Present: Carrico, C.J., Compton, Stephenson, Whiting, Lacy, and 

Keenan, JJ., and Poff, Senior Justice 

E. TYREE CHAPPELL 

v. Record No. 941106 OPINION BY 

SENIOR JUSTICE RICHARD H. POFF 

VIRGINIA ELECTRIC AND JUNE 9, 1995 

POWER COMPANY 

FROM THE CIRCUIT COURT OF HANOVER COUNTY 

Richard H.C. Taylor, Judge 

 The principal question presented in this landowner's appeal 

from a judgment confirming the commissioners' report in a 

proceeding to condemn an easement is whether the testimony 

adduced and proffered by the landowner was sufficient to prove 

that the award of compensation for damage to the residue was 

unjust. 

 In October 1992, Virginia Electric and Power Company (Vepco) 

filed a petition to condemn an easement for the construction of 

Vepco's 230 kV Elmont-Chickahominy transmission line. The route 

crosses one corner of a farm owned by E. Tyree Chappell. 

Approximately half of the farm lies in a flood plain. The corner 

crossed by the easement is cleared land and, with access to State 

Route 637, is suitable for residential development. Chappell's 

farm contains 91.72 acres; the easement will cover 0.85 of an 

acre. 

 In preparation for trial, Chappell served a subpoena on 

Donald E. Koonce, Vepco's Director of Transmission Operations. 

In response to interrogatories, Chappell advised that he also 

planned to call another witness, Gillis G. Pratt, Jr., a real 

estate appraiser, who would opine that "the greatest loss to the 

property is the damages to the remainder . . . [which] is 
significantly devalued, because of its proximity to the right of 

way of a high voltage transmission line, including the public 

awareness and fear of living in the vicinity of electromagnetic 

fields caused by such transmission lines." 

 Vepco filed a motion to quash the Koonce subpoena and a 

motion in limine to exclude "evidence of or reference to 

electromagnetic fields ('EMF'), any alleged link between EMF and 

adverse human health effects, any alleged public perception of 

any such link, and the effects, if any, of any such perception on 

property values in Hanover County." The trial court granted both 

motions. 

 Following a view of the property by the court and the 

commissioners, Vepco introduced the testimony of a single 

witness, Michael C. McCall, a real estate appraiser. McCall 

fixed the value of the easement at $11,900; the damage to an "80-

foot strip running along the easement" at $22,155; no damage to 

the residue outside this "buffer strip"; and total just 

compensation at $34,100. 

 Chappell, testifying as his only witness, valued the 

easement at $12,750; damage to the residue at $81,750; and total 

just compensation at $94,500. For the record, Chappell proffered 

the testimony of Gillis Pratt, a real estate appraiser. Pratt 

evaluated the easement at $14,445; damage to the residue at 

$65,555; and total just compensation at $80,000. 

 The trial court entered judgment confirming the 

commissioners' report which assessed the value of the easement at 

$12,325; damage to the residue at $25,655; and total just 

compensation at $37,980. 
 In his challenge on appeal to the quantum of the award of 

damage to the residue, Chappell contends that the trial court 

erred in excluding his evidence of public fear emanating from the 

presence of high voltage power lines and the effect of that fear 

on the market value of his property. He relies upon language 

contained in Appalachian Pr. Co. v. Johnson, 137 Va. 12, 30-31, 

119 S.E. 253, 258 (1923), where we said that "the commissioners 

could have properly taken into consideration the effect of the 

fear of the [transmission] line breaking down and injuring 

persons and property . . . if the liability [for] such injury in 

fact depreciated the market value of the property." Chappell 

insists that the trial court's order excluding his evidence from 

consideration by the commissioners "was in contravention of 

precedent and resulted in unfair prejudice . . . as reflected by 

the Commissioners' award." 

 We do not agree that Johnson is controlling precedent. The 

landowner was awarded nothing for damage to the residue; damage 

to the residue was not an issue before this Court; and the 

language Chappell invokes is obiter dicta. 

 Nevertheless, we need not decide whether a landowner in a 

proceeding to condemn an easement for an electric transmission 

line may be entitled to compensation for diminution in the market 

value of the remaining land attributable to the fears of 

prospective purchasers. The rule is well settled that, "[i]n 

every eminent domain case involving a partial taking, the measure 

of damages to the residue of the property not taken is the 

difference in the fair market value immediately before and 

immediately after the taking." East Tennessee Natural Gas Co. v. 
Riner, 239 Va. 94, 100, 387 S.E.2d 476, 479 (1990); accord Town 

of Rocky Mount v. Hudson, 244 Va. 271, 273, 421 S.E.2d 407, 408 

(1992). And, as Chappell acknowledges on brief, "[s]peculative 

matters should not be considered by commissioners in determining 

just compensation." Applying these principles, we examine the 

probative value of the damage evidence Chappell vouched for the 

record. 

 Koonce, Vepco's employee, was never asked to evaluate damage 

to the residue, and Pratt produced no evidence of comparable 

sales consummated at prices allegedly diminished by public fear 

of electric transmission lines. As Chappell agreed in oral 

argument, "[i]t is difficult to prove market value loss when 

there are no actual sales of comparable property." 

 In support of his estimate of damage to the residue, Pratt 

referred to an article he had read in the "Journal of Real Estate 

Research". Based upon "a survey of several experienced 

appraisers all over the country," the author of the article 

concluded that the effect of high voltage power lines on 

residential property values "ranged from zero to 50 percent 

difference . . . with the median being typically something 

greater than 10 percent". While Pratt testified that he applied 

a 10 percent depreciation formula to one parcel containing 13.77 

acres "because of the visual" problem, it is unclear from the 

record what percentage factor or factors related to the fears of 

prospective customers he applied to other portions of the rest of 

Chappell's farm. 

 We think that the proffered testimony failed to quantify any 

damage to the fair market value of the residue attributable to 
the alleged public fear of high voltage transmission lines. 

Consequently, the testimony Chappell proffered was inadmissible. 

East Tennessee Natural Gas Co. v. Riner, 239 Va. at 100, 387 

S.E.2d at 479-80. 

 Finally, Chappell complains that the trial court erred in 

denying his "absolute right of cross-examination" and that "[d]ue 

to the Court's evidentiary rulings, the Commissioners' award was 

arrived at under erroneous principles and should have been 

overturned by the Trial Court". 

 On cross-examination, Chappell's counsel asked McCall if, 

during the course of his testimony in earlier Vepco condemnation 

cases, "the question [had] come up about fear of power lines". 

The trial court, taking the view that Chappell's question was 

within the intendment of the exclusion order entered in limine, 

sustained Vepco's objection to the question, and Chappell's 

counsel resumed interrogation on a different subject. 

 "We will not consider testimony which the trial court has 

excluded without a proper showing of what that testimony might 

have been." O'Dell v. Commonwealth, 234 Va. 672, 697, 364 S.E.2d 

491, 505 cert. denied, 488 U.S. 871 (1988). "[W]hen testimony is 

rejected before it is delivered, an appellate court has no basis 

for adjudication unless the record reflects a proper proffer." 

Whittaker v. Commonwealth, 217 Va. 966, 968, 234 S.E.2d 79, 81 

(1977); accord Spencer v. Commonwealth, 238 Va. 563, 570, 385 

S.E.2d 850, 854 (1989), cert. denied 493 U.S. 1093 (1990); 

MacKall v. Commonwealth, 236 Va. 240, 256-57, 372 S.E.2d 759, 769 

(1988), cert. denied 492 U.S. 925 (1989); Barrett v. 

Commonwealth, 231 Va. 102, 108, 341 S.E.2d 190, 194 (1986); Wyche
v. Commonwealth, 218 Va. 839, 842, 241 S.E.2d 772, 774 (1978); 

Owens v. Commonwealth, 147 Va. 624, 630-31, 136 S.E. 765, 767 

(1927); Jackson's Case, 98 Va. 845, 846-47, 36 S.E. 487, 488 

(1900). Although the trial court invited Chappell to pursue his 

right of "vouching the record", we find nothing in that record 

that constitutes a proper proffer. 

 The commissioners' award was lower than the highest damage 

estimates and higher than the lowest. 

 It is a well settled rule of law in this State that it 

requires strong evidence to warrant the appellate court 

in setting aside an award of commissioners when the 

only exception is to the quantum of damages. 

Chairman Highway v. Fletcher, 153 Va. 43, 46, 149 S.E. 456, 457 

(1929); accord Highway Commissioner v. Carter, 216 Va. 639, 641, 

222 S.E.2d 776, 777 (1976). 

 We hold that the record fails to show that the difference 

between the market value of the residue immediately before and 

immediately after the condemnation was greater than the award the 

commissioners made, and we will affirm the judgment of the trial 

court confirming the award. 

Affirmed.