Electric Transmission Lines

The Supreme Court has held that any permanent public taking — no matter how small — requires the payment of just compensation. At Denlow & Henry, our lawyers are in the business of helping property owners get just compensation for their property loss. We’ve been practicing eminent domain law for more than 40 years. If a power company is threatening to place high-voltage power lines or transmission towers on your property, we can help.

Eminent Domain Actions Involving Electric Lines and Other Electric Utilities

Electric companies often run unsightly power lines over and through residences, farms and businesses, and place transmission towers on private property. These electric transmission lines can destroy aesthetic views, require tree removal and diminish property values. Electric transmission towers can also impair property use, making it more difficult to farm, develop and sell land.

At Denlow & Henry, our attorneys understand the negative effects property lines and transmission towers have on our clients’ properties. Over the years, we have successfully helped many Missouri property owners enforce their rights under eminent domain laws and obtain just compensation from electric companies.

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Many residential and commercial property owners do not realize they have a right to compensation for the electric lines and towers placed on their properties. If even a portion of your property is used by electric companies for their utilities, you deserve just compensation.

Just compensation includes not only the value of the property lost to electric utilities, but also damage done to the remaining property.

At Denlow & Henry, we have gone up against some of the state’s largest electric companies and co-ops, such as the Ameren, Evergy (Kansas City Power & Light), Invenergy and many electrical co-operatives. We will fight to get you the compensation you deserve.

Transmission Lines and Eminent Domain: What Property Owners Need to Know

As governments and utilities work to improve the electrical grid to support the transportation of wind and solar energy, this type of case is increasingly more common. Although transmission lines may serve a public purpose, they can potentially devastate the properties over which they cross. Examples of such projects in the works or proposed is the Grain Belt Express and its associated project “Tiger Connector” both by Evergy - a Chicago, Illinois privately-held company that the Missouri PSC designated as a public utility. Also in the works are projects by the Ameren Transmission Company of Illinois (ATXI) including the Maywood-Mississippi line in Marion County and the Ameren Fairport-Denny-Iowa/Missouri Border Transmission Line that will cut through properties located in the Missouri Counties of Worth, Gentry, and DeKalb.

Because these projects are becoming so common, we thought it was worth providing property owners with a helpful guide.

What to expect when a utility company decides to take your property:

Here is a general breakdown of what to expect once a utility company decides to route a transmission line through your property:

The utility company approaches you and asks you to grant it an easement (typically for a small sum):

At an early stage, utility companies compare routes for transmission lines and decide where to place them based on several factors, such as minimizing costs and environmental impact. They will typically propose multipe routes and hold public hearings for “input” though we question how much they truly take into consideration from the public

Once the utility company selects a route, it sends representatives—who sometimes work for other entities but acquire the property on behalf of the utility company—to negotiate with property owners to acquire easements for transmission lines. (Easements are legal agreements that give the easement holder—in this case, the utility company—the right to use land for a specific purpose.) Utility easements typically grant the utility company the right to clear-cut all vegetation, install a transmission line, and restrict specific types of property usage that may interfere with the transmission line. Typically, the only type of uses remaining for an area that is covered by a transmission line easement is agricultural or recreational. Typically, utlility easements prohibit landowners from changing the grade or property under the easement or constructing any form of structure.

We often hear from landowners that the land agents hired by utilities make misleading statements and promises that are unfulfilled. They also use high-pressure tactics such as leading property owners to believe that they have no choice and that if they do not voluntarily sign that the easement will be taken by eminent domain leaving them with nothing. Both are untrue. Yes, transmission line companies usually have the power of eminent domain, but the eminent domain process allows for landowners to obtain just compensation.

Utility land agents will often tell property owners that they do not need a lawyer. That is the best indication that, indeed, landowners do need legal representation. Results vary by property and project, but our clients almost always receive far more compensation than they are offered at this stage. It is also easier for utility companies to proceed with a particular route or project when several property owners along the proposed route voluntarily acquiesce. We highly recommend consulting with an eminent domain specialist before giving away any of your property rights.

Preliminary steps toward eminent domain court proceedings - Notice and Offer:

If property owners do not voluntarily acquiesce to the utility company, the utility company can resort to acquire the property via eminent domain.

There are several statutory prerequisites to filing an eminent domain lawsuit. One is that the utility must provide a landowner with a notice of acquisition (commonly called a 60-day letter). This notice is design to give landowners up to 60 days to seek advice before eminent domain court proceedings can be started. Another requirement is for a written offer delivered to the owner that includes an appraisal or a fincial explanation for the amount of the offer. The offer must be held open for the proeperty owner to accept for a period of not less than 30 days before a court action can begin. These protections to property owners established by the Missouri legislature are circumvented when utilities send out their land agents in the early stages seeking to get landowner signatures before they are fully informed.

In most utility taking cases, the utility company needs only part of the owner’s property for the transmission line. We call that a “partial taking.” In partial taking cases, the property owner’s compensation is usually calculated as the difference between the property’s value before and after the taking.

In our experience, the utility company’s appraisers frequently underestimate the damage to the property’s value. Most of the time, they do so by estimating the damage using a percentage of the value of the easement area. For example, they will find that the taking diminishes the value of the land within the easement area by 50%.

The problem with this approach is that partial takings often affect the value of the entire parcel, not just the easement area. These damages outside of the easement area are called “consequntial” or “severance” damages.

As an illustration, an invasive easement that allows a utility company to install a high-voltage transmission line across a field impacts the dimensions of the remaining land and the owners’ ability to farm it. The damage goes far beyond just the value of the strip taken for the transmission line. For farmers that raise livestock, the interference might be worse, with new breaks in fenceing and additional gates where none currently exist. Those who practice growing organic crops or raise bio-secure livetock, the impacts can be overwhelming.

In the residential context, an easement that enables the utility company to clear-cut all trees and landscaping and install unsightly and noisy high-voltage transmission line affects the aesthetics and value of the entire property, not just the value of the land in the easement area.

The utility company files an eminent domain lawsuit:

Finally, if the utility company cannot resolve its case with you, it will need to file an eminent domain lawsuit.

Eminent domain litigation is set apart from all other forms of Missouri court cases. There is an entirely unique set of rules that courts and attorneys must follow in these kind of lawsuits. The utility company files the lawsuit, which makes them the “plaintiff” and the landowner the “defendant.” But unlike most cases, the plaintiff pays the defendant and the defendant is not accused of any wrongdoing. The only thing that a defendant in an eminent domain case has done is to have the misfortune of owning property in the path of a project.

Another aspect of eminent domain litigation that can be confusing is that it is refered to as “condemnation proceedings.” This is often confused with instances when proeperty is “condemned” due to unsafe or unsanitary conditions. The terms are the same, but they have different meanings.

Missouri’s eminent domain cases typically proceed in two stages:

Stage One: In the first stage, the utility company files the lawsuit against the landowner and anyone else who might have an interest in the property, such as tenants or banks. Usually all the un-signed landowners in a county are combined into the same eminent domain suit, but it is not a “class action.” At this point, the landowner can challenge the taking on various grounds discussed later. However, such challenges are an uphill battle and depend on the right set of facts to succeed. If the property owner succeeds and the court dismisses the eminent domain lawsuit, the utility company is generally responsible for reimbursing the property owner for its reasonable attorney fees.

If the property owner does not challenge or unsuccessfully challenges the taking, the judge will appoint three citizens that live in the same county as the property. They are called “commissioners” (not the same as elected county officials). The commissioners cannot be closely associated with the utility or the property owners or have any interest in the outcome. They will meet with all the parties, hear evidence of values and will visit the property. They will then report back to the court the amount of damages that the utility must pay for the easement. The utility can then pay that amount to the court clerk to “buy” the easement and begin construction., but that does not fully resolve the case.

Stage Two: Nearly all eminent domain proceedings end at Stage One. However, if the issue of the amount of damages is great enough and the utility and property owners have a wide difference of valuation figures, either or both parties can seek a jury trial. Even while a jury trial is pending, the project can go forward if the amount awarded by the commissioners is paid by the utilty.

Please note that having an attorney experienced and well-versed in the unique eminent domain rules and issues throughout this process is extremely important.

Challenging the taking:

One of the most common questions property owners ask is whether and how they can challenge a utility company’s taking of their property.

Public Use:

The Constitutions of Missouri and the United States allow government-authorized entities to condemn property for “public use.” Utility infrastructure projects usually constitute public uses for which eminent domain is available.

Necessity:

Another more applicable ground for challenging the taking is “necessity.” In other words, you can challenge whether the seized property (here, an easement) is necessary for public use.

We often have property owners contact us to challenge a proposed route for various reasons, most often that a “better route” not on their property should have been chosen. Often, landowners suggest that a transmission line should be located on an existing transmission easement (known as “co-locating). Other times, property owners suggest that transmission line should be buried. These are all reasonable suggestions in a “real-world” perspective, but do not carry weight in the legal arena.

With regard to alternative locations for a transmission line easement, Missouri Statute 523.265 permits an owner to suggest a different location on the same parcel that the utility wants to cross. The utility is under no obligation to do anything other than “consider” the suggestion and respond in writing. Otherwise, the court system does not review the location of transmission line corridors, leaving that decision to the utilities, themselves. In the case of many transmission line easements for public utilities, the location is established through approval of the Public Service Commission, where property owners have an opportunity to participate and argue about different aspects of a propose project, including the location. For transmission lines constructed by electrical cooperatives, there is no government oversight as the location.

Likewise, while technology exists that permits placing transmission lines underground, that method of construction is significantly more than traditional above-ground methods. Again, the decision of how a transmission line is constructed is handled before the Public Service Commission, except for co-operatives, which make the decision on their own. The court system provides no oversight in the context of eminent domain proceedings.

Statutory Authority and Jurisdiction:

Utility companies need to have the statutory authority and jurisdiction to condemn property. In most cases, the utility company has statutory authority. Jurisdiction comes into play at times when the utility does not adhere to the necessary process, such as providing the 60-day letter or proper written offer to the property owner before filing suit.

Bottom line:

The worst nightmare for many property owners is to have their property taken away. If you are put in that awful position, know that you have rights. Hire an attorney and explore challenging the taking as unnecessary for a public use.

If you anticipate your property being affected by a utility project, feel free to contact us for a no charge consultation. We are typically paid a percentage of the amount we help you obtain over the original written offer. You will not pay us for discussing your case. Our initial consultation typically includes a visit to your property. Again, there is no fee should we decide a site visit is necessary before taking on your case.

For a Free Initial Consultation, Call 314-725-5151 or toll free 888-566-5151.

Our firm provides free consultations to property owners. To discuss your case and learn more about your legal options, contact us today.