9-518

9-518. Compensation for taking public utility;
procedure for determining

A. Whenever the fair valuation of the plant and property of a public utility has
not for any reason been determined by any other method provided by law, or where no other
method is provided, the city or town may, subject to the provisions of this section, by
the exercise of the right of eminent domain institute an action pursuant to article 2,
chapter 8, of title 12, and the court or jury shall, in the manner hereinafter provided,
ascertain and assess the compensation to be paid for the taking of the plant and property
of the public utility.

B. The court or jury shall ascertain the compensation to be paid for the taking of
the plant and property of the public utility, which shall include the fair and equitable
value of such plant and property, including its value as a going concern, and the actual
and consequential damages, if any, sustained by the public utility by reason of the
severance from the other plant and property of the public utility of the plant and
property to be taken. Compensation and damages shall be fixed as of the date of the
commencement of the trial at which such compensation and damages are finally determined.

C. Any party of the action may appeal to the supreme court in the same manner as is
provided for appeals in other civil actions by filing a notice of appeal with the
superior court within thirty days from the entry of the judgment or order appealed from
and posting a bond for costs. Any such appeal to the supreme court shall be preferred
and shall be heard and determined in preference to other civil matters, except election
actions, habeas corpus, quo warranto, mandamus, injunction and other extraordinary writs
to state officers and inferior courts of which the supreme court has original
jurisdiction.

D. Within six months after the date when the judgment has become final following an
appeal, or within six months after the expiration of the time allowed by this section for
appeal if no appeal is taken, the city or town shall pay into court the amount fixed by
the judgment for the use of the public utility and such other persons as the judgment may
provide. The public utility and such other persons as the judgment may provide who are
entitled to the money paid into court may demand and receive the money at any time after
its deposit upon filing a satisfaction of the judgment or a receipt for the money. If
the city or town fails or refuses to pay the amount of the judgment into court within
such period of six months, the court shall vacate the judgment and enter judgment
dismissing the complaint and taxing costs in favor of the defendants in the action,
including in such event a reasonable allowance for engineering costs and expert witness
fees.

E. Within thirty days after the date when the judgment becomes final following an
appeal, or within thirty days after the expiration of the time allowed for appeal if no
appeal is taken, the public utility shall file with the court a report, verified under
oath, of the amounts actually expended by it for additions, betterments, improvements and
extensions which it has been required to make between the date of the commencement of
trial and the date of such report, together with an estimated forecast of the amounts it
will be required to make for the public convenience and necessity during the ensuing six
months. Thereafter, and until the expiration of the time provided for the payment by the
city or town of the amount of the judgment into court, the public utility shall every
thirty days file with the court a verified supplemental report of the amounts it has
actually expended for such purposes since the date of the initial report. Such reports
may be considered by the court in determining the amount of the deposit to be made or
bond to be posted by the city or town as provided by subsection F, and may be considered
at the trial provided by subsection I but shall not be conclusive of the amount to be
ascertained as the compensation to be paid by the city or town for such additions,
betterments, improvements and extensions.

F. Upon payment of the amount of the judgment into court within the time provided,
the city or town shall make application to the court for an order permitting it to take
possession of, and use and operate the plant and property of the public utility,
including the additions, betterments, improvements and extensions for the public
convenience and necessity which the public utility has been or will be required to make
between the date of the commencement of the trial and the date of taking possession
thereof by the city or town. Upon filing the application a time shall be fixed by the
court for a hearing to determine the probable fair and equitable value of such additions,
betterments, improvements and extensions, and written notice of such hearing shall be
given to the public utility and other defendants, if any, at least ten days prior to the
date fixed, by service of a copy of such notice in such manner as the court directs. On
the day fixed for the hearing, the court shall determine the probable value of the
additions, betterments, improvements and extensions which the public utility has been
required to make since the date of the commencement of the trial, and shall direct that
upon deposit of money, or the posting of a bond with good and sufficient sureties, in the
amount so determined, the city or town shall be let into the possession and full use of
the plant and property of the public utility described in the judgment, together with the
additions, betterments, improvements and extensions made since the date of commencement
of the trial. Upon deposit of the money or the posting of a bond in the required amount,
the city or town may go into the possession and full use of the plant and property of the
public utility, described in the judgment, together with the additions, betterments,
improvements and extensions referred to in the order of the court. No appeal may be
taken from an order of the court determining the amount of the deposit to be made or the
bond to be posted by the city or town.

G. The parties may stipulate as to the amount of the deposit or of the bond in lieu
of the deposit; but such stipulation or evidence of such deposit or of the bond shall not
be introduced in evidence or used to the prejudice of any party to the action.

H. At the hearing to fix the probable value of the additions, betterments,
improvements and extensions, the court shall direct the parties to file such supplemental
pleadings as the court may deem necessary to set forth the claims of the public utility
with respect to such value and the response of the city or town thereto, shall fix the
time within which such pleadings should be filed, and shall set the matter for trial
before the court or a jury for the purpose of ascertaining the compensation to be paid
for the additions, betterments, improvements and extensions required to be made by the
public utility between the date of commencement of the trial and the date the city or
town is let into possession of the public utility's plant and property.

I. The court or jury shall ascertain the compensation to be paid for additions,
betterments, improvements and extensions, which shall be the fair and equitable value
thereof as of the date the city or town took possession of the public utility plant and
property, and the amount so determined shall draw interest at the legal rate from such
date. In fixing such value such additions, betterments, improvements and extensions
shall not be considered or treated as being severed from the plant and property included
in the judgment theretofore entered. Such additions, betterments, improvements or
extensions shall be deemed to have been made for the public convenience and necessity, if
such additions, betterments, improvements or extensions are found by the court to have
been reasonably necessary and prudently made as incidental capital expense in the
ordinary and usual conduct of a public utility business, or if the additions,
betterments, improvements or extensions were ordered to be made by the corporation
commission. Upon such value being determined a supplemental judgment shall be entered
therefor, from which any party to the action may appeal to the supreme court in the same
manner and within the same time as is provided for appeals from the judgment in the
action, except that any asserted grounds for appeal shall be limited to those arising in
the proceeding to fix the compensation to be paid for the betterments, additions,
improvements and extensions.

J. Within ninety days after the date said supplemental judgment has become final
following an appeal, or within ninety days after the expiration of the time allowed for
appeal if no appeal is taken, the city or town shall pay into court all amounts fixed by
the supplemental judgment for the use of the public utility and such other persons as the
supplemental judgment shall provide, less any amount theretofore deposited with the court
if such amount be less than the supplemental judgment. If the city or town shall have
posted a bond, all amounts provided by the supplemental judgment shall be paid into court
and the bond exonerated. The public utility and such other persons as the supplemental
judgment may provide may demand and receive from the money deposited the amount of the
supplemental judgment with interest and costs, if any.

K. If the complaint of the city or town is dismissed as provided by subsection D,
no action in court to acquire or take the same plant and property of the public utility,
or any portion thereof, shall be instituted by the city or town within three years after
such dismissal.

L. All proceedings and trials provided by this section shall be preferred and shall
be heard and determined in preference to other civil matters, except election actions.

M. The provisions of this section for ascertaining and assessing compensation for
the taking of the plant and property of a public utility and the obtaining of possession
and use of such property by a city or town are intended to be remedial.