Ohio Public Service Co. v. Dehring , 34 Ohio App. 532 ( 1929 )

These cases were argued and submitted separately, but we find them so alike in character that we are considering both of them in one opinion. Both cases were brought in the court of common pleas by the Ohio Public Service Company to appropriate an easement or right of way extending along and across farmland.

In the Dehring case the proposed easement or right of way was 100 feet in width and 3,021 feet long, across a 120-acre farm in Benton township, Ottawa county, belonging to the defendant Gottfried Dehring. Some timberland was also involved, but we think it would serve no useful purpose to go into details. The defendant Rolland Buhrow has a farm lease upon the property, which expires in October of this year. The strip of land covered by the easement contains 7.16 acres. Upon this strip are located five towers, about 700 feet apart, along the center line of the strip, and to these towers are to be attached cross-arms, cables, and tower construction. Upon trial the jury returned a verdict allowing to the defendant Dehring $3,000 as compensation for the land taken, and $4,750 as damages to the residue. To the defendant Buhrow the jury allowed $30, as the value of his leasehold interest in said strip. The amount allowed Buhrow was agreed to, and there is no question about it. The Ohio Public Service Company, as plaintiff in error, seeks a reversal of the judgment as to the defendant Dehring.

On the trial of the case the court refused certain requests to charge before argument submitted by plaintiff, numbered 4, 5, 6, and 9.

By request No. 4 the plaintiff sought to establish the principle that the unsightliness of the towers and transmission lines could not be considered by the jury. We think that this request was properly refused, for the reason that unsightliness, which affected the value of the land, was a proper element for the jury to consider in determining damage to the residue.

Request No. 5 was as follows: "Danger from lightning, danger that a cable might break and fall, danger that a cable might fall on a wire fence, danger to crops by towers being blown over and danger to persons or live stock are too remote, speculative and uncertain to afford a basis for allowance of damages."

Request No. 6 was as follows: "The court charges you as a matter of law that you should not award defendant any damages on account of any fears of danger to himself, his family or livestock which they or any future purchaser might entertain on account of the construction or maintenance of this transmission line."

We think the danger and fear referred to in these requests were elements which, in so far as they affected the market value, might be considered in determining damages to the residue. Hayes v. Toledo Ry. Terminal Co., 6 C.C. (N.S.), 281, 16 C.D., 395, affirmed by the Supreme Court without report, Toledo Ry. Terminal Co. v. Hayes, 70 Ohio St. 425, 72 N.E. 1165; KentuckyHydro-Electric Co. v. Woodard, 216 Ky. 618, 287 S.W. 985;Beckman v. Lincoln N.W. Rd. Co., 85 Neb. 228, 122 N.W. 994, 133 Am. St. Rep., 655; Frazee v. Kentucky Utilities Co., 217 Ky. 424, 289 S.W. 675; Alloway v. City of Nashville, 88 Tenn. 510,13 S.W. 123, 8 L.R.A., 123.

Request No. 9 was based upon the theory that a witness who has never bought or sold any land occupied by towers and transmission lines, and has no personal knowledge of the sale or purchase of lands so occupied, is not qualified to testify as to the market value of the land not taken for the easement. We are of the opinion that such a witness, otherwise properly qualified, is not barred from testifying because he has not such personal knowledge and experience. There was no error in refusing plaintiff's requests.

An examination of the record shows that the trial judge committed no error of law upon the actual trial of the case to the prejudice of the plaintiff in error. A motion for a new trial was filed, however, which raised the question of the weight of the evidence. This motion was overruled before the judgment was entered on the verdict, and it remains for us to determine the question whether the verdict is excessive. We are of the opinion that it is excessive and manifestly against the weight of the evidence as to amount. We have decided, however, to allow aremittitur, and if the defendant in error Gottfried Dehring will remit as of the date of the judgment all in excess of the sum of $6,500 the judgment will be modified by this court accordingly, and as modified will be affirmed. If the defendant in error Dehring refuses to accept the remittitur, the judgment of the court below will be reversed for the reason that it is manifestly against the weight of the evidence, and the cause will be remanded for a new trial.

In the Darr case the jury returned a verdict for $1,000 as compensation and $2,000 as damages. We find no prejudicial error in the record in that case, except that the verdict is excessive and manifestly against the weight of the evidence. But we will also allow a remittitur in this case, and if the defendant in error Fred Darr will remit as of the date of the judgment all in excess of the sum of $2,250, the judgment will be modified by this court accordingly, and as modified will be affirmed. If the defendant in error Darr refuses to accept the remittitur, the judgment of the court below will be reversed for the reason that it is manifestly against the weight of the evidence, and the cause remanded for a new trial.

Judgments modified and affirmed.

LLOYD and RICHARDS, JJ., concur.