Nantahala Power & Light Co. v. Sloan

• Decision Date: 26 February 1947
• Docket Number: 17
• Citation: 41 S.E.2d 361,227 N.C. 151
• Parties: NANTAHALA POWER & LIGHT CO. v. SLOAN.
• Court: North Carolina Supreme Court

41 S.E.2d 361

227 N.C. 151

NANTAHALA POWER & LIGHT CO. v. SLOAN.

No. 17

Supreme Court of North Carolina

February 26, 1947

This is a condemnation proceeding.

The Town of Franklin, in 1925, constructed a hydro-electric plant near said town and thereafter instituted a condemnation proceeding against the owners of the property in controversy in this proceeding for the purpose of establishing an easement on said property for a reservoir created by a dam 25 feet in height.

A consent judgment was entered in that proceeding, on July 16 1928, granting an easement in favor of the Town of Franklin which judgment also fixed the amount of damages which this respondent and the heirs at law of J. S. Sloan, deceased were entitled to recover of the Town of Franklin by reason of the construction and maintenance of said reservoir.

It is admitted that the petitioner, Nantahala Power & Light Company, thereafter acquired the hydro-electric plant constructed by the Town of Franklin, including the easement acquired by said town on respondent's property.

In 1943, the petitioner raised the level of the water in the reservoir created by the original dam one vertical foot, and instituted this proceeding for the purpose of acquiring an easement for the additional burden created thereby.

Prior to the introduction of evidence, it was stipulated that the petitioner went into possession of the premises described in the petition and answer on May 4, 1943, for the purposes described in the petition, and that the only issue to be determined in this cause is the amount of compensation to which the respondent is entitled by reason of the taking of the additional land and compensation for the injury, if any to the remainder of the premises.

Over the objection of the respondent the petitioner was permitted to introduce the consent judgment referred to above.

The jury assessed respondent's damages at $1,000, and judgment was entered accordingly.

Respondent appealed to the Supreme Court, assigning error.

G. L. Houk and Geo. B. Patton, both of Franklin, for petitioner.

Jones & Jones, of Franklin, and Jones & Ward, of Asheville, for respondent.

DENNY Justice.

The sole question presented on this appeal, is whether or not the Court below committed error in permitting the petitioner, over the objection of the respondent, to introduce the consent judgment which established the original easement on the premises of the respondent, which easement is now held by the petitioner, and also fixed the damages which this respondent and the children and heirs at law of J. S. Sloan were entitled to recover as compensation therefor.

The appellee insists that the consent judgment was offered only for the purpose of establishing the prior easement and not as evidence on the question of damages. We think the position of the appellee is untenable. If it had been necessary to introduce the consent judgment in order to show the existence of the original easement, we would have an entirely different factual situation from that which is presented on this record. Creighton v. Board of Water Commissioners, 143 N.C. 171, 55 S.E. 511, 10 Ann.Cas. 218.

Here the existence and the extent of the original easement are alleged in the petition and not denied in the answer. Therefore, the respondent admitted the existence and extent of the petitioner's easement prior to raising its dam one vertical foot. Such admission is as binding on the parties as if found by the jury, and 'evidence offered in relation thereto is irrelevant. ' State v. Martin, 191 N.C. 401, 132 S.E. 14, 15.

Furthermore, the parties stipulated before the introduction of any evidence, to go to the jury only on the question of damages, and it is clear that this case was tried upon the theory that the only compensation or damages which the respondent is entitled to recover is for the taking of the additional land described in the pleadings and for the injury, if any, to the remainder of the premises. Hence, the respondent is entitled to recover the difference in the fair market value of her property immediately prior to May 4, 1943, the date the additional burden was placed thereon by the petitioner, and the fair market value of the property immediately thereafter. Nantahala Power & Light Co. v. Moss, 220 N.C. 200, 17 S.E.2d 10; State Highway & Public Works Comm. v. Hartley, 218...