Brown v. W.T. Weaver Power Co.
| Decision Date | 15 December 1905 |
| Citation | 52 S.E. 954,140 N.C. 333 |
| Parties | BROWN v. W. T. WEAVER POWER CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Buncombe County; McNeill, Judge.
Action by Mary Brown against the W. T. Weaver Power Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
In an action against a water power company for damages to plaintiff alleged to have been caused by the erection of a dam in a stream on which her property abutted, a witness for plaintiff testified in regard to the value of the land. On cross-examination he stated that he had sold some worn-out upland in the neighborhood of plaintiff's land for $30 and $50 an acre, giving the location of the land; that the sales were made before the installation of defendant's water power. It appeared that witness had given his opinion that plaintiff's land was worth $100 per acre, and that defendant was permitted to show that he had sold lands in that vicinity at a smaller price, and that such sales were made since this installation of defendant's plant. Held that a question on cross-examination as to whether the erection of defendant's plant had not increased the value of land "down there" was not competent as an impeaching question to lessen the weight of his testimony in regard to the value of the lands.
Plaintiff alleged: That she was the owner in fee of a tract of land lying on the French Broad river in Buncombe county, a particular description of which is set forth. That she resided with her family on said land, cultivating a portion thereof. That the defendant company had erected and maintained a dam across said river in the vicinity of and below said land, by which the water was thrown back and ponded said land near to her residence. That by reason of said dam her land is flooded and damaged, and that, so long as the said dam is maintained, such injury and damage will continue; that by reason of said ponding, etc., the value of her land is diminished, and that she will continue to suffer in comfort and convenience, and in the destruction of her water power and of a valuable spring on her premises. That by ponding the water above said dam the defendant has taken possession of a part of said land and wrongfully withholds the same from her. She demands judgment for the from her. She demands judgment for the possession of the portion of land so withheld. She also demands judgment for permanent and annual damage. The defendant by way of answer admits that it has erected and maintains the dam as alleged; denies the plaintiff's ownership of the land and the damages alleged to have been sustained, etc. For a defense it avers that it is a corporation duly chartered pursuant to the laws of the state, the charter being properly pleaded; that it has constructed, and has now in operation, a large and expensive dam across the French Broad river and a large plant with expensive machinery, and is engaged in furnishing electric power to the public lights in Biltmore, and operating the street railway system and lights in the city of Asheville certain cotton mills, and other manufacturing plants; that in order to carry on this business it was and is necessary to erect and maintain across the French Broad river a dam to collect water and to operate such plant and machinery; that the portion of the lands described in the complaint situated between the roadbed of the Southern Railway and the western banks or margin of the said river is necessary, and is required, by the defendant for the purpose of constructing and operating its works; that it has made several efforts to agree with plaintiff upon a price for the said lands, etc. Defendant insists that by its charter the right to condemn said land to its use is conferred, and that plaintiff's remedy is confined to the procedure provided in the charter etc. The following issues were submitted to the jury: The court reduced the amount assessed for permanent damage to $625. Defendant moved the court to set aside the verdict. Motion denied. Judgment was signed, and defendant excepted and appealed.
Davidson, Bourne & Parker and Tucker & Murphey, for appellant.
Mark W. Brown and Zeb F. Curtis, for appellee.
CONNOR J. (after stating the facts).
There was evidence tending to show the location of plaintiff's land, the location of the dam, and the effect upon the land by water ponding thereon, etc., in regard to its productive capacity, the crops raised upon it before and after the erection of the dam. There was also evidence tending to show that the quantity of land upon which water was ponded was about three acres, the rental value of the land, the effect of the water ponded on the land by the dam upon the health of plaintiff's family, etc. The testimony in all of these aspects was conflicting. The estimate of the value of the land and its rental value indicated great divergence of opinion. Only such portions as relate to the exceptions need be noticed. Several of the exceptions to the ruling of his honor upon the admission of testimony were not pressed in this court.
Mr. Ingle, a witness for the plaintiff, testified in regard to the value of real estate, etc. Upon cross-examination he stated that he had sold some worn-out upland in the neighborhood of plaintiff's land for $30 and $50 an acre, giving the location of the land; that the sales were made before the installation of the water power. Defendant thereupon proposed, upon cross-examination, to ask him if the erection of defendant's plant had not increased the value of the land "down there." The question was, upon objection, excluded, and defendant excepted. Defendant's counsel concede that this testimony was not competent for the purpose of offsetting against plaintiff's damage any benefit that may have accrued to her land by the erection of the plant, but states that his purpose was to impeach the witness and lessen the weight of his testimony in regard to value of lands. We are not quite sure how the testimony in regard to the sale of other lands in the vicinity of the plaintiff's, unless it was shown that in respect to the conditions, etc., they were similar, was relevant. The question in issue was the market value of the plaintiff's land. It seems that witness had given his opinion that it was worth $100 per acre. The defendant was permitted, without objection, to show that he had sold lands in that vicinity--worn-out and bottom land--at a smaller price; that such sales were made since the installation of the plant. We do not perceive how it would tend to impeach him to show that the erection of the plant had increased the value of lands "down there." The time of the sale, in respect to the erection of the plant, was shown. This enabled the jury to draw such reasonable inferences from the facts as were proper in estimating the weight to be given to his evidence in regard to the value of plaintiff's land. The exception cannot be sustained.
Plaintiff testified that her land between the river and the railroad is submerged all the year; that there is but a small portion over which a person can walk; that this was caused by the dam; that no part of the three acres was fit for agricultural purposes or pasturage now; that the erection of the dam had ruined her spring, which formerly afforded good water; that she has no other water. She testified that noxious odors came from the river, caused by ponding the water; that sickness fevers, etc., had prevailed. She said that ""before the dam was made this place was her home, and she was happy at it, and could have made her support out of the bottom, and now she has no good water and no support, and it rendered her unhappy, and she did not have her health this summer, and before she had always had her health; that through the wet weather one of the houses on the place had its walls moulded, and that her things got so damp and bad that they moulded in her trunk; that they had filled the yard up trying to prevent it; that it was not that way before the dam was built; and that there was no unpleasant odor before the dam was built." There was evidence tending to show that plaintiff had an orchard on the land from which she gathered and sold fruit, and that since the erection of the dam the trees had died; that she raised vegetables for market on the three acres, etc. The testimony in regard to the value of the orchard, fruit, etc., was conflicting. Mr. Hawkins testified that the three acres between the railroad and the river, if used for gardening purposes, would be worth about $100 per acre, and that included the orchard; that he had run a mill all of his life, and, if plaintiff had a water power in front of her place before the erection of the dam, it would be worth about $500 an acre at least, and it would be worth that much on the French Broad anywhere that you could put up water power nearly. He also testified, in regard to the effect of the water ponded upon the land on the orchard, that the trees were dead, and that it was not now worth anything for gardening or agricultural purposes; that he never measured the fall of the river from plaintiff's south line to her north line before the erection of the dam, but he...
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