Riverview Milling Co. v. State Highway Commission

• Citation: 130 S.E. 724,190 N.C. 692
• Decision Date: 16 December 1925
• Docket Number: 430.
• Parties: RIVERVIEW MILLING CO. v. STATE HIGHWAY COMMISSION.
• Court: North Carolina Supreme Court

130 S.E. 724

190 N.C. 692

RIVERVIEW MILLING CO. v. STATE HIGHWAY COMMISSION.

No. 430.

Supreme Court of North Carolina

December 16, 1925

Appeal from Superior Court, Stanly County; McElroy, Judge.

Proceeding before the clerk by the Riverview Milling Company against the State Highway Commission to assess damages on account of the taking of petitioner's property for a state highway and damages to other property not taken. From a judgment on the jury verdict in favor of respondent, petitioner appeals. No error.

Questions on cross-examination held proper to elicit whether witnesses had any bias.

The petitioner is the owner of certain properties situated on Rocky river in the counties of Stanly and Anson. On this property is situated a roller mill and mills, for meal, feed and other grain products, operated by water power supplied by dams across Rocky river. At the point where the mills are situated there is an island in the river extending above and below the mills. The old highway leading from Salisbury to Cheraw crosses Rocky river at the place where the mills are situated. About half a mile south of the mills and at the lower point of the island the petitioner also owned and operated a ferry, as well as a low-water toll bridge. This ferry had been owned and operated by the petitioner, and those under whom it claims, for a long time. The ferry was used in case of high water when vehicles could not ford the river at the mills. Petitioner had also certain rights of way over which it maintained roads leading from the old Salisbury and Cheraw highway at the mills to the ferry, on each side of the river. When the river was up, travel would leave the regular highway and go by petitioner's private roads to the ferry and cross the river and then by another private road of the petitioner, back to the highway. An island in Rocky river, immediately below the ferry, left only a narrow opening between the two islands through which the ferry was operated. When the river was low, it could be forded with wagons and buggies at the mills and the ferry would not be operated on account of the shoals in the river. When automobiles came into use they could not ford the river in as deep water as wagons and buggies, and, usually, when they could not cross the river on the ferry, because of shallow water, there was enough water to prevent them from fording the river. This condition caused the petitioner to erect a low-water bridge at the ferry site, using, on both sides of the river, the same entrance to the bridge and the ferry. This was a narrow passway, some 20 or 30 feet wide, leading from the high land to the water's edge. Low vehicles could cross on the low-water bridge, when the water was low but, when it rose and was over the bridge, they used the ferry. Petitioner offered evidence tending to show that by these two methods it was able to take care of the travel practically all the time, so that in time of both high and low water, the travel must needs go by the petitioner's mills. This gave the petitioner's mills much advertisement. Petitioner kept and successfully served a large volume of trade. The petitioner did not own any land at the ferry, except the rights of way and privileges of maintaining and operating the ferry. On the Stanly side of the river, petitioner's private road passed from the mill on beyond the ferry into the lower section of Stanly county whence came a great volume of patronage to the petitioner's mill.

Petitioner contends that, in 1921, the state highway commission decided to build a highway bridge across Rocky river between the counties of Anson and Stanly, and that its engineers located this highway bridge on the site of petitioner's ferry and low-water bridge, and that the state highway commission did not attempt to buy or condemn the location, but proceeded to build its bridge and complete it and open it for travel May 22, 1923. Petitioner further contends that, in building this bridge and its approaches, the respondent cut off the road leading from petitioner's mill to the ferry and into the lower part of Stanly county; that, where the bridge crosses the road, a fill 23 1/2 feet high was made, and that the fill and piers leading from the road to the river occupied petitioner's right of way which went to the ferry and bridge; that on the Anson side the respondent constructed a pier in petitioner's road as it led from the river to the high land; that respondent utilized or rendered useless all the property petitioner had at that location, cutting off its roads that led to the low-water bridge on both sides, and made it impossible on the Stanly side to get from the highway bridge down to the road leading from the bridge to the mill, and made it impossible for its custom coming from the lower part of the county to the mill to use the old road. It was further contended that the customers coming from the lower part of Stanly county were thus required to make a wide detour, several miles further than the original way of travel, and those from Anson county that crossed on the highway bridge had to go a mile or more by the new roads into Stanly county and then turn to the mill. The petitioner claims damages for the taking of its property and property rights and for the damage resulting to its property not so taken.

The defendant contended that, while the petitioner owned the property and rights alleged in the petition, it did not locate its highway bridge on the identical site of the low-water bridge and ferry, and that the petitioner used its ferry up to and including the day on which the highway was open for travel, and that petitioner was not damaged, for that the general and special benefits accruing to petitioner from the building of the highway were more than sufficient to offset any damages claimed, and that the real claim of petitioner was not for compensation for taking property and not for damages directly resulting to other property, but was an effort to obtain reimbursement for the inevitable result flowing from the building of a modern dependable highway, including a concrete bridge across Rocky river, so constructed that its floods would not interfere with the travel, but interfered with what defendant terms "petitioner's private monopoly," which it had enjoyed on account of the lack of transportation facilities by which competition with it could function.

The verdict was as follows:

"(1) What damage, if any, is the petitioner entitled to recover of the defendant by reason of the appropriation of a portion of the land of the petitioner by the defendant for the use of the state highway and bridge described in the petition? Answer: Not any.

(2) What benefit either general or special, or both, if any has accrued to the lands of the petitioner by reason of the construction of the state highway and bridge described in the petition? Answer: Nothing."

There was no exception to the issues submitted.

Manly, Hendren & Somble, of Winston-Salem, and R. L. Smith & Son, of Albemarle, for appellant.

Charles Ross, Asst. Atty. Gen., for appellee.

VARSER J.

The petitioner assigns error (1, 2, 3) in permitting counsel for respondent to ask the witness Hathcock, president of petitioner, certain questions as to what, in his opinion, would have been petitioner's damages if the state highway bridge had been built below petitioner's ferry. The witness answered that he did not think the ferry would be worth much if a free way to cross had been provided. The same kind of evidence was elicited on redirect examination. This witness had previously given his opinion as to the damages suffered by petitioner on account of the building of the bridge. The same kind of evidence was elicited from petitioner's witness Freeman, and petitioner objected. The damages sought was for the taking of property, but the evidence for petitioner on direct examination tended to show that the value of the property taken, and the resultant damages to its other property, was considerable because the highway bridge rendered it inaccessible to the trade, and reduced its value seriously.

It was not a question of what the state highway commission might have done, or how much petitioner would have been damaged under other circumstances, but it was a question of damages, certain, definite, not remote, but compensation for property, and property rights taken. The office of cross-examination is to sift, and test, and purge from the adversary's witnesses the elements composing their estimates of damages. The questions were competent on cross-examination. They show a skillful appreciation and use of the advocate's valuable art of cross-examination.

The right to have an opportunity for a fair and full cross-examination of a witness upon every phase of his examination in chief is an absolute right, and not a mere privilege. State v. Hightower, 187 N.C. 300, 310, 121 S.E. 616; Mining Co. v. Mining Co., 129 F. 668, 64 C. C. A. 180. Cross-examination "beats and boults out the truth much better than when the witness only delivers a formal series of his knowledge without being interrogated." Sir Matthew Hale, L. C.J., History of the Common Law, c. 12. In State v. Morris, 84 N.C. 764 (1881), Ruffin, J., says:

"All trials proceed upon the idea that some confidence is due to human testimony, and that this confidence grows and becomes more steadfast in proportion as the witness has been subjected to a close and searching cross-examination; and this, because it is supposed that such an examination will expose any fallacy that may exist in the statement of the witness, or any bias that might operate to make him conceal the truth, and trials are appreciated in proportion as they furnish the opportunities for such critical examinations."

The questioning was...