Loyd v. Southwest Arkansas Utilities Corp.

Darrell Hickman, Justice.

This is an appeal of an eminent domain case from the Benton County Circuit Court.

The condemning authority is the Southwest Arkansas Utilities Corporation, appellee, and the landowners are Robert Loyd and Iris June Loyd, husband and wife, appellants. Southwest condemned a one hundred foot strip of land through property owned by the Loyds to construct an electric transmission line. One tract of land consisted of about thirty acres and is owned by Mrs. Loyd; the other land consists of a 359 acre farm owned jointly by the Loyds.

There is no question raised on appeal regarding Southwest’s right to take the one hundred foot strip of land nor the damages that were awarded for that taking. The only questions raised on appeal relate to Southwest’s taking of an undefined right of ingress and egress over all the Loyds’ property in addition to the one hundred foot right-of-way taken by Southwest. The jury awarded the Loyds one dollar for the additional easement on each tract of land.

The Loyds generally objected to the taking and tried the case on the theory that Southwest’s taking of such a right of ingress and egress amounted to a taking of an easement and it should therefore pay for the full market value of all the Loyds’ property. We agree with the Loyds that the judgment of the trial court must be reversed.

Southwest, as a power company, filed its complaint to condemn the Loyds’ land pursuant to Ark. Stat. Ann. § 35-301, et sequentes. These statutes grant the power of eminent domain to corporations such as Southwest to acquire rights-of-way.

Southwest’s complaint, in addition to seeking a permanent one hundred foot right-of-way across the Loyds’ land to construct and maintain an electric transmission line, also sought:

. . . The right of ingress and egress to, from and over said lands for doing anything necessary or useful to the enjoyment of the easement herein granted.

The Loyds, by pleadings, objected to the taking and to the court’s initial order granting Southwest possession of the land and the estates as sought in Southwest’s complaint.

Before trial Southwest sought an injunction against the Loyds to prevent them from interfering with Southwest’s right of ingress and egress as previously granted by the court’s order of possession. The trial court, by order, made the following finding:

The Court finds that it is necessary that the plaintiff [Southwest] from time to time, and at places known, and places which are presently unknown, go across, over and upon other and adjoining lands owned by the defendants in order to have all reasonable ingress and egress to the land described [the hundred foot strip of land].... for the purpose of maintenance and operation of said transmission line and facilities cnnstructed. . . .

The court denied in this same order the right of Southwest to use its right of ingress and egress for purposes of construction of the transmission line.

It was the Loyds’ position at the trial and on appeal that the taking of the right of ingress and egress was a taking of an easement; and, according to the Constitution of Arkansas and our decisions, Southwest had to pay the Loyds the full market value of the land as though it were taken in fee. This argument is based on our decision in Baucum v. Arkansas Power & Light Co., 179 Ark. 154, 15 S.W. 2d 399 (1929), and related cases. In the Baucum case we decided that when a power company acquires by condemnation a permanent right-of-way across the land of others, it becomes liable for the full value of the right-of-way as if the fee had been taken. This is based on an interpretation of the Arkansas Constitution, Article 12, § 9, which reads:

No property, nor right-of-way, shall be appropriated to the use of any corporation until full compensation therefor shall be first made to the owner, in money, or first secured by him by a deposit of money, which compensation, irrespective of any benefit from any improvement proposed by such corporation, shall be ascertained by a jury of twelve men, in a court of competent jurisdiction, as shall be prescribed by law. (Emphasis added).

We have consistently followed the Baucum case since. Arkansas Louisiana Gas Co. v. Burkley, 242 Ark. 662, 416 S.W. 2d 263 (1967). (A temporary easement is valued as the fair rental of the property during the time it is used. Mobley Const. Co. v. Fox, 201 Ark. 646, 146 S.W. 2d 905 [1941]).

The rationale of the Baucum case was that ordinarily a condemning authority, such as a power company, would lay a pipe line or erect a transmission line under or on the land and effectively take the land for all practical purposes. Structures could not be built over a pipe line nor under a transmission line and whatever incidental value a landowner might have in growing a crop on such land was insignificant compared to the taking. The Loyds argue Baucum applies to the easement taken in this case.

The Loyds’ expert witness testified extensively as to the damages the Loyds would suffer from the imposition of such a right of ingress and egress on their property and concluded, the damages, assuming the taking was a permanent right-of-way as defined in the case of Baucum, supra, would be the market value of the farm.

The court struck all the testimony of the expert witness and refused all instructions offered by the Loyds supporting their theory of the case.

Southwest argued to the trial court and on appeal that the right of ingress and egress taken was merely a “secondary easement.” Although the landowner must be paid for this taking of a valuable property right, payment as though it were taken in fee is unreasonable; that is because the right of ingress and egress sought would not prohibit the landowner from utilizing the property by building on it or developing it. Also, although permanent, the right of ingress and egress sought does not fit in the same category as a permanent right-of-way that is normally acquired by a power company to be used for locating a transmission line or pipe line.

The trial court adopted Southwest’s position and instructed the jury that the taking was really a “secondary easement.” The court’s instruction reads in full:

INSTRUCTION NO. 8:

In connection with the terms, “egress” and “ingress” as it has been used in this trial you are told that under the law once an easement such as the one in this case has been acquired for a right-of-way then the condemnor, in this case Southwest Electric Arkansas Utilities, acquires a secondary easement over other adjacent land owned by the defendant. You are further told that this secondary easement may be exercised when necessary and only in a reasonable manner in order to get on and off the right-of-way acquired in this action. You are further told that the secondary easement is a property right for which the plaintiff may be required to pay if you find under the facts of this case that a reduction in the fair market value of the defendant’s remaining land has occurred as a result of the imposition of the secondary easement.

Southwest’s argument is that we should adopt the views of the Virginia Supreme Court and that either our decision in Baucum does not apply to this case or should not be extended to the facts of this case; that is, Southwest should not be required to pay for the right of ingress and egress as though the land were taken in fee. Also, that the law permits such a taking and that the measure of damages should only be the difference between the value of the land before the “secondary easement” was taken and the value of the land after it is taken.

The Virginia Supreme Court, cited by Southwest, decided that although such a right of ingress and egress must be paid for, it is really a “secondary easement” to a right-of-way such as that acquired by Southwest. Virginia Electric & Power Co. v. Webb, 196 Va. 555, 84 S. E. 2d 735 (1954). The Virginia court in its decision quoted a definition of a “secondary easement” from Thompson on Real Property. That definition, in part, is as follows:

The right to enter upon the servient tenement for the purpose of repairing or renewing an artificial structure, constituting an easement, is called a secondary easement, a mere incident of the easement that passes by express or implied grant, or is acquired by prescription. . . This secondary easement can be exercised only when necessary, and in such a reasonable manner as not to needlessly increase the burden upon the servient tenement.

2 Thompson, Real Property, (Perm. Ed.), § 676, p. 343.

By definition a secondary easement goes with an existing easement and consequently would not have to be separately acquired. It either exists or it does not exist as an incident to an easement.

A secondary easement, then, is simply a legal device that permits the owner of an easement to fully enjoy all of the rights and benefits of that easement. Conversely, it is a legal device that prohibits an owner of a servient tenement from interfering with an easement owner’s enjoyment of the full benefits and rights of an easement.

However, a secondary easement does not necessarily exist in every case. For example, a highway department or railroad company would not have a right of ingress or egress over all adjacent land to its rights-of-way. It is not needed because access is inherent in such easements or rights-of-way. Nor would one exist where access to a right-of-way, such as that taken in this case, already exists.

We have never had an occasion to recognize a “secondary easement” and there is no need to do so in this case, because what Southwest sought and acquired in this case was not a secondary easement but a separate and distinct right of ingress and egress over all the Loyds’ property.

While we do not find it necessary to rule at this time that a secondary easement exists in some cases, neither do we reject the idea that such a right exists.

The Virginia decision and Southwest’s position is not only inconsistent, it is a position that can only mislead a jury that must decide fair compensation for any taking. It should be pointed out that the Virginia court does not follow our rule of compensation regarding the acquisition of a right-of-way by eminent domain.

It was only in the trial court’s instruction that this right of ingress and egress was called a secondary easement and although the court limited it to “. . . when necessary and only in a reasonable manner”, there was no essential change of the right granted in its original order of possession as later modified.

The right of ingress and egress obtained by Southwest in this case resembles very nearly, if it is not, what we commonly refer to as an easement. A general definition of an easement is a right which one person has to use the land of another for a specific purpose. A right-of-way is an easement and is usually the term used to describe the easement itself or the strip of land which is occupied for the easement. 25 Am. Jur. 2d Easements & Licenses, §§ 1 and 8. In this case the right of ingress and egress was the right granted to Southwest to go on and off, at places known and unknown, upon, over and across all the lands of the Loyds. In other words, any vehicle that would be needed for the maintenance or operation of the line could be driven across the Loyds’ land.

Southwest’s acquisition of its right of ingress and egress in this case is based on its right to condemn land pursuant to Ark. Stat. Ann. § 35-301, et seq., and Ark. Stat. Ann. § 73-276, et seq. Such statutes delegating the power of eminent domain are strictly construed in favor of the landowners because the power is in derogation of a common right. City of Little Rock v. Sawyer, 228 Ark. 516, 309 S.W. 2d 30 (1958). The only right of access granted by these statutes is the right to acquire a right-of-way or reasonable access. Ark. Stat. Ann. §§ 35-302 and 73-276.15. These statutes do not elaborate to include any right of ingress or egress such as that sought by Southwest in this case. A right-of-way must be surveyed and located, that is, defined. Ark. Stat. Ann. §§ 35-404 and 35-305. Southwest’s was not located, nor was it reasonable, as we have indicated. Our decision does not in any way relate to any right by common law that Southwest may have to reach its property, such as a way of necessity. Nor do we preclude the right to a secondary easement as we understand it.

Consequently, what Southwest sought and acquired, in addition to its one hundred foot right-of-way, was not authorized by the statutes. The Loyds’ argument that Southwest pay the full price for the farm is unreasonable. At the same time it is unreasonable for Southwest to attempt to acquire a cheap right-of-way by calling it a secondary easement.

In summary, we agree with the Loyds that the case must be reversed, but not for the same reasons. We have ruled in effect that Southwest cannot acquire the easement that it sought.

We also disagree with the trial court’s characterization of the easement sought by Southwest, and the court’s order in striking all the testimony of the expert witness. While the case is remanded, Southwest is not precluded from amending its pleadings and seeking other relief not inconsistent with this opinion.

The judgment of the trial court is reversed and the case remanded to the trial court for proceedings not inconsistent with this opinion.

Fogleman, J., concurs. Fogleman, J., would grant the rehearing.