PACIFIC GAS AND ELECTRIC COMPANY v. HUFFORD (1957)

This is an action brought by Pacific Gas and Electric Company, a corporation, hereinafter called Pacific, against Jesse and Lillie Hufford, husband and wife, hereinafter called Hufford, to condemn an easement and right of way for the construction, operation and maintenance of an electric transmission line, together with an easement and right of way for a service road, across lands owned by Hufford in Shasta County. Pacific also sought the right to erect gates in any fences which might be erected across the easements and to prohibit the construction of buildings and prevent the drilling of wells thereon. The transmission line across the Hufford property will consist of one line of six steel towers grounded with customary wires and cross arms. The towers will be so constructed that they afford a ground clearance of 18 feet below the bracing. The transmission line easement is 5,171 feet in length and 80 feet in width, covering approximately 9.5 acres. The road easement is 20 feet wide and covers approximately 3.6 acres. The total area of the Hufford property is 1,179 acres. The land is rolling, some with oak and pine trees, but mostly foothill land, except for a flat portion along a creek. The transmission line easement is in the rolling hill portion of the property. The land is used for grazing cattle six months of the year from November through May. The jury found the market value of the easements to be $1,000 and awarded severance damages in the sum of $12,500. To present the contentions of error, a review of the testimony is necessary.

Luther F. Prawl testified that about a year and a half prior to the trial his land, about two miles away from the Hufford property, had been drilled by the Humble Oil Company to a depth of 3,100 feet; that during the drilling gas was expelled at high pressure; that the hole was cemented closed; that no commercial use had ever been made of it. He said that only one hole was drilled and that it was the only one he had ever heard of in Shasta County. This testimony was objected to as incompetent, irrelevant and immaterial and without foundation. Hufford contended that the evidence would tend to prove the value of the Hufford land for mineral content, meaning gas and oil.

Hufford called three witnesses to establish damages. John Bryant, a licensed real estate broker, qualified as an expert on land values in the general locality of the Hufford property. From general knowledge and from inspection of the subject property, he testified that it was best adapted for agricultural use and for the production of gas and oil. He put the over-all value of the property at $115,000 and said that the taking of the easements lowered the over-all value by $15,500, $500 for the easements taken and $15,000 severance damages. He listed the elements he took into consideration in arriving at severance damages as follows:

1. Hindrance to Stock.

(a) Others have use of gates.

(b) Steers or cows won't fatten as fast if disturbed.

2. Hindrance to farming.

(a) Erosion.

(b) No contour plowing.

(c) Hard to harrow and broadcast seed.

3. Hindrance to privacy.

(a) Television and radio.

(b) Free access to property.

(c) Can't build house or have well.

4. Hindrance to irrigation.

(a) Very dangerous to operate sprinkler system near.

5. Damage while actual building.

(a) Workmen disturb cattle.

(b) Vehicles, men, etc., disturb and ruin feed.

(c) Might not clean up.

6. Mineral.

(a) Couldn't have gas well near.

He said he could not and did not give any value to any particular element, nor could he give a revised figure if some elements were excluded. The witness amplified the foregoing as follows: The hindrance to stock consisted of the following factors: Steers purchased in the fall to be fed and sold in the spring come out of Oregon and Nevada ranges and will not gain ‘for quite awhile under a power line’, because the noise disturbs them. In handling the steers trouble would be encountered in driving them under the lines, not a great amount, but one thing: While the lines were being built, range cattle would be disturbed. The result of disturbance is failure to gain as rapidly as the stock otherwise would. Hindrance to farming was made up of the following factors: The land could be farmed, much of it to grain. For that purpose, contour plowing was desirable to stop erosion, and the roads would interfere with such plowing. Also, the towers would interfere with the passage of farm equipment, such as harrows. The presence of the towers made the land, said the witness, unadaptable completely to contour plowing and very hard to farm ‘if you want to contour’; also, the roads would cause erosion. Hindrance to privacy was made up of the following factors: Pacific would have free access to the property, and that is not good for range cattle. Access to the land through gates would hurt the resale value of the property. A prospective buyer might want to build a house under one of the lines and could not do so. The witness related an experience he had had in selling an irrigated tract with a $20,000 house built under a power line. Prospective buyers anticipating interference with television would not freely buy, and so the sale value was hurt. Hindrance to irrigation consisted in the danger of operating a sprinkler system near the lines. The witness said the property could not be irrigated with a check system, but that it was ‘not out of the realm of possibility’ some day with a sprinkler system, and he would hate to have his son changing sprinklers with a 30 or 40 foot pipe under a power line. In using sprinkler systems, the operator carries pieces of pipe around over his shoulder and might hit a power line with the pipe. As to mineral, the witness testified that anything in Northern California has a mineral potential, and that mineral possibilities increased market value appreciably. By mineral uses he meant gas and oil. He had made no geological tests of the property, knew that it had never been drilled for gas or oil and knew of no oil or gas in Shasta County in commercial quantities. He did not know whether or not the property could profitably be put to a mineral use. Concerning the irrigation, he said he knew of no water rights belonging to the ranch but was thinking in terms of a well. The ranch could not be irrigated unless wells were drilled, and he did not know what quantity of water might be obtained by drilling, and that one might hit a good well or might not. The entire ranch was not suitable for irrigated farming, and he did not know how much of it was, for it depended entirely on how far one had to go for water and the pumping cost. The witness said that in regard to the use of the gates by others, he referred to the use by Pacific's employees and to the danger that they might leave gates open, allowing cattle to stray. Pacific moved to strike his testimony concerning this element of damage as being noncompensable by way of severance damage, and the court directed the witness to eliminate that element and to modify his evaluation accordingly, but said he could still consider the effect of the company's employees entering by the gates to go up and down the road to service the power line. The witness then said that the matter of leaving the gates open had not, in fact, entered into his estimates of damage, and he, therefore, refused to revise the estimate. Concerning the item of damage by reason of danger to be encountered in operating a sprinkler system near the lines, Bryant said he did not know whether or not there were sprinkling systems available that could effectively sprinkle the area nor the cost of installation if there were. He said that not much could now be sprinkled, but that it was not out of the realm of possibility that a good part could be sprinkled in the future. He did not know whether it would be economically feasible to sprinkle the property or to put it under irrigation at all, and he could not state what added value the property had because of its irrigation possibilities. These questions were asked, and answers given: ‘Q. Now, can you tell me what added value this property would have in your purchaser's mind at this time because of its irrigated farm possibilities? A. I couldn't break it down. Q. Can you tell me what value, if any, this probability would have in a purchaser's mind at this time bacause of what you consider its gas and oil possibilities? A. I can't tell, no.’ Returning to hindrance to steer fattening, the witness said that the interference would be felt over the whole ranch. He said the ranch had a double power line across it already; that Hufford had been pasturing cattle on the ranch a long time; and that the witness did not know what effect it had had on the cattle in past years. (Neither of the Huffords was called to supply that information.) In considering the restriction against building a house or drilling a well on the right of way, the witness said that this related entirely to the 13.1 acres in the right of way area, except that the rest of the property might be depreciated in the eyes of a prospective purchaser if he felt the right of way area contained the best building site or if he wanted to drill a well there. He said that a part of the damage within the figure of total severance damages he gave was due to inability to drill for gas or oil off the right of way as well as on. He said that, although he put $500 as the damage accruing from the taking of the easements, his severance damage figure included additional damage to the area in the right of way, but he could not tell how much.

George Nathan Hunt was the second valuation witness called by Hufford. He was a farmer and stock raiser in Shasta County, operated ranch properties for W. H. Hunt Estate Company, some of which adjoined the Hufford property. He gave the best use of the Hufford property as stock raising, the next best as farming, by which he meant dry farming, since he felt the property had no great potential for irrigation. He said the third best use was mineral, by which he meant gas and oil. By way of qualifying as an expert on values, Hunt said that he knew of and had been informed of all sales of real property that had taken place in that locality for a number of years. He testified the over-all value of the Hufford property was $112,000. Over objection that he was not qualified to do so, he stated his opinion that the depreciation of the market value of the Hufford property by being impressed with the easements being taken amounted to $16,500; of this he attributed $1,500 to the value of the rights of way and $15,000 to severance damages. The last valuation witness called by Hufford was Blanche Abbott, a life-long resident of Shasta County, a rancher by occupation, who testified she was familiar with the Hufford property, having all her life lived within two miles of it and having recently made an inspection of it. She said she had made an investigation of sales of property in that locality for years past. She gave the reasonable market value of the Hufford property before being impressed with the easements as $117,900. Over objection, she testified that the value of the whole property after being impressed with the easements was $99,000. She fixed $1,000 as the value of the easements and $17,900 as severance damages. One valuation witness for Pacific placed the reasonable market value of the Hufford ranch before being impressed with easements at $72,500, fixed the value of the rights taken at $666 and found no severance damages. A second witness gave the figures of $64,000 over-all value, $640 for the rights of way and no severance damages. Pacific introduced evidence that driving cattle under electric lines has no effect on them, and that routine inspections involving entry upon the area under the wires generally happened about twice a year.

Pacific first contends that the jury's award of severance damages included a sum attributable to damage to land within the easement area and was, therefore, to that extent, an award of double damages. In support of this contention, it refers to the language of Section 1248 of the Code of Civil Procedure, which provides that severance damages are ‘the damages which will accrue to the portion not sought to be condemned’, and that severance damages are to be assessed separately from ‘the value of the property sought to be condemned.’ Pacific says the portions sought to be condemned were the easements, and that in fixing the value thereof, the jury necessarily considered the detriment in the way of limitation of use of the land within the rights of way. Therefore, says Pacific, severance damages cannot include further damage to the land within the rights of way since that has already once been considered and allowed.

The court prepared and handed to the jury a form of verdict which read as follows:

‘We, the jury in the above entitled case, find:

‘1. That the market value of the easements taken by plaintiff is $_____.

‘2. That the severance damage to the remainder of defendants' property is $_____.’

Concerning this form of verdict and its use, the court told the jury:

‘You are instructed that if by your verdict you determine that damages will accrue to or be caused to defendants' entire tract of land by reason of said severance, of said easements from the remainder of the property, or by reason of the construction and installation of the power line or roads, then you will insert such amount in the second blank space in the form of verdict just read to you.

‘On the other hand, if you determine that no damages will thus accrue or be caused to the property of defendants, then you will indicate such determination by writing the word ‘none’ in such second blank space.' (Emphasis added.)

We think there was nothing wrong with the form of verdict, and that it complied with the provisions of Section 1248 of the Code of Civil Procedure. The property sought to be condemned consisted of easements to erect and maintain the lines, construct and maintain the service roads and to exercise the incidental and subordinate rights of ingress and egress and the like. The jury were told to find the market value of these easements, and they purportedly did so. They were then told to find the severance damages to the remainder of the defendants' property. The remainder of defendants' property was that portion thereof not sought to be condemned, that is to say, everything except the easements, the value of which had already been found and awarded before severance damages were to be considered. Since the verdicts conformed to the statute, we cannot ascribe error in this respect. But, aside from the form of verdict, double damages may have been awarded and the instruction regarding the verdict forms, quoted above, invited that result. The portion not sought to be condemned was all of the land lying outside the rights of way and also the land within those rights of way subjected to the easements. Title to the easements left title remaining in Hufford. But in determining severance damages to the title remaining, as distinguished from severance damages to land outside the easement boundaries, it is obvious that the elements going to make up the damages would be necessarily quite different. For instance, since the easements prohibited the construction of buildings and the drilling of wells within the easement area and gave the right of partial occupancy for towers and lines and the right of access for maintenance purposes, an exercise of those rights would necessarily lessen and limit Hufford's possession and use of the ground. But for detriment inflicted by Pacific's use of the easements, payment was made in the award for the taking of those easements. It must necessarily be so. To say otherwise would be to compel Pacific to pay twice for easement rights. In considering this contention of error the testimony of Bryant is revealing. In testifying as to the elements which he considered in arriving at his estimate of severance damages, he included such elements as use by Pacific of gates on or giving access to the rights of way; detriment in fattening cows or steers feeding on the rights of way; inability to properly farm the rights of way; erosion thereon from the road building; interference with cultivation of the rights of way by the presence of the towers, making use of farm equipment difficult; inability to build a house or bore a well on the rights of way; prevention of irrigation of the rights of way; damage to the land in the rights of way while the improvements were being built, which element he said included disturbance of cattle by the workmen, detruction of herbage by vehicles and workmen; and leaving the rights of way cluttered after construction. Most, if not all, of the detriment so described by the witness arose from the right of Pacific to the use of the easements for which it was paying. Anything that the condemner may do within the embrace of the easement rights taken must be paid for in the price of that taking. Any detriment to the continued use of the remainder by the condemnee has thus been paid for and cannot become the subject of further award, else double damages will have been awarded. Objections were made by motions to strike Bryant's testimony as to severance damages which, in so far as they related to the remainder interest of Hufford in the rights of way, were denied by the court. From the scope and nature of that testimony which thus went to the jury as we have related it, we conclude that in all probability the jury did award double damages respecting the area within the rights of way. It is, of course, impossible to say how much double damages were thus awarded, and, in any event, it could not be a great sum in view of the evidence that the value of the whole of the land within the right of way before severance amounted to $100 per acre, or $1,310, while the lowest estimate of value of the easements taken was that of Bryant, who fixed the sum at $500.

Pacific next contends that error was committed in the trial court's refusal to strike the testimony of Bryant based on speculative and remote elements of value and speculative and remote elements of damage. The Supreme Court stated in People v. Ocean Shore R., 32 Cal.2d 406, 425–426, 196 P.2d 570, 582, 6 A.L.R.2d 1179:

‘Under section 1249 of the Code of Civil Procedure the measure of compensation for property taken is its market value, which is to be determined by a consideration of all the uses to which it is adapted and for which it is available. * * * In this connection, the highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future is to be considered, not as the measure of value, but to the extent that the prospect of such use affects the market value of the lands; however, elements affecting value which, while possible, are not reasonably probable, should be excluded. * * * Accordingly, where it is not shown that a suggested use would be profitable, or where it appears that the operations cannot be carried on except at a loss, the prospect of use for such a purpose is not a proper element of value.’

It was stated in Arnerich v. Almaden Vineyards Corporation, 52 Cal.App.2d 265, 272, 126 P.2d 121, 124:

‘To recover severance damages under section 1248, subdivision 2, of the Code of Civil Procedure, the loss in market value claimed must directly and approximately flow from the taking. Damage which is speculative, remote, imaginary, contingent, or merely possible, * * *, or recovery in advance for torts or other injuries that may or may not be committed cannot serve as a legal basis for recovery.’

Bryant testified that the Hufford property is best adapted to grazing, farming and the production of gas and oil. He said the possibilities of gas and oil increased the market value appreciably. He admittedly had no knowledge as to the presence of gas or oil within the land in paying quantities, but said he felt that anything in Northern California now has a mineral potential. There was no evidence that there was gas or oil within the land under the rights of way in commercial quantities nor anywhere within the Hufford property, save the testimony of Prawl concerning the presence of gas in a well drilled two miles from the exterior boundaries of the Hufford ranch. If valuations were to be affected by the possibility of the presence of gas or oil in the subject property, some showing at least should have been made concerning the matter by a qualified expert, which Prawl certainly was not. The most serious aspect of this phase is that Bryant considered the possible presence of gas or oil within the land in fixing his severance damages, although no proof was offered that Pacific's use of its rights could in anywise affect the extraction of gas and oil, if there was any. Under the evidence presented here, the possible existence of gas and oil within the land of Hufford in commercial quantities or in quantities such as would affect the judgment of a prospective buyer was altogether too speculative to be submitted to the jury for their consideration in fixing either value of rights taken or severance damages from the taking. The same is true concerning Bryant's testimony as to the adaptability of the land within the right of way to farming under irrigation since there was a complete absence of any showing that water in sufficient supply was available. Again, on this phase Bryant considered as an element of severance the danger of operating a sprinkling system under the lines if water should become available, although there was not the slightest attempt to show that there was any such danger, and there was testimony directly to the contrary introduced by Pacific. It may be noted also that there was not the slightest attempt to show economical feasibility in respect of this irrigation of the land or the operation of a sprinkling system for that purpose. Testifying on severance damages, Bryant stated that noise from the power line would disturb cattle and keep them from making a normal gain of weight. Strangely enough, there was no direct testimony that power lines are noisy to any appreciable extent. With respect to the area contained in the rights of way, Bryant spoke of a prospective buyer perhaps wanting to build a house where the power lines were to go, although there was no evidence that there was any site within the rights of way possessing qualities not equally available in other places. In view of the state of the record, these matters also were open to the objection of being so speculative, remote, imaginary, contingent or merely possible to the extent that they ought not to have been submitted to the jury, and to the extent that Bryant ought not to have been permitted to place his valuations in part in dependence thereon in the presence of timely and precise motions for orders to the contrary. During the presentation of these motions based on the speculative and remote character of the considered elements of damage, the trial court ruled that the question was one to be determined by the jury, and the jury was instructed not to consider elements found to be speculative and remote. However, the question was for the court, not for the jury.

‘The admissibility of a given piece of evidence is for the judge to determine. This general principle is not disputed; * * * It follows that, so far as the admissibility in law depends on some incidental question of fact * * * this also is for the judge to determine, before he admits the evidence to the jury.’ (Wigmore on Evidence, 3rd ed., sec. 2550.)

Opinion evidence based on incompetent and inadmissible matter should be rejected. It cannot be submitted to the jury. San Diego Land & Town Co. v. Neale, 88 Cal. 50, 25 P. 977, 11 L.R.A. 604; People ex rel. Department of Public Works v. Schultz Co., 123 Cal.App.2d 925, 268 P.2d 117; City of Stockton v. Ellingwood, 96 Cal.App. 708, 275 P. 228; Coast Counties Gas & Electric Co. v. Miller & Lux Inc., 118 Cal.App. 140, 143–144, 5 P.2d 34. Where the testimony of an expert witness is substantially based upon items or elements of damage that are speculative and remote, as were those we have related, and where appropriate and precise motions are addressed to the subject of admitting that testimony is error to permit the evidence to go to the jury, and the error is not cured or minimized by instructing the jury that they, having heard the evidence, are to pass upon the question of its admissibility. The seriousness of this error is demonstrated by the following facts. Bryant's testimony was the only testimony of an expert valuation witness, whose training specially fitted him to testify concerning market value and concerning particularly the effect upon market value of various detrimental effects flowing from the construction and maintenance of Pacific's lines. He was the only witness to give any detailed reasons for his estimate of market value and for his estimate of severance damages.

Pacific contends that error was committed in admitting the testimony of Prawl, who testified on direct, as heretofore related, that the Humble Oil Company did some drilling on his property about a year and a half prior to the trial of this action. Upon preliminary objection being made, based upon incompetency, irrelevancy, immateriality and the want of foundation laid to relate the testimony to the issues in the case, Hufford's counsel made an offer of proof proposing to show by the witness that gas had been discovered on the witness' property, counsel contending that this evidence should be given to the valuation witnesses who were to follow Prawl as an element to be considered by them in arriving at their valuations. He stated that no attempt would be made to show that Prawl's property had a proven gas field on it or to qualify Prawl as an expert on such matters. Pacific's objections were overruled, and Prawl testified that a well was completed on his property, that gas came out at high pressure, and that the hole was cemented closed. There was no further testimony concerning the presence within the Hufford property of commercially valuable oil or gas, but every valuation witness presented by Hufford considered the matter of gas and oil being present in the Hufford property. The rule heretofore quoted from People v. Ocean Shore R., supra, exactly fits this situation, that is, that, ‘where it is not shown that a suggested use would be profitable, or where it appears that the operations cannot be carried on except at a loss, the prospect of use for such a purpose is not a proper element of value.’ From all that was shown here, there is no more reason to suppose gas and oil in paying quantities exist under the Hufford property than there is to suppose the same with regard to any and every acre of land in Northern California. Indeed, that such a supposition should be indulged in was the direct statement of Mr. Bryant. The court erred in permitting Prawl's testimony to be received and in permitting it later to be considered by the valuation witnesses. That it was deemed material by Hufford is apparent from the following excerpts from the argument of Hufford's counsel: ‘Here we have got a gas well just recently struck there, down just a little ways. They try to tell you that hasn't got any influence on the market value of that property at all. Now, if you folks can take that, I am sure you will have to put some grease on it before you swallow it because it is going to be hard on your tonsils as it goes down. It would be on anyone's. * * * Don't we all guess on the future and isn't it gambling on the future that makes our country the most prosperous and the most progressive people on earth. I am saying to you, members of the jury, that that situation is to a great degree going to be more than eighteen thousand dollars worth of detriment in the event that those fields, and when those fields are developed; and you know as a matter of common knowledge from the reading of your paper that the development of gas and oil is going forth. And we have here some very positive evidence that we have a potential possibility there that it is real in character.’

Pacific next contends that error was committed in admitting the valuation testimony of the witness Hunt, who, it asserts, based his valuations on speculative considerations, and who, it asserts, did not know the effect of transmission line easements on market value. Hunt was an expert valuation witness whose qualifications consisted in the fact that he was a farmer and stock raiser in the vicinity of the Hufford property, knew the best uses of the Hufford property which he said were stock raising and dry farming. But he also said the land was mineral land useful for the production of gas and oil. No attempt was made to show that he had the slightest knowledge of the effect upon market value of a possibility of oil or gas in the property, or that he had any way of knowing whether or not there were such minerals present in commercial quantities. And as we have seen, there was no competent proof the land held oil or gas. His testimony as to the presence of gas and oil in the property was allowed to stand, and he testified, as heretofore related, as to the market value of the Hufford property having in mind all of the uses and purposes to which it is best adapted. His valuation, therefore, was based in part upon his testimony and the testimony of Prawl concerning the presence of gas or oil within the land and thus was based in part on elements of value which he was not entitled to consider. He also testified as to the market value of the property after being impressed with the easements, over the objection of Pacific that he was not qualified to express an opinion as to the effect upon that market value of the easement taking. In support of the objection, he was cross-examined and testified that he had never investigated the sale of other properties with power lines on them to determine what effect the presence of such lines had on sale prices; and when the court asked him if he had any way of evaluating the existence of a power line in the mind of either the puyer or the seller, he replied: ‘I don't know how I would have.’ Pacific's objections were overruled, and the witness was permitted to give his opinion both as to market value and severance damages. The following is stated in Reed v. Drais, 67 Cal. 491, 492, 8 P. 20, 21:

‘A witness called upon to give an opinion on the subject of value, whether offered as an expert or not, must lay a proper foundation for the introduction of his opinion, by showing he possesses the means to form an intelligent opinion, ‘derived from an adequate knowledge of the nature and kind of property in controversy, and of its value.’

‘* * * [H]e must first be shown to possess the requisite knowledge, and then, although such knowledge is not the result of any peculiar skill in a particular pursuit or branch of business, or department of science, he may yet be heard. Where, however, the knowledge is wanting the opinion should be rejected.’

As said in Coast Counties Gas & Electric Co. v. Miller & Lux Inc., supra, 118 Cal.App. at page 143, 5 P.2d at page 35:

‘* * * Here again we find no abuse of the trial court's discretion in ruling against the opinions of these witnesses on the amount of the severance damage as the evidence failed to show that these witnesses had any sufficient experience based upon sales of land with similar easements to qualify them as experts on the amount of such damage, if any.’

We think this assignment of error must be sustained.

Pacific next contends that error was committed in the court's instruction to the jury that it was not confined to a consideration of the real property in its condition on June 16, 1954, and that it might also consider ‘the reasonably substantial possibility’ of its being put to a more profitable use. The instruction attacked reads as follows: ‘You are not confined to the value of the property in its condition on the 16th day of June, 1954, or to a consideration of its use only at the time of taking; but you may also consider the reasonably substantial possibility of its being capable of being put to a more profitable use had it not been taken, but in so doing, you are not to consider remote, speculative, imaginary, uncertain or conjectural possibilities.’ The right to compensation and damages in an eminent domain proceeding is deemed to have accrued ‘at the date of the issuance of summons' and ‘its actual value at that date’ is the basis for measuring compensation and damages. C.C.P. sec. 1249. Here the indicated date was June 16, 1954, when summons was issued in this case. Although the jury could properly consider uses other than those to which the property was then being put where the evidence was found by them to have shown that there were such other uses, nevertheless, that does not mean that they were not confined in their considerations to the value of the property in its condition on the day summons was issued. They were so confined.

Pacific next contends that the award of severance damages is based on inadmissible evidence and is, therefore, without support. As we have seen, the testimony of Bryant and Hunt, two of the three valuation witnesses for Hufford, both as to market value before impressment of the casements and as to severance damages afterward, was based in part on remote and speculative considerations that should not have been in the case and in part on improper elements of damages. In addition, Hunt, the remaining valuation witness, was shown to be unqualified to testify as to severance damages. We have not heretofore discussed the testimony of Blanche Abbott. Mrs. Abbott testified that she had a power line on her property and had had it there since 1926, and, as she put it, that she knew the effect of a high tension power line on property similar to Hufford's; that she believed she knew how such a power line affected market value, because a Mr. Hathaway had told her he would have given more for a ranch he bought if it had not had a power line on it. She had made no investigation of other sales to determine what, if any, effect the power line had upon the selling price of the property and admitted she was not familiar with the effect on sales of the presence of a power line. She said she had never found in her investigations that the presence of the lines had any effect on the sale price. While she may have been well qualified to testify as to the market value of the land within the rights of way, she was obviously not qualified to testify as to the severance damages arising from the depressing effect of the lines on market value.

The situation we have here, taking the whole record into consideration, is one where the probable effect of the errors pointed was to greatly enhance the severance damages allowed, to cast doubt on the award for the easements taken, and to leave the record in a condition wherein we cannot say that grave injustice has not been done to the appellant. We think that where it is established that the opinion of a valuation witness as to the diminution in the value of property is based partly upon noncompensable items of damage and partly on sheer speculation which he is unable to segregate from lawful elements of damage, a motion to strike his testimony, accurately pointing out the defects, ought to be granted. If that had been done in this case, there would have been no proof for severance damages.

The judgment appealed from is reversed.

VAN DYKE, Presiding Justice.

PEEK and SCHOTTKY, JJ., concur.