Daily Development for Monday,
December 4, 2000
By: Patrick A. Randolph,
Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu
Blackwell Sanders Peper
Martin Kansas City, Missouri prandolph@cctr.umkc.edu
EMINENT DOMAIN;
ELECTROMAGNETIC FIELDS: Property owner may recover compensation in condemnation
action for loss in value of property as a result of high voltage electric
transmission lines erected on property based on fear of dangers posed by lines
without proving the reasonableness of the fear. Owner of property burdened by
easement still enjoy noninterfering uses adjacent to the easement, including
trees.
Western Farmers Elec. Coop
v. Enis, 993 P.2d 787 (Okla. Ct. App. 1999) (cert. denied 11/20/99).
Western Farmers Electric
Cooperative brought condemnation proceedings to acquire easements for a high
voltage line. At trial, the trial court excluded evidence concerning public
fear of electric lines due to electromagnetic fields because the public fear of
electromagnetic fields were speculative and not a fear of an established
danger. The owners of the condemned property appealed.
The Court of Civil Appeals
of Oklahoma reversed the trial court, noting under Oklahoma law, which it
characterized as the "minorityperceived fear approach." This approach
establishes that all considerations bearing on value, including unreasonable
fear in the community concerning electromagnetic emissions, that might be
brought forward and reasonably be given substantial weight should be taken into
account. The court noted that the question is not whether the landowners have
any fearful perceptions, but whether it is possible that potential purchasers
of the land may have such perceptions to the degree that market value would be
adversely affected.
Comment 1: The court cited
authority in Kansas, New Mexico and California which it claims is in accord
with its opinion. In the case of California, it neglected to note that a
subsequent hearing on the matter concluded that the issue of condemnation
damages for electromagnetism was precluded by the preemptive regulations of the
California Public Utility Commission. San Diego Gas & Electric Co. v.
Covalt, 55 Cal. Rptr. 2d 724 (Cal. 1996) the DIRT DD for 1/23/97. Also see the
DIRT DD for 7/25/97, discussing New York and Ninth Circuit cases embracing the
"majority rule" and a Florida case in the "minority camp."
The court cited an ALR
annotation that collects and analyzes the cases: 23 A.L.R. 4th 631 (1983) Based
upon the ALR annotation, the court identified three approaches to this issue:
The "perceived fear" rule, which it espoused, acknowledging that it
is the minority, the "intermediate, or reasonable fear" approach,
which it characterized as the view of the trial court, and the "majority
rule," which does not accept fear as an element of damages in eminent
domain cases.
Comment 2: In a recent
Daily Development, 7/27/00, DIRT reported on a Massachusetts case in which a
property owner was unable to recover for electromagnetic interference with its
computer screens caused by nearby power lines. Power lines, the court ruled,
were just "part of life."
Readers are urged to respond, comment, and argue with the daily
development or the editor's comments about it.
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