Durham & N. B. Co v. Tr.S Of Bul Lock Church

• Decision Date: 14 January 1890
• Court: North Carolina Supreme Court
• Parties: Durham & N. B. Co. v. Trustees of Bul lock Church.

10 S.E. 761

(104 N.C. 525)

Durham & N. B. Co.

v.Trustees of Bul lock Church.

Supreme Court of North Carolina.

Jan. 14, 1890.

Eminent Domain —Compensation—Evidence — Procedure.

1. Where a railroad has condemned part of a church property, it is competent, for the purpose of proving that the value of the residue was impaired as church property by the location and use of the road, to show that horses could not be left on the grounds, as the passing trains frightened them, and rendered them unsafe, and that people would not go to the church to worship, as they were disturbed by the same causes.

2. In proving damages to property arising from the location of a railroad on it, it is competent to prove the value of the property before such location, preparatory to showing what it was worth after the road was constructed.

8. Where, in condemnation proceedings, plaintiff excepts to the report of the commissioners solely on the ground that the assessment was excessive, and defendants do not except at all, the inquiry before the court is not what damages defendants have sustained, but whether the assessment was excessive; and a judgment for defendants for a greater amount than the assessment, though entered on a verdict, and not excepted to, will, on appeal, be reduced to the extent of the excess over the commissioners' report.

Appeal from superior court, Granville

county; Groves, Judge.

Batchelor & Devereux, for appellant. Graham & Winston, for appellee.

Merrimon, J. The plaintiff brought its summary proceeding to condemn land of the defendants for the purpose of right of way for its railroad. Commissioners were appointed to view the land and assess damages. They afterwards did so, and made their report, to which the plaintiff excepted and objected, upon the ground that the damage assessed was excessive. In the superior court a proper issue was submit-ted to a jury. On the trial the parties examined divers witnesses. Certain of those examined by the defendants respectively testified as follows, plaintiff excepting to parts of their testimony as indicated in the course of their examination: The defendant introduced M. L. "Winston, who testified: "I have been accustomed to attend Bullock Church all my life. Have examined the boundaries. There is a ditch around three sides of the church land. The lot is a parallelogram, with the longest side on the railroad; the other three sides bounded by private property. The public highway has been taken and occupied by the railroad, and the highway put upon church land, —that is, on land condemned for right of way. (Defendant proposed to show that the land was used for the purpose of hitching horses, etc. Plaintiff objected. Objection overruled. Exception.) Some horses are hitched on the east line, some on the north and south ends, on the church land. There is nearly three-fourths of an acre left. Before railroad was laid out, have seen two or more horses hitched to the same tree, besides many buggies and other vehicles being on the ground. The owner of the adjacent land cut a ditch about eighteen inches deep on the church line, on all three sides, except next to the railroad. The church is about 35x54 feet, and about 100 feet from the railroad. I have been at the church when the train passed. There is a very large membership. (Defendant then proposed to show the value of the property before the railroad was built. Plaintiff objected. Objection overruled. Plaintiff excepted.) Witness stated that before road was built he valued the property at about $1,000; now thought it was worth $600. Taking off the land condemned makes the lot more oblong, being smaller in the rear. Church stands on slight hill; a depression behind the church. Church yard is well wooded. The church is not cut off from the highway. I was one of the commissioners appointed to assess the damages. I am not a member of the Methodist Church; I am a minister of the Christian Church. Before the land was condemned, they had barely enough for church purposes; taking off one-fourth of the land would depreciate the value of the building. " H. R. Gooch, witness for defendant, stated that the lot was in the shape of a parallelogram, with the railroad on the long side of it. "Sometimes [before the railroad was built] there was not room enough in the lot for church purposes, and there is not enough now. Horses could see train from any part of lot, unless they were put behind the church. Have been there during services. (The defendant proposed to show the effect of running trains by the church during services. Plaintiff objected. Objection overruled. Exception.) The attention of the congregation was diverted from the minister to the passing train. The only way of approach to the church is by the way along-side of the railroad; a ditch having been cut around the other three sides of it. The property was worth $1,250 for church purposes, and was so valued in report to conference. I consider the railroad has damaged it fully one half." On cross-examination, witness said: "I am a mem ber of that church. Attention is sometimes diverted by persons coming in. Church has not been valued since the report to conference. The congregation is falling off. Some leave their teams at home and walk, and some have gone to other churches. It is now worth but little for church purposes." There was a verdict and judgment for the defendants, and plaintiff appealed to this court.

We need not trouble ourselves to settle here the particular rules to be observed in assessing damages under the statutory provisions of this state against railroad companies, occasioned by the location of the right of way for their railroads across the land of individuals, because the plaintiff requested the court, among other things, to instruct the jury "that the defendant is only entitled to recover such actual damages as result from the taking of the land, and such damages as directly flow therefrom, " and it gave this instruction. Indeed it gave all the instructions asked for by the plaintiff, with slight modification, to which there was no objection. The plaintiff cannot then complain of the instructions given. For the present purpose, treating them as correct, we are of opinion that the exceptions to evidence cannot be sustained. The evidence in respect to hitching horses, objected to, was not offered for the purpose of showing dam ages, special or otherwise, as suggested on the argument, but for the pertinent purpose of showing that the value of the...