De Bruhl v. State Highway & Public Works Commission
| Decision Date | 12 December 1956 |
| Docket Number | No. 99,99 |
| Citation | 95 S.E.2d 553,245 N.C. 139 |
| Court | North Carolina Supreme Court |
| Parties | Arthur M. DE BRUHL and wife, Janie W. DeBruhl, Petitioners, v. STATE HIGHWAY & PUBLIC WORKS COMMISSION, Respondent. |
Sanford W. Brown, Asheville, for petitioner-appellees.
R. Brookes Peters, Raleigh, and McLean, Gudger, Elmore & Martin, Asheville, for respondent-appellant.
The basic question in this case is: What is the property for which compensation is to be paid? At the pretrial conference in October 1954 the court concluded that compensation was to be paid for the land taken, excluding any house thereon. The order fixing the issue to be submitted to the jury became the theory on which the case was to be tried. So long as that remained the pattern on which the case was to be tried, the evidence should be confined to the value of the land. Evidence tending to show the value of the house was not germane and hence was not competent. Godfrey v. Western Carolina Power Co., 190 N.C. 24, 128 S.E. 485; Connor v. Fleming Bros. Lumber & Mfg. Co., 197 N.C. 66, 147 S.E. 672; Shepherd v. W. T. Mason Lumber Co., 166 N.C. 130, 81 S.E. 1064; Moore v. Horne, 153 N.C. 413, 69 S.E. 409; Sprinkle v. Ponder, 233 N.C. 312, 64 S.E.2d 171. Where it is apparent that the incompetent evidence affected the verdict of the jury, the admission of such evidence is prejudicial error. State v. Page, 215 N.C. 333, 1 S.E.2d 887; Deming v. Gainey, 95 N.C. 528.
Plaintiffs consistently assert that the theory on which the case was tried is not correct and unduly circumscribes their right to compensation. To protect and preserve their rights they offered evidence as to the value of the land and the house. This evidence was extensive. The evidence so offered was admitted over objection by the defendant. The evidence and statement of contentions with respect thereto in the charge of the court form the basis of more than 200 exceptions. While many of these exceptions may be lacking in substantial merit, enough remain to make it appear that the verdict was affected by the incompetent evidence.
Arthur DeBruhl was permitted, over objection, to testify to the size of his house, its width and depth, the direction it faced, its locaton with respect to the northern line of the right of way acquired in 1949, that this line passed some two feet north of the southeast corner of his home and six feet north of the southwest corner. He exhibited a map which showed the lot and house thereon with the north right-of-way line indicated by a red line. He testified the house had seven rooms, describing the size of each room, the kind of flooring to be found in each room, the kind and number of bath fixtures and where located, the type of water heater, the kind of electric range and other electric fixtures with which the house was equipped, the kind of walls and kind of paint used on the different walls, the kind of furnace used to heat the house, the number of rooms on the second floor, with a description of the stairway leading to the second floor, the kind of roof, the size of the basement, the size and kind of porches, and the tapestry brick used to veneer the house. For the purpose of illustrating his testimony he offered photographs and a floor diagram of the house. He was asked his opinion of the fair market value of the land on 7 May 1952. He replied: 'It was $200.00 a front foot.' It is not disputed that the lot has a frontage of fifty feet. Hence, applying plaintiff's value to the land, the jury should have answered the issue $10,000. Immediately after plaintiff fixed the value of the land alone he was asked: 'What was the value in dollars of the entire property?' He replied: '$22,800.00.'
Four other witnesses were used by plaintiffs to establish their claim for compensation. None were called upon to express an opinion as to the value of the land without the house.
Witness McKinney was asked his opinion of 'the fair, reasonable market value of the DeBruhl property north of the red line on Druid Drive, on May 7, 1952.' He replied: Witness Whitaker, responding to a similar question, fixed the value at $17,500. Witness Riddle fixed the value at $15,500, and Mrs. DeBruhl placed the value at $22,800.
The jury fixed the value of the land without the house at $12,500. We are unable to find any evidence in the record to support the verdict. There is plenary evidence in the record to support the verdict if compensation is to be paid for that portion of the house beyond the north line of the right of way acquired by defendant in 1949. That the evidence with respect to the house, detailed and minute as it was, affected the verdict is too apparent to admit of debate, and this is so notwithstanding the express instruction given the jury at the request of defendant: 'You will not consider any evidence in this case concerning any house that may have been located upon the lands appropriated by the respondent for highway purposes.'
Counsel for appellees, with commendable frankness, says: 'If respondent did own the remainder of the dwelling or had paid for damages to it, it is obvious that error was committed in permitting testimony as to the value of the remainder of the dwelling.'
To remand the case for a new trial without more would leave the basic question stated in the beginning of the opinion unsettled and would, we apprehend, result in protracted litigation which may be avoided if that question is now answered. Normally questions not determinative of the appeal are not decided, but in this instance we feel justified in answering the question essential to a correct solution of this case. We have the benefit of the briefs filed at the Spring Term 1955 which are directed at that identical question.
The parties are in agreement that the question does not involve any issue of fact. The answer is to be found upon a construction of the written instruments executed in 1948 and 1949 in connection with the construction of Project 9075 and is a question of law to be determined by the court. Brown v. Hodges, 232 N.C. 537, 61 S.E.2d 603.
On 2 December 1948 plaintiffs gave to defendant an option to purchase a specifically described right of way for highway purposes. Following the description fixing the boundaries of the right of way, the option provides: (Emphasis added.) Then follow provisions fixing the time within which the option may be...
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De Bruhl v. State Highway and Public Works Commission, 98
...Judgment was entered on the verdict, and the respondent excepted, and appealed to the Supreme Court. The appeal is reported in 245 N. C. 139, 95 S.E.2d 553, 558. Rodman, J., in concluding the opinion for the Court, 'Since defendant did not acquire, in 1948 and 1949, any portion of the build......
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