Caldwell Power Co. v. Russell

• Decision Date: 10 December 1924
• Docket Number: 489.
• Citation: 125 S.E. 481,188 N.C. 725
• Parties: CALDWELL POWER CO. v. RUSSELL ET AL.
• Court: North Carolina Supreme Court

125 S.E. 481

188 N.C. 725

CALDWELL POWER CO. v. RUSSELL ET AL.

No. 489.

Supreme Court of North Carolina

December 10, 1924

Appeal from Superior Court, Caldwell County; Long, Judge.

Condemnation proceedings by the Caldwell Power Company against Chas Russell and wife and others. From a judgment awarding damages, plaintiff appeals. No error.

Proceedings to condemn land, giving plaintiff a right of way for its power lines over lands of defendant. The proceedings were instituted before the clerk, on June 16, 1922, commissions appointed, land and route designated, and damages assessed and judgment for amount, in September, 1922, by the clerk. Defendants, having duly excepted, appealed to superior court of Caldwell county, where same was heard on an issue as to amount of damages at May term, 1924, before his honor, B. F Long, judge, and a jury. The jury awarded damages to the amount of $150. Judgment for same, and plaintiff, having duly excepted, appealed to this court, assigning errors in the charge on the issue as to damages.

Where easement acquired by power company for electric power line gave it privilege of appropriating entire right of way, and of authorizing as many lines as company saw fit to construct landowner was properly permitted to recover for impaired value of land, including value of land actually covered by right of way, with damages to remainder of tract used by owner as one tract less peculiar benefits to tract.

Squires & Whisnant, of Lenoir, for appellant.

Lawrence Wakefield, of Lenoir, and E. B. Cline, of Hickory, for appellees.

HOKE C.J.

There is no exception made in the record as to plaintiff's right to condemn the land for the purposes indicated, nor as to the regularity of the proceedings looking to that result, nor to the condemnation itself; the single question being as to the amount allowed defendants, and the rule given by which the same has been estimated. On that issue the court charged the jury in part as follows:

"The measure of permanent damages against this defendant, for appropriating a right of way over plaintiff's lands for the construction of an electrical overhead system, is the difference between the fair market value of the land before the right of way was taken and its impaired value, directly, materially, and proximately resulting to plaintiff's land by the placing of the power line across the premises in the manner, and to the extent, and in respect to the uses for which the easement was acquired."

The court, among others, further instructed the jury as follows:

"As I may be able to do so, I will try and give you the rule for the measure of damages in a case of this kind. One of these rules I find to have been made by Judge Hoke in Railroad v. Armfield, 167 N.C. p. 464, 83 S.E. 809, etc., which is as follows: In awarding compensation to the owner of land for an easement acquired, recovery may be had for the impaired value, including as a rule the market value of the land actually covered by the right of way, with damages to the remainder of the tract or a portion of the land, if any, used by the owner as one tract, deducting from the estimate the pecuniary benefits or advantages, if

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