Nantahala Power & Light Co. v. Horton
| Decision Date | 14 January 1959 |
| Docket Number | No. 22,22 |
| Citation | 249 N.C. 300,106 S.E.2d 461 |
| Parties | NANTAHALA POWER AND LIGHT COMPANY, Petitioner, v. Oze E. HORTON and wife, Bessie G. Horton; J. G. Stikeleather, Jr., and wife, Dorothy Stikeleather; Ruth Lane Atkinson and husband, Frank C. Atkinson; Herman G. Nichols and wife, Elizabeth Shuford Nichols; and Andrew Gennett, Executor of the Estate of Carter T. Gennett, Deceased, Respondents. |
| Court | North Carolina Supreme Court |
Morgan, Ward & Brown, Waynesville, for respondents Horton, appellants and appellees.
Ward & Bennett, Asheville, for respondents Stikeleather and others, appellants and appellees.
Whatever rights the grantors in said deed of May 10, 1938, reserved by the 'exceptions, limitations and reservations' therein set forth, vested in respondents Horton when the condemnation proceeding was instituted. Subject thereto, respondents Stikeleather, et al., owned the 557-acre tract in fee simple.
Unquestionably, said reservations and exceptions severed the minerals and mining rights from the surface rights. Vance v. Guy, 223 N.C. 409, 27 S.E.2d 117, and cases cited; English v. Harris Clay Co., 225 N.C. 467, 35 S.E.2d 329.
Respondents Stikeleather, et al., on their appeal, challenge the validity of said 'exceptions, limitations and reservations' in respect of water power rights. We accept, for purposes of this appeal, the referee's conclusion of law, adopted by the court, to which respondents Horton did not except, to wit, that said reservations and exceptions were sufficient, 'in form and substance, in law, to withdraw from the grant and to reserve in the grantors the water power on said land, within its boundaries, and together therewith the easements recited in connection therewith.'
At February Term, 1954, all respondents, by stipulation, deferred their controversy, inter se, and made common cause against the Power Company in the trial that resulted in jury award of $11,500. It is noted that the evidence upon which the jury based its verdict is not before us, nor was it before the referee or court below. What elements of damages were considered by the jury? The record provides no answer.
Under these circumstances it was incumbent upon the contestants to establish their respective interests in the $11,500 fund.
Upon plenary competent and uncontradicted evidence, the referee found, inter alia, that the remainder of the 557-acre tract, after excluding the 90.4 acres, consisted of forest lands with marketable timber of the fair market stumpage value of $24,000 and with wood of the fair market stumpage value of $10,704, and that the only means of access thereto had been destroyed by the flooding of roads within the 90.4 acres. Based largely on these particular findings, the referee found that the damage to the fee in the remaining 466.6 acres caused by the condemnation of the 90.4 acres was $37,280. (Note: The referee found that there was no marketable timber on the 90.4 acres but made no finding as to the fair market value of the 90.4 acres.)
The referee found 'that the taking and appropriating of the 90.4 acres and its inundation' by the Power Company destroyed all mineral and water power rights of respondents Horton therein. But the referee also found: (1) '* * * there is no evidence of any actual value of the mineral interest condemned and appropriated or on the remainder of the 557-acre tract.' (2) '* * * the portions of the East Fork Tuckaseegee River and Robinson Creek, either separately or jointly, within the boundaries of the 557-acre tract alone, was not susceptible of practical economical hydro-electric water power development and * * * as such had no actual marketable value.'
Respondents Horton complied carefully with all procedural requirements to reserve their right to a jury trial. Bartlett v. Hopkins, 235 N.C. 165, 69 S.E.2d 236; Brown v. E. H. Clement Co., 217 N.C. 47, 6 S.E.2d 842; Booker v. Town of Highlands, 198 N.C. 282, 151 S.E. 635. They were entitled to a jury trial 'upon the written evidence taken before the referee' (G.S. § 1-189) if it contained evidence that the easement condemned by the Power Company caused more than nominal damages in respect of mineral and water power rights.
1. As to minerals and mining rights, the only evidence offered in behalf of respondents Horton was the testimony of respondent Oze E. Horton. He testified that he had leased a mica mine, 'located on a little knob not far below the Island Ford,' (within the 90.4 acres) to one R. G. Parker 'about 1939 and 1940'; that he thought Parker 'had it about two years,' but did not know how long it was actually operated or...
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