Raleigh, C. & S. Ry. v. Mecklenburg Mfg. Co.

• Decision Date: 25 May 1915
• Docket Number: 434.
• Parties: RALEIGH, C. & S. RY. v. MECKLENBURG MFG. CO.
• Court: North Carolina Supreme Court

85 S.E. 390

169 N.C. 156

RALEIGH, C. & S. RY. v. MECKLENBURG MFG. CO.

No. 434.

Supreme Court of North Carolina

May 25, 1915

Appeal from Superior Court, Mecklenburg County; Harding, Judge.

On petition for rehearing. Dismissed.

For former opinion, see 166 N.C. 168, 82 S.E. 5.

Questions may be asked on cross-examination to test the value of a witness' testimony, which are not permissible on examination in chief by the party calling him.

This is a petition to rehear the former decision in the above-entitled case, which is reported in 166 N.C. 168, 82 S.E. 5. The petition was filed by the defendant, and relates only to the plaintiff's appeal, in which a new trial was given for reasons stated in the opinion of the court. The proceedings were brought for the condemnation of a right of way over the defendant's lands, upon which it had erected a mill for the manufacture of cotton goods, with its buildings for employés and other appurtenances. The contentions of the parties upon the issue as to damages are thus stated in the opinion of this court:

"The plaintiff's exceptions are numerous, but all refer to the evidence and the charge on the measure of damages. The plaintiff contends that the defendant was entitled as compensation to the value of the land embraced in the right of way, plus any direct actual damages to any part of the remaining land.

The defendant contends that the compensation to which it is entitled is the difference in the value of its entire manufacturing plant and premises, embracing 20 acres, before the right of way was condemned and afterwards, and that this difference in value is to be estimated by taking into consideration that the operation of a steam railroad would inconvenience and annoy the operatives by the noise, smoke and inconvenience produced by the trains operating in proximity to their houses; that the dangers and perils to the operatives in going to and from their work would be increased by having to cross said railroad track; that the lives and limbs of the children of the mill operatives will be imperiled by their crossing said track in going to school and while playing near by; that their parents would be in constant fear while at work in the mill lest the children should be run over by the passing trains; and that on account of these conditions the better class of operatives will be driven away, and the defendant will be able to secure in their places only inferior help at increased wages, with result of a decrease in the quantity and quality of the mill output and an increase in the cost of production, thereby materially depreciating the market value of the property as a cotton-manufacturing plant."

This court held that:

"The right of eminent domain is granted because the public interest requires that private property shall be taken for public use under the circumstances and in the manner prescribed by law. The owner is entitled as compensation to the actual and direct damages which he may sustain by being deprived of his property. These damages are limited to those which embrace the actual value of the property taken and the direct physical injuries to the remaining property."

Referring to the contentions of the defendant as to the considerations and the facts which should enter into the assessment of damages, as above set forth, the court said:

"The jury were allowed to consider these as grounds of damages, and also to introduce as experts cotton manufacturers to give their opinion as to the effect upon the value of this mill property by the laying out of the plaintiff's right of way. These experts estimated that the difference on the pay roll from the above causes would be $4,000 to $5,000 per year, which they capitalized at $60,000 to $80,000, and expressed their 'expert opinion' that the plaintiff should pay the defendant this sum of money as damages for the right of way 100 feet wide, of which only some 20 feet probably is actually occupied by the railroad and a little over 300 yards long."

The court rejected this evidence, which the lower court allowed to be heard, upon the ground that it was conjectural and speculative, and did not fall within the rule laid down that the defendant was entitled to recover, as compensation, the actual and direct damages, which it may sustain by being deprived of its property, which are limited to those that embrace the actual value of the property taken and the direct physical injury to the remaining property. The defendant asks that we rehear and reverse that decision, upon the following grounds, and because of the errors therein, which are assigned in the certificate of counsel, by which we are restricted, as follows:

"(1) The court erred in holding that only evidence of actual physical injury to the land not taken could be considered.

(2) The court erred in holding that, in ascertaining the depreciation in the market value of the land, the defendant was not entitled to have the whole plant considered and valued.

(3) The court erred in holding that the defendant was not entitled to show depreciation in the market value of the land on account of dangers, inconveniences, and annoyances to its mill operatives and their children as the result of the running of trains at grade through the mill village over the plaintiff's right of way.

(4) The court erred in holding that it was not competent for the defendant to show that the operating of trains over the right of way through the mill village would disorganize help, increase wages, and decrease production of the defendant's manufacturing plant.

(5) The court erred in holding that the dangers, inconveniences, and annoyances suffered by the defendant as the result of the operation of trains over the right of way in question were common to all property owners alike.

(6) The court erred in holding that the opinions of experienced cotton manufacturers were incompetent to show the depreciation in the market value of the defendant's plant on account of the dangers, annoyances and inconveniences resulting from the operation of trains through its mill village.

(7) The court erred in declaring that the jury were allowed to consider as grounds of damages the estimates of mill 'experts' as to the increased pay roll of the defendant, capitalized at from $60,000 to $80,000.

(8) The court erred in stating that there was no evidence tending to show that the defendant had lost even one of its operatives by reason of the location of the plaintiff's tracks, or had been forced to pay higher prices to its operatives, or hire inferior help for that cause."

Under each assignment of error, and as a part thereof, the particular part of the opinion of this court to which it is addressed is set out, for the purpose of showing the ruling of this court alleged to be erroneous. It is not necessary to repeat them here, as they can readily be found in the opinion. The foregoing statement will be sufficient for a clear understanding of the questions raised on this rehearing.

Tillett & Guthrie, of Charlotte, for plaintiff.

Cansler & Cansler and J. W. Keerans, all of Charlotte, for defendant.

WALKER, J. (after stating the facts as above).

In this case both parties appealed to this court from the judgment below; the defendant upon the ground that the land was not subject to condemnation under our statute which exempts certain property from the operation of the law. This view was rejected by the court; the writer of this opinion dissenting. The plaintiff's contention that there were errors in the rulings and charge of the court below was sustained, and a new trial ordered.

The first five errors in our former decision, now assigned, may naturally be considered together, as, if we were wrong in holding that only the value of the land actually taken and the direct physical injury to that which was left can be considered, there was error, and the other assignments relate only to the extent of the error. We are satisfied, upon reconsideration of the case, that the rule thus stated by the court was entirely too narrow and restricted, and, if applied without modification, or at least full explanation, will not afford just compensation to those whose lands may be appropriated for a public use; but we do not think this requires that the former conclusion or judgment of this court should be reversed, for reasons to be hereinafter stated. It may be said, generally, that there are some, if not many, indirect injuries to land, not necessarily of a physical kind, which will diminish its value, and which are susceptible of the kind of proof which the law requires in cases generally.

It may in the beginning be readily and fully conceded that mere conjecture, speculation, or surmise is not allowed by the law to be a basis of proof in respect of damages or compensation. The testimony offered should tend to prove the fact in question with reasonable certainty. Byrd v. Express Co., 139 N.C. 273, 51 S.E. 851; Machine Co. v. Tobacco Co., 141 N.C. 284, 53 S.E. 885. There are expressions in the case of Railroad v. Wicker, 74 N.C. 220, which give some support to the ruling in this case, but the principles stated in that case have been greatly modified by subsequent decisions of this court, and we have been brought more in line and into more perfect agreement with the prevailing thought upon this subject, as exhibited in the many decisions of other courts. We are not permitted to apply the same rule in a case of this sort as obtains with reference to one where there has been no condemnation or taking of land for a public use, and where the injury complained of may be no more than a mere inconvenience or annoyance to an adjacent proprietor, which is common to all others similarly situated.

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