCHOTTKY, JJ., concur. --------------- * Opinion vacated 319 P.2d 1044.