Carolina Power & Light Co. v. Creasman, 96

• Decision Date: 10 July 1964
• Docket Number: No. 96,96
• Court: North Carolina Supreme Court
• Parties: CAROLINA POWER & LIGHT COMPANY, Petitioner, v. Jack Ben CREASMAN and wife, Norma K. Creasman, and Buncombe County, North Carolina, Defendants.

Page 497

137 S.E.2d 497

262 N.C. 390

CAROLINA POWER & LIGHT COMPANY, Petitioner, v. Jack Ben CREASMAN and wife, Norma K. Creasman, and Buncombe County, North Carolina, Defendants.

No. 96

Supreme Court of North Carolina.

July 10, 1964

Van Winkle, Walton, Buck & Wall and Herbert L. Hyde, Asheville, for petitioner.

Lamar Gudger, Sanford W. Brown, and James P. Erwin, Jr., Asheville, for respondents Creasman.

BOBBITT, Justice.

PETITIONER'S APPEAL

In condemnation proceedings, the petition, when filed by the condemnor, 'must contain a description of the real estate which the corporation seeks to acquire.' G.S. § 40-12; 29 C.J.S. Eminent Domain § 259; 18 Am.Jur., Eminent Domain § 325. The condemnor must 'first locate the property.' Gastonia v. Glenn, 218 N.C. 510, 11 S.E.2d 459. Ordinarily, absent an amendment, the only property a condemnor may acquire is that described in the petition. See 29 C.J.S. Eminent Domain § 322.

Here, the petition describes a parcel of land fronting 69.82 feet on the western margin of Heywood Road, containing (.012) 12/1000ths of an acre, while the judgment describes a parcel of land fronting 120 feet, more or less, on the western margin of Heywood Road, containing (.042) 42/1000ths of an acre. This unusual result was reached in the manner stated below.

No issue or controversy was raised by the pleadings or otherwise prior to the commencement of the trial concerning the location on the earth's surface of the parcel of land petitioner sought to condemn. However during the testimony of Mr. Gove, petitioner's first witness, it became apparent that a controversy did exist as to the location of the western margin of Heywood Road. Mr. Gove, who prepared Exhibit A from a survey he made, testified, in effect, the western margin of Heywood Road as shown on Exhibit A is some eleven or twelve feet west of the western edge of the gravel or stone roadway. If so, the western margin of Heywood Road was west of an embankment and in aportion of the area treated as respondents' yard. Respondents asserted the western edge of the gravel or stone roadway was the western margin of Heywood Road.

Respondents contended: (1) The parcel of land petitioner sought to condemn is described in the petition as beginning in the western margin of Heywood Road. (2) Petitioner sought to condemn up to the line (elev. 2170) south 9? 42' 28' east 57.44 feet as shown on Exhibit A. (3) Petitioner sought to condemn a triangular parcel (.042 acre) enclosed by these lines: (a) the line south 9? 42' 28' east extended to the western edge of the gravel or stone roadway; (b) the line south 51? 58' 57' west extended to the western edge of the gravel or stone roadway; (c) a closing line along the western edge of the gravel or stone roadway 120 feet more or less (north 5? 34' 01' east).

Petitioner contended: It sought to condemn the parcel of land (.012 acre) described in its petition, having a frontage of 69.82 feet on the western margin of Heywood Road, and no more.

A map identified as Exhibit B was placed upon a blackboard. Originally, Exhibit B was only a greatly enlarged copy of Exhibit A. However, additional lines were drawn thereon and particular locations thereon were identified by letters. For present purposes, it is sufficient to say: The western margin of Heywood Road, if located as contended by respondents, was indicated on Exhibit B by the line P-W-O. The western margin of Heywood Road, if located as contended by petitioner and as shown on Exhibit A, was indicated on Exhibit B as the line A-D-B.

A controversy as to what land a condemnor is seeking to condemn has no place in a condemnation proceeding. It is for the condemnor to determine what land it seeks to condemn (Morganton v. Hutton & Bourbonnais Company, 251 N.C. 531, 112 S.E.2d 111) and to describe it in its petition by reference to uncontroverted monuments. The court's efforts to resolve by stipulation the controversy as to what land petitioner sought to condemn were in vain. There was no amendment of the petition. In this situation, the court, over petitioner's objection, submitted the first issue. The only apparent purpose thereof was to have the jury determine what land petitioner sought to condemn. While decision is based on other grounds, it is noted that uncertainty as to what land was being condemned gave rise to uncertainty in much of the testimony relating to before and after fair market values of respondents' property.

Petitioner, prior to the next trial, should determine and identify on the earth's surface by uncontroverted monuments the land it seeks to condemn and amend its petition so as to describe this parcel of land.

Respondents offered much evidence tending to show the location, construction, etc., of their dwelling and other improvements on their lands. No part of such improvements are on the parcel (under either contention) petitioner seeks to condemn. All are on the remaining portion of .413 acre, more or less.

There was evidence tending to show the following:

Powell Creek flows west into the French Broad River. Petitioner constructed its dam across Powell Creek approximately twenty-five hundred feet east of the French Broad. The buildings constituting the power plant are 1000-1500 feet east of the dam. The power plant produces electricity from coal. The lake (Skyland Lake), '325 acres of water,' is described as a 'cooling lake.' '(C)ooling water' is taken out of the lake at one point and pumped through the condensers. The condensed boiler steam then enters the cooling lake at a different point, circulates therein and becomes available for further use. The furnace of one boiler 'is a bigger area than this Court Room.' The smokestack 'is a concrete stack' and 'is 393 feet high.' When the water of Powell Creek is insufficient additional water is pumped from the French Broad into Skyland Lake. A railroad line was constructed for the purpose of transporting coal to the power plant.

The male respondent testified: 'The steam plant will be located one mile due west from my home.' Another witness testified: 'This smokestack is half a mile from (respondents') property. ' The male respondent testified: 'My home is going to be some 600 feet from the railroad track.' Another witness testified the railroad line was a thousand feet from respondents' property.

An arm of Skyland Lake (at normal water line) will be some forty feet from and within sight of respondents' property. The land petitioner seeks to condemn is being acquired as a means of access to the edge of Skyland Lake

Formerly, respondents, proceeding north from their property along Heywood Road, crossed a bridge (422 feet north of their property) over Powell Creek and continued on Heywood Road until they reached U. S. Highway #25. Then they proceeded on #25 to Skyland or beyond to Asheville. Now Heywood Road dead ends a short distance north of respondents' property, having been barricaded after destruction of the bridge over Powell Creek, and respondents cannot now (on account of Skyland Lake) travel the said route to #25. The road presently available to respondents as a means of access to #25 necessitates travel for an additional mile or so if en route (north) to Skyland or Asheville rather than (south) to Hendersonville.

Although much evidence was admitted, over objections by petitioner, as to the matters referred to therein, the court instructed the jury as follows: '* * * I instruct you to disregard any and all testimony relating to anticipated inconveniences and damages of the defendants from insects, fogs, ashes blown from ash disposal area, fumes blown by the wind, appearance of steam plant, water pollution and noxious odors, the presence of coal smoke and the growth of algae and other matter in and along the edge of the lake, and any and all other speculative and conjectural matters.' The instruction was correct. However, for reasons indicated below, the admission of the evidence was error. We apprehend this instruction, given at the end of a protracted trial, was insufficient to remove the prejudicial effect of a mass of incompetent evidence bearing upon the matters referred to in said instruction.

Much evidence was admitted, over objections by petitioner, to the effect respondents' water service and sewer service were less satisfactory after relocation of the lines due to the impounding of water to form Skyland Lake. The record shows the court, before charging the jury, stated to counsel for petitioner that he would instruct the jury respondents could not recover compensation on account of the changes in the water and sewer lines. The court, through inadvertence, failed to give such instruction.

Much evidence was admitted, over objections by petitioner, as to the inconvenience caused by the closing of Heywood Road north of respondents' property on account of (1) the greater distance to the Skyland business area, (2) the greater distance to church, (3) a less convenient place for the children to board the school bus, etc. Evidence offered by petitioner tends to show the said portion of Heywood Road was closed and an alternate road provided by action of the Board of Commissioners of Buncombe County pursuant to G.S. § 153-9(17). In this connection, attention is called to Snow v. Highway Commission, N.C., 136 S.E.2d 678.

Much evidence was admitted, over objection by petitioner, to the effect the construction, maintenance and operation by petitioner of said steam plant, together with the dam, the lake, the railroad, etc., in a desirable rural residential community, seriously and adversely affected the fair market value of property in the community. Concerning such evidence, the court instructed the jury as follows: 'They (respondents) say and contend that this was formerly residential property and that that was its highest and best use, was for residential property. They say and contend that the location of this lake, the location of the plant in the immediate...