Little v. Georgia Power Company , 205 Ga. 51 ( 1949 )

1. Where an electrical engineer of 31 years' experience gives his opinion, as to dangers to an electric power line by reason of contiguous buildings, which is based upon proven facts, the testimony is admissible.

2. Where ownership of property is a material issue, testimony pertaining thereto that amounts merely to a legal conclusion as to the meaning of facts, is inadmissible, and upon proper objection should be excluded.

3. In an interlocutory hearing for a temporary injunction, where evidence upon a material and controlling question is erroneously admitted, a new trial will be granted.

No. 16479. FEBRUARY 16, 1949. REHEARING DENIED MARCH 16, 1949. Georgia Power Company brought a petition for injunction against Alvin Little and his wife for obstructing and interfering with its right of way for an electric transmission line which was supported by wooden poles, and alleged that their acts constituted a continuing trespass. The Littles were building a house and garage on lot 28, block 9 of Morning side Subdivision. Prior to the creation of the subdivision, Georgia Power Company, or its predecessors in title, had acquired an easement across the tract of land, and the power line went across a portion of the lot upon which the Littles were building.

As to this line the power company does not insist upon an easement by a grant or condemnation proceedings, specifying any particular width, but by prescription by reason of having operated the transmission line over the lot for a period exceeding seven years before the filing of the petition. The Littles admit that the power company has the right to maintain the line across the lot.

At an interlocutory hearing on the question of whether the Littles were interfering with or violating the rights of the power company's easement, the following facts appeared: The line is comprised of three wires, approximately 25 or 30 feet above ground but a little less as it sags between the wooden poles, and carries 19,000 volts of electricity. The structural part of the dwelling house is about completed, as is also the garage, except the roof has not been put on the garage. One of the corners of the dwelling is located a few feet from one of the poles, and also only a few feet from a point vertically beneath the transmission line. A portion of the garage is directly under the transmission line. The roof of the dwelling is about half way from the ground to the wires.

R. A. Conaway, an electrical engineer of 31 years' experience, testified by affidavit: in his opinion "there is serious danger and hazard involved in the erection of a dwelling house or garage nearer than 25 . . feet to the point vertically underneath said transmission line. The danger is due to the hazard and risk of said dwelling or garage burning and thus severing said transmission line, . . and . . the hazard to those persons fighting the fire, of coming in contact, directly or indirectly, with said transmission line, . . [and] the additional hazard to third parties, such as workmen repairing the roof of said dwelling or garage or children playing thereon, of coming in contact . . with said transmission line." The same witness further testified: "Another hazard . . is that, in the event that one of the poles supporting said transmission line was severed or for any reason fell, it would carry said electric line a horizontal distance of approximately 25 . . feet . . thus creating a distinct hazard to any objects or persons within that area.

The erection of any construction, . . nearer than 25 feet to the vertical space of said line, will interfere with the operation and maintenance."

W. D. Maness, a civil engineer assigned to the land department of the power company, after stating the correctness of a plat showing the location of the dwelling and garage in relation to the power line, and that the poles are approximately 30 feet above the ground, testified by affidavit: "The easement on which said . . line is located is 50 feet in width, and the line runs approximately in the center thereof."

The Littles introduced in evidence their answer, which denied that they were obstructing or interfering with the power company easement.

The trial judge granted a temporary injunction enjoining the Littles from constructing or from using either partially constructed building, and from maintaining the partially constructed buildings. On this judgment and on the admission of certain testimony, which will be referred to in the opinion, error is assigned. 1. The objection to the first paragraph of the testimony of R. A. Conaway, quoted in the foregoing statement of facts, upon the grounds that the opinion was based on speculation, and was a conclusion, is without merit. The witness was an electrical engineer of 31 years' experience, his opinions were based on proven facts, and were admissible under the Code, § 38-1710.

2. To that portion of the testimony of W. D. Maness, to wit, "The easement on which said . . line is located is 50 feet in width," objections were interposed on the ground that it was a conclusion and no facts were given on which to base such conclusion, which objection was overruled. Inasmuch as there was no evidence of the easement having been acquired by grant or condemnation proceedings designating any particular width, and the evidence showed only a prescriptive right to maintain the line across the premises in question, the evidence objected to should have been excluded, as it amounted to no more than a legal opinion or conclusion. Where ownership of property is a material issue, testimony that amounts merely to a conclusion as to the meaning of facts or documents is inadmissible. Bleckley v.White, 98 Ga. 594 (2) (25 S.E. 592); Collinsville GraniteCo. v. Phillips, 123 Ga. 830 (20) (51 S.E. 666); Tillman v. Bomar, 134 Ga. 660 (3) (68 S.E. 504); Sears, Roebuck Co. v. Kitchens, 31 Ga. App. 574 (2) (121 S.E. 583);Downs v. Brandon, 49 Ga. App. 198 (1) (174 S.E. 647).

3. The width of the right-of-way was a material and controlling question in the instant case, and evidence defining its width having been erroneously admitted, as set forth in the foregoing second division, such evidence may have had considerable weight, or might have been the controlling factor, in affecting the decision of the trial judge, in which case a new trial should be had upon proper evidence. Town of Pelham v.Pelham Telephone Co., 131 Ga. 325 (3) (62 S.E. 186).

Judgment reversed. All the Justices concur, except Duckworth,C. J., and Head, J., who dissent.