Present: Carrico, C.J., Compton, Stephenson, Whiting, Lacy, and
Keenan, JJ., and Poff, Senior Justice
E. TYREE CHAPPELL
v. Record No. 941106 OPINION BY
SENIOR JUSTICE RICHARD H. POFF
VIRGINIA ELECTRIC AND JUNE 9, 1995
POWER COMPANY
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H.C. Taylor, Judge
The principal question presented in this landowner's appeal
from a judgment confirming the commissioners' report in a
proceeding to condemn an easement is whether the testimony
adduced and proffered by the landowner was sufficient to prove
that the award of compensation for damage to the residue was
unjust.
In October 1992, Virginia Electric and Power Company (Vepco)
filed a petition to condemn an easement for the construction of
Vepco's 230 kV Elmont-Chickahominy transmission line. The route
crosses one corner of a farm owned by E. Tyree Chappell.
Approximately half of the farm lies in a flood plain. The corner
crossed by the easement is cleared land and, with access to State
Route 637, is suitable for residential development. Chappell's
farm contains 91.72 acres; the easement will cover 0.85 of an
acre.
In preparation for trial, Chappell served a subpoena on
Donald E. Koonce, Vepco's Director of Transmission Operations.
In response to interrogatories, Chappell advised that he also
planned to call another witness, Gillis G. Pratt, Jr., a real
estate appraiser, who would opine that "the greatest loss to the
property is the damages to the remainder . . . [which] is
significantly devalued, because of its proximity to the right of
way of a high voltage transmission line, including the public
awareness and fear of living in the vicinity of electromagnetic
fields caused by such transmission lines."
Vepco filed a motion to quash the Koonce subpoena and a
motion in limine to exclude "evidence of or reference to
electromagnetic fields ('EMF'), any alleged link between EMF and
adverse human health effects, any alleged public perception of
any such link, and the effects, if any, of any such perception on
property values in Hanover County." The trial court granted both
motions.
Following a view of the property by the court and the
commissioners, Vepco introduced the testimony of a single
witness, Michael C. McCall, a real estate appraiser. McCall
fixed the value of the easement at $11,900; the damage to an "80-
foot strip running along the easement" at $22,155; no damage to
the residue outside this "buffer strip"; and total just
compensation at $34,100.
Chappell, testifying as his only witness, valued the
easement at $12,750; damage to the residue at $81,750; and total
just compensation at $94,500. For the record, Chappell proffered
the testimony of Gillis Pratt, a real estate appraiser. Pratt
evaluated the easement at $14,445; damage to the residue at
$65,555; and total just compensation at $80,000.
The trial court entered judgment confirming the
commissioners' report which assessed the value of the easement at
$12,325; damage to the residue at $25,655; and total just
compensation at $37,980.
In his challenge on appeal to the quantum of the award of
damage to the residue, Chappell contends that the trial court
erred in excluding his evidence of public fear emanating from the
presence of high voltage power lines and the effect of that fear
on the market value of his property. He relies upon language
contained in Appalachian Pr. Co. v. Johnson, 137 Va. 12, 30-31,
119 S.E. 253, 258 (1923), where we said that "the commissioners
could have properly taken into consideration the effect of the
fear of the [transmission] line breaking down and injuring
persons and property . . . if the liability [for] such injury in
fact depreciated the market value of the property." Chappell
insists that the trial court's order excluding his evidence from
consideration by the commissioners "was in contravention of
precedent and resulted in unfair prejudice . . . as reflected by
the Commissioners' award."
We do not agree that Johnson is controlling precedent. The
landowner was awarded nothing for damage to the residue; damage
to the residue was not an issue before this Court; and the
language Chappell invokes is obiter dicta.
Nevertheless, we need not decide whether a landowner in a
proceeding to condemn an easement for an electric transmission
line may be entitled to compensation for diminution in the market
value of the remaining land attributable to the fears of
prospective purchasers. The rule is well settled that, "[i]n
every eminent domain case involving a partial taking, the measure
of damages to the residue of the property not taken is the
difference in the fair market value immediately before and
immediately after the taking." East Tennessee Natural Gas Co. v.
Riner, 239 Va. 94, 100, 387 S.E.2d 476, 479 (1990); accord Town
of Rocky Mount v. Hudson, 244 Va. 271, 273, 421 S.E.2d 407, 408
(1992). And, as Chappell acknowledges on brief, "[s]peculative
matters should not be considered by commissioners in determining
just compensation." Applying these principles, we examine the
probative value of the damage evidence Chappell vouched for the
record.
Koonce, Vepco's employee, was never asked to evaluate damage
to the residue, and Pratt produced no evidence of comparable
sales consummated at prices allegedly diminished by public fear
of electric transmission lines. As Chappell agreed in oral
argument, "[i]t is difficult to prove market value loss when
there are no actual sales of comparable property."
In support of his estimate of damage to the residue, Pratt
referred to an article he had read in the "Journal of Real Estate
Research". Based upon "a survey of several experienced
appraisers all over the country," the author of the article
concluded that the effect of high voltage power lines on
residential property values "ranged from zero to 50 percent
difference . . . with the median being typically something
greater than 10 percent". While Pratt testified that he applied
a 10 percent depreciation formula to one parcel containing 13.77
acres "because of the visual" problem, it is unclear from the
record what percentage factor or factors related to the fears of
prospective customers he applied to other portions of the rest of
Chappell's farm.
We think that the proffered testimony failed to quantify any
damage to the fair market value of the residue attributable to
the alleged public fear of high voltage transmission lines.
Consequently, the testimony Chappell proffered was inadmissible.
East Tennessee Natural Gas Co. v. Riner, 239 Va. at 100, 387
S.E.2d at 479-80.
Finally, Chappell complains that the trial court erred in
denying his "absolute right of cross-examination" and that "[d]ue
to the Court's evidentiary rulings, the Commissioners' award was
arrived at under erroneous principles and should have been
overturned by the Trial Court".
On cross-examination, Chappell's counsel asked McCall if,
during the course of his testimony in earlier Vepco condemnation
cases, "the question [had] come up about fear of power lines".
The trial court, taking the view that Chappell's question was
within the intendment of the exclusion order entered in limine,
sustained Vepco's objection to the question, and Chappell's
counsel resumed interrogation on a different subject.
"We will not consider testimony which the trial court has
excluded without a proper showing of what that testimony might
have been." O'Dell v. Commonwealth, 234 Va. 672, 697, 364 S.E.2d
491, 505 cert. denied, 488 U.S. 871 (1988). "[W]hen testimony is
rejected before it is delivered, an appellate court has no basis
for adjudication unless the record reflects a proper proffer."
Whittaker v. Commonwealth, 217 Va. 966, 968, 234 S.E.2d 79, 81
(1977); accord Spencer v. Commonwealth, 238 Va. 563, 570, 385
S.E.2d 850, 854 (1989), cert. denied 493 U.S. 1093 (1990);
MacKall v. Commonwealth, 236 Va. 240, 256-57, 372 S.E.2d 759, 769
(1988), cert. denied 492 U.S. 925 (1989); Barrett v.
Commonwealth, 231 Va. 102, 108, 341 S.E.2d 190, 194 (1986); Wyche
v. Commonwealth, 218 Va. 839, 842, 241 S.E.2d 772, 774 (1978);
Owens v. Commonwealth, 147 Va. 624, 630-31, 136 S.E. 765, 767
(1927); Jackson's Case, 98 Va. 845, 846-47, 36 S.E. 487, 488
(1900). Although the trial court invited Chappell to pursue his
right of "vouching the record", we find nothing in that record
that constitutes a proper proffer.
The commissioners' award was lower than the highest damage
estimates and higher than the lowest.
It is a well settled rule of law in this State that it
requires strong evidence to warrant the appellate court
in setting aside an award of commissioners when the
only exception is to the quantum of damages.
Chairman Highway v. Fletcher, 153 Va. 43, 46, 149 S.E. 456, 457
(1929); accord Highway Commissioner v. Carter, 216 Va. 639, 641,
222 S.E.2d 776, 777 (1976).
We hold that the record fails to show that the difference
between the market value of the residue immediately before and
immediately after the condemnation was greater than the award the
commissioners made, and we will affirm the judgment of the trial
court confirming the award.
Affirmed.