LYMAN P. BARNES V. BIG RIVERS ELECTRIC CORPORATION
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RENDERED: July 31, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
96-CA-3332-MR
LYMAN P. BARNES
and JOYCE M. BARNES
APPELLANTS
APPEAL FROM OHIO CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 96-CI-0161
V.
BIG RIVERS ELECTRIC
CORPORATION
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GARDNER, HUDDLESTON and KNOX, JUDGES.
GARDNER, JUDGE.
Lyman P. Barnes and Joyce M. Barnes (the
Barneses) appeal from findings of fact, conclusions of law, and
interlocutory judgment of the Ohio Circuit Court in an eminent
domain proceeding filed by Big Rivers Electric Corporation (Big
Rivers).
We affirm.
Big Rivers is a non-profit rural electric cooperative
corporation.
On June 25, 1996, it filed a petition in Ohio Circuit
Court seeking to obtain a permanent easement across a parcel of
real property owned by the Barneses for the purpose of constructing
and maintaining a power line.
The filing of the petition was
preceded by a period of negotiation, during which Big Rivers
initially offered $2,300 for the easement and later raised the
offer to $3,000.
The negotiations were unsuccessful.
After the action was commenced, the court appointed three
commissioners on July 2, 1996, as required by KRS 416.580, and the
commissioners subsequently filed their report.
Big Rivers then
sought an interlocutory judgment, and the Barneses moved for
dismissal.
After hearing the parties’ arguments in two hearings,
the court granted the motion for interlocutory judgment and denied
the motion to dismiss.
On November 6, 1996, the court entered the
interlocutory judgment in accordance with its findings of fact and
conclusions of law.
Big Rivers was authorized to take possession
of the Barneses property for the purpose of constructing the power
line, and the Barneses were awarded $15,000 in compensation.
This
appeal followed.
The Barneses first argue that the lower court committed
reversible error in failing to rule that Big Rivers has the burden
of establishing that the easement is necessary and for the public
use.
They also maintain that Big Rivers failed to meet this
burden.
We have closely examined the facts, the law, and the
arguments of counsel, and find no error on this issue.
In its order of October 1, 1996, the lower court stated
as follows:
-2-
This
Court
is
in
agreement
with
the
Petitioner’s statement that the public use in
this action is the furnishing of electrical
energy to rural areas of this state by a
public utility created for that purpose. In
Ratliff -v- Fiscal Court [of Caldwell County,
Kentucky], Ky. 617 SW2d 36 (1981), the
Kentucky Supreme Court held that a utility’s
mere expansion of its transmission system
constitutes a public purpose for the easements
required.
This is a situation that is
encompassed within the facts of this case as
the evidence was presented in the two hearings
conducted by this Court regarding this matter.
Therefore,
this
Court
finds
that
the
Petitioner’s condemnation of the Respondents’
property is for a public use and necessity.
We find no basis upon which we may conclude that the lower court
erred in finding the condemnation to be for a public use and
necessity.
The
trial
court
is
presumptively
correct
in
its
rulings, City of Louisville v. Allen, Ky. App., 385 S.W.2d 179
(1964), and we will not disturb a court’s findings absent a showing
that they are clearly erroneous.
(CR) 52.01.
Kentucky Rule of Civil Procedure
The record supports the lower court’s conclusion on
this issue, and the Barneses’ argument distinguishing between
“public use” and “public purpose” is not compelling.
we find no error on this issue.
Accordingly,
We are also not persuaded by the
Barneses’ argument that the lower court erred in failing to hold
that Big Rivers had the burden of proof on this issue.
The court
found that the burden was met, and we believe nothing more was
required.
The Barneses also argue that the lower court erred in
concluding that Big Rivers had negotiated with the Barneses in good
faith prior to filing its petition for condemnation. Specifically,
-3-
they maintain that Big Rivers failed to make a reasonable effort to
acquire the easement at a fair price, and that Big Rivers’ offer
amounted to little more than a “take it or leave it” proposition.
Condemners are required to make a good faith attempt to
purchase the subject property at a reasonable price.
Coke v.
Commonwealth, Ky., 502 S.W.2d 57 (1974). The record indicates that
the parties corresponded by mail regarding Big Rivers’ proposed
purchase of the easement, and that negotiations ensued wherein Big
Rivers first offered $2,300, then raised the offer to $3,000. Also
contained in the record is a letter from Big Rivers to the Barneses
wherein Big Rivers stated that it remained open to any reasonable
offer.
While it is true that the commissioners later recommended
compensation to the Barneses in an amount which exceeded Big
Rivers’ last offer by $12,000, we cannot conclude that this fact,
taken alone, evidences bad faith on the part of Big Rivers.
When
the record is examined in its entirety, we cannot find that the
lower court erred in concluding that Big Rivers had negotiated in
good faith.
The Barneses have not overcome the presumption that
the trial court ruled correctly on this issue.
City of Louisville
v. Allen, supra.
The Barneses also argue that the lower court erred in
failing to require Big Rivers to strictly comply with the statutory
prerequisites to filing the petition for condemnation.
maintain that Big Rivers failed to:
They
1) describe the parcel at
issue with sufficient specificity, 2) establish why public rightof-ways
were
not
utilized
before
-4-
seeking
to
condemn
public
property, and 3) post a bond.
We have examined the statutes which
the Barneses cite in support of these arguments, namely Kentucky
Revised Statute (KRS) 416.570, KRS 416.140(1), and KRS 416.130(1),
and find no error.
Our review of the record indicates that the
condemned
was
property
described
in
the
petition
and
its
attachments with specificity sufficient to satisfy the “particular
description of the property” requirement as set forth in KRS
416.570(2).
Contrary to the Barneses assertion, KRS 416.140(1)
simply does not require Big Rivers to establish why public rightof-ways were not utilized.
Rather, it serves to allow public
utilities to use public right-of-ways where needed.
Finally, the
Barneses have not shown that the lower court erred in concluding
that Big Rivers was not required to post a bond prior to entering
the Barneses’ property.
Even if such a bond was required, any
error on this issue is harmless.
KRS 416.130(1) requires a bond to
be posted before land is entered for the purpose of making “surveys
or examinations. . . .”
or
examining
the
It appears that the period for surveying
parcel
has
long
since
passed,
and
that
construction of the power line has commenced.
The Barneses’ final argument is that the lower court
erred in denying their motion brought pursuant to CR 65.08 to
enjoin Big Rivers from beginning work on the power line during the
pendency of this appeal.
The motion, which was filed some six
months after entry of the interlocutory judgment, was denied by the
lower court in part because CR 65.08 was inapplicable.
agree with the court’s conclusion on this issue.
-5-
We must
CR 65.08(1)
states in relevant part that, “[a]fter an appeal is taken from a
final judgment granting or denying an injunction any party may move
the circuit court to grant, suspend or modify injunctive relief
during the pendency of the appeal.”
(emphasis added).
The
November 8, 1996, interlocutory judgment was neither final nor did
it grant or deny injunctive relief.
Even if CR 65.08 were
applicable, it further provides that a party adversely affected by
a ruling of the circuit court under paragraph (1) of this rule may
file a motion with the Court of Appeals seeking relief.
motion has been filed.
appealing
from
a
No such
In any event, the Barneses were not
“final
judgment
granting
or
denying
an
injunction,” and accordingly we can find no error in the lower
court’s conclusion that CR 65.08 was not applicable and that the
Barneses were not entitled to injunctive relief under this rule.
For
the
foregoing
reasons,
the
findings
of
fact,
conclusions of law, and interlocutory judgment of the Ohio Circuit
Court are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
E. F. Martin, Jr.
Hartford, Kentucky
Frank Stainback
Owensboro, Kentucky
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