Nantahala Power & Light Co. v. Moss

Decision Date29 October 1941
Docket Number26.
Citation17 S.E.2d 10,220 N.C. 200
PartiesNANTAHALA POWER & LIGHT CO. v. MOSS. SAME v. NORTON. SAME v. DAVIS et al. (two cases).
CourtNorth Carolina Supreme Court

[Copyrighted Material Omitted]

There are four separate condemnation proceedings instituted before the Clerk of the Superior Court of Jackson County for the purpose of condemning the right to divert the waters of the west fork of Tuckaseegee River from the lands of the various respondents and for a right of way 240 feet long for a tunnel over the lands of the respondent Ida Moss. The causes were consolidated for the purpose of trial.

The petitioner owns a dam site on the west fork of the Tuckaseegee River upstream from the lands of the several respondents. It also owns a large body of land above the dam site for reservoir purposes. The petitioner also owns all the land on both sides of the river below the dam to the property of the respondents, a distance of about one-half mile including what is known as High Falls. Below the lands of the petitioner each respondent owns a tract of land running to the thread of the stream, including riparian rights in the waters of the river as follows: (1) On the right-hand side going down the J. W. Davis heirs own 11 acres known as the Davis "little" tract, having a frontage of 450 feet on the stream; (2) the respondent Ida Moss owns 372 acres with 11,731 feet frontage on the stream on the right-hand side; (3) across the river on the left-hand side the respondent W. C. Norton owns a tract containing 525 acres fronting approximately 4,726 feet; (4) next on the left-hand side is situate the J. W. Davis heirs "big" tract. Within the Davis "big" tract and fronting on the river is the Reed & Warren tract with a frontage of 2,417 feet, belonging to the petitioner. The Davis "big" tract has water frontage of 5,038 feet above the Reed &amp Warren tract, a frontage of 2,155 feet within the boundary of the Reed & Warren tract, and approximately 3,201 feet below the Reed & Warren tract, its frontage, due to the location of Reed & Warren tract, being broken into three sections.

The petitioner established its power house downstream a considerable distance below the property of respondents and constructed a tunnel or tube from the dam to the power house to convey the water. This diverts all of the water entering the river above the petitioner's dam, but other waters entering the stream furnish water to the lands of the respondents for all ordinary domestic and stock-raising purposes.

These several proceedings were instituted for the purpose of fixing the compensation to be paid to the several respondents for the diversion of such waters through the instrumentality of the tunnel or tube extending from the dam site above the property of respondents to the power plant considerably below such property.

The jury answered the several issues submitted, fixing the amount of compensation to be paid to the individual respondents. From judgments thereon the petitioner appealed.

Dan K. Moore, and Stillwell & Stillwell, all of Sylva, and Harkins, Van Winkle & Walton, of Asheville, for appellant.

Hayes Alley, of Waynesville, and Jones, Ward & Jones, of Asheville, for appellees.


The petitioner has not taken and does not seek to take any part of the property of any one of the respondents except a right of way or easement for the tunnel which passes across the land of the respondent Ida Moss. It only seeks the right to divert the waters of Tuckaseegee River which passes along the boundary line of the respective respondents and to have the compensation to be paid therefor fixed and determined. And it is conceded that as the property line of each respondent extends to the thread of the stream each is a riparian owner affected by the diversion of the waters of such stream. The right to so divert is a proper basis for condemnation proceedings.

The petitioner complains that the court below permitted the cause to be tried upon the theory, in part, that the respondents are entitled to compensation for the diversion of the waters of Tuckaseegee River on the basis of advantages thereby accruing to the petitioner. That is, on the basis of the enhanced value of its development resulting from the use of the water as diverted. It contends that under the evidence offered and the charge of the court the jury was permitted to award respondents a ratable share of the value to the petitioner based on fall per foot in the whole development. Its contentions in this respect are properly presented by a series of exceptions duly preserved. While the exceptions in this respect are numerous we may consider the one question thereby presented without discussing any one of the exceptions in detail.

Witnesses were permitted to give testimony as to the location and nature of petitioner's reservoir and power plant, the location of its dam, the length of its tunnel and the total fall thereby created, the relative location of the lands of respondents, the proportionate part of the fall owned by them and other facts relating to the benefits accruing to the petitioner from the taking. They were then permitted to estimate the value of respondents' land when considered as an essential part and parcel of the whole development.

In its charge the court reviewed this evidence in detail, calling the attention of the jury to the fact that the witnesses had said: "That the diversion of the river and making the tunnel has enhanced the value of petitioner's proposition, and that he took this in consideration in placing his estimate of value upon respondent's property"; "in considering the hydro-electric proposition he said he figured each one of these tracts as a unit of considerable potential value, assuming that a plant would be developed, that the whole would be developed into what he would consider a great water power"; "he considered the respondents' property as a part of the petitioner's property, as one of its units"; "he has made his estimate on the basis of a unit by the owners, and also in connection with the petitioner"; "that the petitioner could not profitably or practicably proceed or have any such power proposition as it now has without this diversion of the river and that he took this into consideration in placing his value on the respondents' property"; "he arrived at the estimate of its value by considering all the property, including the respondents' property and the petitioner's property as a unit"; "that this property is an essential part of that unit, and that the petitioner is now using all of it as one unit"; and "the petitioner has developed part of the unit and is now trying to get the rest of the unit".

The court then called the attention of the jury to the contentions made by respondents based upon this evidence to the effect in part that the petitioner cannot operate without the right to divert the water from the lands of the respondents and that the acquisition of such right "is indispensable to the petitioner".

The market value of property is the yardstick by which compensation for the taking of land or any interest therein is to be measured and market value of property is the price which it will bring when it is offered for sale by one who desires, but is not obliged to sell it, and is bought by one who is under no necessity of having it. In estimating its value all of the capabilities of the property, and all of the uses to which it may be applied, or for which it is adapted, which affect its value in the market are to be considered, and not merely the condition it is in at the time and the use to which it is then applied by the owner. 2 Lewis, Eminent Domain (3d), 1228 and numerous cases cited; Brown v. Power Co., 140 N.C. 333, 52 S.E. 954, 3 L.R.A.,N.S., 912; Pemberton v. Greensboro, 208 N.C. 466, 181 S.E. 258; Highway Comm. v. Hartley, 218 N.C. 438, 11 S.E.2d 314 and cases cited; Bonbright, Valuation of Property, Vol. 1, p. 411, et seq.; Nantahala Power Co. v. Carringer, 220 N.C. 57, 16 S.E.2d 453, and cases cited; Ford Hydro-Electric Co. v. Neely, 7 Cir., 13 F.2d 361; Annotation, 75 A.L.R. 857; 10 R.C.L. 128.

That this is the true rule to be followed in ascertaining the compensation due the respondents seems to be conceded. The application of the rule and what is to be excluded from consideration in ascertaining the reasonable market value is the hub of the controversy.

The just compensation rule merely requires that the owner of the property taken shall be paid for what is taken from him. "It deals with persons, not with tracts of land. And the question is, What has the owner lost? not, What has the taker gained?" Boston Chamber of Commerce v. Boston, 217 U.S. 189, 30 S.Ct. 459, 460; 54 L.Ed. 725. The value of the property to the condemnor for his particular use is not to be considered. Western Carolina Power Co. v. Hayes, 193 N.C. 104, 136 S.E. 353; United States v. Chandler-Dunbar W. P. Co., 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063 and cases cited; United States v. Hayman, 7 Cir., 115 F.2d 599.

Value to the taker of a piece of land combined with other parcels for public use is not the measure of or guide to the compensation to which the owner is entitled. Olson v United States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236 and cases cited. Highway Comm. v. Hartley, supra. "The value of the land taken to the party taking it is not the test of what should be paid, nor should the fact that the land is desired or needed for a particular public use be considered when it is taken for that use". 18 Am.Jur. 881. Neither the value to the condemnor nor his necessity can be taken into consideration when fixing the value. 18 Am.Jur. 882; McGovern v. New York, 229 U.S. 363, 33 S.Ct. 876, 57 L.Ed. 1228, 46 L.R.A.,N.S., 391; ...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT