City of Greensboro v. Garrison

• Decision Date: 25 November 1925
• Docket Number: 392.
• Citation: City of Greensboro v. Garrison, 130 S.E. 203, 190 N.C. 577 (N.C. 1925)
• Parties: CITY OF GREENSBORO v. GARRISON ET UX.
• Court: North Carolina Supreme Court

130 S.E. 203

190 N.C. 577

CITY OF GREENSBORO v. GARRISON ET UX.

No. 392.

Supreme Court of North Carolina

November 25, 1925

Appeal from Superior Court, Guilford County; McElroy, Judge.

Proceeding by the City of Greensboro to condemn a right of way across the lands of A. D. Garrison and wife.From an award of appraisers, all parties appealed to the superior court, and from a judgment for damages, the city appeals.No error.

Under authority conferred by Private Laws 1923, c. 37, the city of Greensboro instituted a proceeding to condemn a right of way 10 feet wide over the land of the respondents for the construction of a sewer line connecting Arlington and Vance streets.Appraisers were appointed, and they made their report, assessing damages.To this award the city and the property owners excepted, and appealed to the superior court.It was admitted upon the trial that the respondents are the owners in fee of the land described in the pleadings; that the city has the right of condemnation; that the proceeding was regular; and that only the issue of damages was to be determined.The jury heard the evidence and assessed damages.Judgment was rendered for owners of the property, and the city appealed, assigning error.

That sewer ditch across land was not completed at time witness made observation of land held not to render incompetent his estimate of value.

Fentress & Moseley, of Greensboro, for appellant.

Frazier & Frazier, of Greensboro, for appellees.

ADAMS J.

G. C Hill, a witness for the respondents, went to Garrison's home and looked over the premises while the ditch was open.On the direct examination, he was permitted, after objection to express his opinion as to the difference in the fair market value of the property just before and just after the construction of the sewer.He testified on the cross-examination:

"I do not know of my own knowledge that this ditch has ever been closed up.I judge that the ditch has been closed up.I am basing my estimate on the ditch open; that is, when I saw it."

On the redirect examination, in answer to a hypothetical question to which there was no objection, he gave his estimate of the decreased value of the property on the assumption that the sewer line had been laid and the ditch closed.

McKelvey, in his work on Evidence, 231, observes there are two classes of witnesses who are ordinarily spoken of as experts--one class embracing these persons who by reason of special opportunities for observation are in a position to judge of the nature and effect of certain matters better than persons who have not had opportunity for like observation.Referring to the subject in Harper v. Lenoir, 152 N.C. 723, 730, 68 S.E. 228, 231, the court said:

"Evidence of this character from witnesses who have had personal observation of relevant facts and conditions, and whose opinion is calculated to aid the jury to a correct conclusion, is coming to be more and more regarded as competent, and its reception has been sanctioned and approved in several recent decisions of the court."

The general principle upon which this class of evidence is admitted is laid down in 4 Wigmore on Evidence (2d Ed.) § 1917, and approved, among others, in the following cases: Taylor v. Security Co.,145 N.C. 383, 59 S.E. 139, 15 L. R. A. (N. S.) 583, 13 Ann. Cas. 248;Wade v. Telephone Co.,147 N.C. 219, 60 S.E. 987;Davenport v. Railroad,148 N.C. 287, 294, 62 S.E. 431, 128 Am. St. Rep. 599;Wilkinson v. Dunbar,149 N.C. 20, 62 S.E. 748;Lumber Co. v. Railroad,151 N.C. 217, 65 S.E. 920;Ry. Co. v. Man. Co.,169 N.C. 156, 85 S.E. 390, L. R. A. 1916A, 1090;Lambeth v. Thomasville,179 N.C. 452, 102 S.E. 775;Hill v. Railroad,186 N.C. 476, 119 S.E. 884.

The appellant admits the general principle, but contends that under the peculiar circumstances of the case the witness was not qualified to express an opinion as to the decreased value of the property after the ditch had been closed.It will be noted that the question objected to was addressed to "the difference in the fair market value of the property of Mr. Garrison just before and just after the taking of the right of way for the sewer line and the building of the sewer line"; also that the estimate of the witness was based upon his personal observation of the land as he saw it when the ditch was open.As tending to show his estimate of value, made upon observation, the evidence was not incompetent merely because the work had not then been completed.The dimensions of the ditch had previously been described by Garrison; and, as the witness was afterwards permitted without objection to give his estimate of damages resulting from the completed work, we see no satisfactory reason for excluding the estimate made upon his observation of the open ditch.In any event, it was a circumstance for the consideration of the jury.

The second exception was taken to the exclusion of the testimony of M. M. Boyles, a witness for the city.He was an engineer of the water and sewer department, and supervised the construction of the sewer line through...