United States of America Ex Rel. Tennessee Valley Authority v. An Easement and Right of Way Over Land in Logan County, Kentucky, Enlow Rogers, Et Ux.

O’SULLIVAN, Circuit Judge.

Defendants-Appellants, Enlow Rogers, and wife, appeal from a judgment fixing the compensation to be paid for the taking, by the Tennessee Valley Authority, of an easement and right of way across their farm in Logan County, Kentucky. This judgment was entered by three United States District Judges, convened under the provisions of the Tennessee Valley Authority Act of 1933, Title 16 U.S.C.A. § 831x. Appellants make two contentions; first, that the TVA had no authority to take their property, and second, that the award of compensation was inadequate. Appellee, TVA, asserts that the award was excessive.

We are first met with the question of whether the claimed invalidity of the. taking by TVA is properly before us. To answer this, it is necessary to review the procedural steps involved.

1) Procedure.

On August 31, 1961, Tennessee Valley Authority filed a Complaint in the District Court asking, first, that an order be entered putting it into possession of the property being condemned, (40 U.S. C.A. § 258a); second, that Commissioners be appointed to assess the compensation to be paid, (16 U.S.C.A. § 831x); and, third, that judgment be entered confirming the vesting of title to the condemned property in the United States. Contemporaneous with filing its Complaint, TVA filed its Declaration of Taking and deposited therewith the sum of $1,800.00 as its estimate of the compensation to be paid. On September 8, 1961, an order was entered by the District Court, putting the TVA into immediate possession of the property to be taken. This was followed on September 9, 1961, by an order appointing Commissioners to assess the compensation to be paid. On September 16, 1961, defendants filed a motion for the vacation of the order of taking and dismissal of the complaint. Among other grounds for dismissal, defendants’ motion avers, in substance, that the allegations of the Complaint and the Declaration of Taking fail to disclose that the taking was for a use for which the TVA is authorized to exercise its power of eminent domain. The only description of TVA’s intended use of the property is the following allegation of the Complaint:

“The use for which the property is taken is the construction, operation, and maintenance of a portion of an electric power transmission line, designated by the Tennessee Valley Authority as the Paradise-North Nashville No. 1 (East) Transmission Line.”

and a like statement in the Declaration of Taking. The Complaint avers that the authority for the taking “is the Tennessee Valley Authority Act of 1933, 48 Stat. 58, as amended, 16 U.S.C. §§ 831-831dd (1958; Supp. I, 1959).” The pleadings contain no allegation that what is to happen on the Paradise-North Nashville No. 1 (East) Transmission Line is in any way related to the purposes for which Congress created the Tennessee Valley Authority.¹

On November 13, 1961, the District Judge heard arguments on defendants’ motion to dismiss and reserved his ruling thereon. On March 8, 1962, the Commissioners, having met and heard testimony relevant to the subject, awarded Rogers $6,300.00 as compensation for the taking involved. TVA filed exceptions to the award. On April 13, 1962, the District Judge denied defendants’ motion to dismiss. On April 17, 1962, conforming to the procedure outlined by 16 U.S.C.A. § 831x, the District Judge designated three District Judges to hear the exceptions to the Commissioners’ award. Upon the convening of such three-judge court, both parties declined to offer further evidence and the matter was submitted to such court upon a transcript of the testimony taken before the statutory Commissioners, and upon such judges’ own study and view of defendants’ premises. After such de novo hearing (16 U.S.C.A. § 831x) and on December 22, 1962, the said three-judge District Court rendered its Award and Judgment, assessing the compensation to be paid to defendants at a total of $4,300.00, a reduction of $2,000.00 from the amount awarded by the statutory Commissioners. The judgment thus entered does not purport to pass upon the right of TVA to take defendants’ property.

On January 17, 1963, defendants filed their Notice of Appeal “from the final judgment of [the] United States District Court * * * composed of three Federal District Judges, entered in this action on 22nd December, 1962.” Such appeal is provided for by Section 25 of the Tennessee Valley Authority Act (16 U.S.C.A. § 831x) and relates only to the award of compensation. It does not bring before us the District Judge’s denial of defendants’ motion to dismiss, made on the grounds that TVA was without authority to take defendants’ property. No final appealable order or judgment has as yet been entered on that point. Catlin v. United States, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911.

Notwithstanding the foregoing, appellants’ brief, as a question involved, presents the following:

“Does TVA have authority to construct a steam plant and run transmission lines to areas outside of the Tennessee River Valley or its tributaries ?”

Appellee’s brief avers that “no final judgment has been entered and appellants have not appealed from the interlocutory order of April 13, 1962.” (Denial of the motion to dismiss.) Both briefs then proceed to argue the question of TVA’s authority to take appellants’ property. Even though acceptance of this joint invitation to now decide such question might save further litigation, we decline to do so on the record brought to us.

The total information supplied by the allegations in the complaint and some testimony given by a TVA employee at the hearing on compensation, is that TVA is constructing, or has already constructed, a so-called steam plant at a place called Paradise, there to generate electricity to be supplied to Nashville, Tennessee, and, in the future, to other places; that this plant is within 85 miles of the Kentucky Dam, a TVA facility located on the Kentucky River; that the “transmission distance” from the latter is 1,000 miles; that the Paradise plant is within an area already served by TVA. We are not advised as to whether the Paradise plant is connected with, auxiliary to, or aids the distribution of electricity generated at any TVA hydro-electric plant. It is not clear to us whether TVA is here contending that it has authority to construct a steam plant at any place within 1,000 miles of one of its admittedly authorized hydro-electric plants, and therefrom distribute electricity.

TVA argues that Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688; United States ex rel. TVA v. Welch, 327 U.S. 546, 66 S.Ct. 715, 90 L.Ed. 843; Rainbow Realty Co. v. Tennessee Valley Authority, 124 F.Supp. 436 (M.D.Tenn.1954); United States ex rel. TVA v. Puryear, 105 F.Supp. 534 (W.D.Ky.1952) have announced law that clearly supports its assertion of authority for the taking in this case. Further evidence may, indeed, establish that “Paradise-North Nashville No. 1 (East) Transmission Line” serves an authorized TVA purpose. We are not satisfied, however, that we should undertake decision of the question on the meager record before us. For further consideration and final judgment in this regard, the cause is remanded to the District Court.

2) Amount of compensation.

TVA deposited $1,800.00 as its estimate of adequate compensation for the taking of an easement and right of way across appellants’ 536 acre farm. The Commissioners awarded $6,300.00 and the three-judge District Court awarded $4,300.00. On this appeal, appellant Rogers asks us to fix his compensation at $26,800.00, and TVA asks us to fix it at $1,800.00. The prescribed procedure, peculiar to condemnation by TVA, directs that the three-judge District Court “shall pass de novo upon the proceedings had before the commissioners, may view the property, and may take additional evidence.” (16 U.S.C.A. § 831x). The same section provides that upon appeal to us, we shall “dispose of the same upon the record, without regard to the awards or findings theretofore made by the commissioners or the district judges, and such court of appeals shall thereupon fix the value of the said property sought to be condemned.” (Emphasis supplied.)

For discharge of our responsibility we have before us 161 pages of appendices, a transcript of 270 pages, some photographs of appellants’ farm and some maps delineating the course of the right of way. TVA has constructed four towers thereon to carry its transmission lines. There are two sections to the right of way; one, identified as PNE 135, extending 2743 feet, and the other, PNE 137, extending 1565 feet across sections of appellants’ farm. The right of way is 150 feet wide. The distance from appellant Rogers’ home to the center of the nearest tower is 660 feet and from Rogers’ home to the center line of the right of way at the nearest point is 537 feet. The base of each tower is 24 feet square, and the towers range from 60 to 80 feet in height. The total acreage included in the right of way is 14.9 acres — 9.5 acres in Tract 135 and 5.4 acres in Tract 137. Some trees in a windbreak were removed in installing the towers and transmission lines. Appellants will be totally dispossessed only of that part of the land occupied by the tower bases, subject to TVA’s right to

“enter and to erect, maintain, repair, rebuild, operate and patrol one line of poles or transmission line structures * * * for electric power circuits and telephone circuits * * * together with the right to clear said right of way and keep the same clear of brush, trees, buildings, and fire hazards, and to remove danger trees, if any, located beyond the limits of said right of way, the plaintiff [TVA] to remain liable for any direct physical damage to the land, crops, fruit trees, fences and roads, resulting directly from the operations of the construction and maintenance forces of plaintiff and about the erection and maintenance thereof. * * * ”

In addition to deprivation of free use of the acreage within the right of way, appellants Rogers assert that the value of their entire farm has been lessened through loss of aesthetic value, impairment of facility in farming operations, inability to carry on crop spraying, loss of market value because of a public fear of high tension wires, and the danger inherent in power lines and towers. Appellants claim that removal of trees from the windbreak lessened its usefulness. In such claims, appellants were supported by their witnesses, all of whom joined in an estimate that there was an overall loss of value of not less than $50.00 per acre in the market value of appellants’ 536 acres, thus totalling $26,800.00.

TVA witnesses countered these claims, asserting that its installations did not detract aesthetically from the farm; they discounted the claimed danger from the towers and transmission lines; one admitted fear of these installations, while others dismissed public fear as affecting the value of the farm; they asserted that the impairment of the windbreak was minimal. The opposing witnesses disagreed as to the market value of appellants’ farm. The TVA witnesses came to a final conclusion that $1,800.00 was fair compensation for the taking of the easement.

Neither the Commissioners nor the three-judge District Court disclosed by opinion or otherwise the formulae, if any, that they employed to arrive at their awards of $6,300.00 and $4,300.00, respectively. We do not have the benefit of their views as to the weight of the evidence or the credibility of the witnesses. It is obvious, however, that both factfinders, Commissioners and District Judges, gave greater weight to TVA’s witnesses and were not impressed with the appellants’ and their witnesses’ estimates of the loss. The District Judges viewed the premises with its buildings and the towers and transmission lines already constructed thereon. In addition to their own knowledgeability as Kentucky judges, they read the testimony of qualified witnesses who testified before the Commissioners. While the statute involved tells us to “fix the value” of the condemned property “without regard to the awards or findings * * ' * made by the * * * district judges” we may consult their expressed judgment to aid us in coming to our own conclusion, giving consideration “to the special advantages of the tribunals below in evaluating the evidence.” United States ex rel. TVA v. Powelson, 319 U.S. 266, 273, 63 S.Ct. 1047, 87 L.Ed. 1390, 1396; United States ex rel. TVA v. Brandon, 153 F.2d 781 (CA 6, 1946). Thus aided, and upon our own reading and evaluation of the testimony, and examination of the pictorial exhibits, we conclude that $4,300.00, the amount av/arded by the District Judges, is fair compensation to appellants for the taking of the easement.

Judge McAllister’s able dissent suggests that the factfinders may have allowed nothing for the impairment of the aesthetic value of the property involved. With great respect for its excellent exposition of his view, we believe that the factfinders did consider aesthetic loss. True, the TVA witnesses gave their opinions that the power lines and towers did not constitute aesthetic detriments and on this appeal TVA persists in such position and asks us to reduce the award to $1,800.00. This was the highest figure given by its witnesses for the damage, without allowance for aesthetic loss, but neither the Commissioners nor the Distinct Judges accepted this position. Neither do we. The award of $4,300.00 approved by us exceeds the $1,800.00 by only $2,500.00. We are satisfied, however, from our review of the record before us, including the view of the premises by the three Kentucky District Judges and their evaluation of the aesthetic considerations, that the total award was adequate.

We do not believe that the District Judges or this Court must accept the estimate made by the witnesses produced by Rogers because the TVA witnesses gave no estimate of aesthetic loss. The $50.00 per acre minimum figure which Rogers’ witnesses gave for the loss included all damage to the farm without specification of what portion thereof represented aesthetic loss. Neither the District Judges nor this Court are put to the choice of allowing nothing for aesthetic loss or accepting the Rogers testimony as the only yardstick for evaluation. We are at liberty to form our own judgment as to the total loss of aesthetic value from all the material before us, as were the District Judges. We are unable to accept as realistic the estimates of Rogers’ witnesses as to the dollar value of his aesthetic loss.

We join our brother in decrying the ugliness being intruded into America’s pastoral beauty by today’s rushing pursuit of economic gain. We do not, however, equate these tall towers extending into the distance with the commercial disfigurements that border our highways.

Upon our own judgment, we fix the amount to be awarded at $4,300.00. It is so ordered.

1 . “Por the purpose of maintaining and operating the properties now owned by the United States in the vicinity of Muscle Shoals, Alabama, in the interest of the national defense and for agricultural and industrial development, and to improve navigation in the Tennessee River and to control the destructive flood waters in the Tennessee River and Mississippi River Basins, there is created a body corporate by the name of the ‘Tennessee Valley Authority’. * * * ” (Tennessee Valley Authority Act of 1933, § 1, 48 Stat. 58; Title 16 U.S.O.A. § 831.)