South Carolina Power Co. v. Baker

• Decision Date: 14 January 1948
• Docket Number: 16030.
• Parties: SOUTH CAROLINA POWER CO. v. BAKER et al.
• Court: South Carolina Supreme Court

46 S.E.2d 278

212 S.C. 358

SOUTH CAROLINA POWER CO. v. BAKER et al.

No. 16030.

Supreme Court of South Carolina

January 14, 1948

Williams & Busbee, of Aiken, and Hagood, Rivers & Young, of Charleston, for appellant.

John E. Standfield, of Aiken, for respondents.

OXNER Justice.

Respondent George Phillip Baker owned a tract of land in Aiken County containing approximately 903 acres upon which respondent Hugh F. Williams held a mortgage. Only a small portion of this tract was in cultivation. It was largely woodland and used for the purpose of growing timber. On August 26, 1946 appellant, South Carolina Power Company, served notice on the owner and mortgagee that it required a right-of-way across this tract of land, consisting of a strip 6014 feet long and varying in width from 200 to 250 feet and embracing a total area of approximately 30 acres, for the purpose of constructing, operating and maintaining an electric transmission line, 'together with all rights and privileges necessary or convenient for the full enjoyment or use thereof for the purposes above described, including the right of ingress and egress over and across said strip, and the right to cut and keep clear all trees and undergrowth and other obstructions on said strip.'

The parties were unable to agree upon the amount which should be paid as just compensation for the right-of-way mentioned and on October 26, 1946, upon petition filed by appellant in the Court of Common Pleas, an order was issued directing the Clerk of Court to impanel a jury for the purposes of ascertaining the compensation which should be paid to the owner. Thereafter this jury assessed compensation in the sum of $5765.00. The Power Company appealed to the Court of Common Pleas where a trial de novo was held and the jury there found the value of the right-of-way to be $5454.84. Appellant made a motion for a new trial on the ground that the verdict was excessive. The motion was refused and this appeal followed.

There are six exceptions. Five of these relate to the charge of the trial Judge and the sixth assigns error in his refusal to set aside the verdict and grant a new trial on the ground that the verdict was excessive.

It is contended that the Court below erred in failing to charge the jury as to the burden of proof. At the conclusion of the charge in which no reference had been made to the question of burden of proof, the Court inquired of counsel if either party desired anything further. Appellant's counsel answered in the negative. Respondents' counsel called the Court's attention to the fact that the jury had not been charged as to the burden of proof, to which the Court replied: 'There is no burden of proof, under the statute.' Counsel for neither side made any further comment or request.

There is a sharp conflict in the decisions on the question of burden of proof as to the value of the land taken in condemnation proceedings. This may be accounted for to some extent by the differences in the applicable constitutional and statutory provisions of the various states. The weight of authority seems to be to the effect that the burden is upon the landowner to show the amount which he is entitled to receive as just compensation. Lewis on Eminent Domain, 3d Ed., Volume 2, pages 1112 to 1118; Nichols on Eminent Domain 2d Ed., Volume 2, page 1138. In one of our early decisions Charleston & S. R. Co. v. Blake, 12 Rich. 634, it was held that the right to open and reply in evidence and argument on an appeal from the assessment of commissioners appointed to value a right-of-way was a matter largely within the discretion of the trial Judge, but that generally the owner of the land should be regarded as the actor and entitled to open and reply. This rule has since been abrogated by the enactment of a statute, now Section 8441 of the 1942 Code, which provides that upon the hearing of an appeal to the Court of Common Pleas, 'an issue shall be ordered, in which the appellant shall be the actor, and the question of compensation shall be thereupon submitted to a jury in open court, whose verdict shall be final and conclusive, unless a new trial shall be ordered by the Supreme Court.' The effect of this statute, as appellant concedes, is to impose upon the party appealing the burden of showing the value of the right-of-way or easement acquired. The failure of the trial Judge to charge the jury to this effect was favorable to appellant and obviously it is not in a position to complain.

Respondent Baker also claimed in his answer to the notice of condemnation that the residue of his land would be damaged by the erection of this transmission line. The burden of proof on this issue presents a different question. We are not inclined to think that the statute above mentioned was intended to change the well established rule that the burden is upon the landowner to show that the value of his remaining land will be diminished by the taking. Such damages will not be presumed. The following is taken from Nichols on Eminent Domain, 2d Ed., Volume 2, page 729: 'The burden of proof is upon the owner to show that the taking of part of his property will cause damage to the remainder, and unless he shows such damage by affirmative evidence, furnishing a basis from which a reasonable and proper estimate of the amount thereof can be made, his compensation will be limited to the value of the land taken; and it is of course competent for the condemning party to rebut such evidence.'

Appellant's counsel did not request the Court to charge that the burden was upon respondents to show that the use of the right-of-way condemned would cause damage to the remainder of the tract of land and when asked at the conclusion of the charge whether anything further was desired, replied in the negative, thereby indicating that appellant's counsel were satisfied with the general charge which contained no reference to any phase of the burden of proof. It was respondents' counsel who then suggested that the Court charge as to the burden of proof. When the trial Judge replied that there was no burden of proof under the statute, he probably was referring to the burden of proof as to the value of the right-of-way acquired. This was evidently the thought that respondents' counsel also had in mind as it was not to respondents' advantage to call the Court's attention to the phase of the burden of proof of which appellant now complains. We do not think the Court intended the language used as an unqualified refusal to charge the jury as to any phase of the burden of proof. Any ambiguity could have been easily clarified by inquiry from counsel but none was made.

Appellant cannot now complain of the failure of the Court to charge that the burden of proof was upon respondent Baker to show damage to the remainder of his land when there was no request to charge to this effect and the Court's attention was not called to the omission. Honour v. Southern Public Utilities Co., 110 S.C. 163, 96 S.E. 250; McNinch v. City of Columbia, 128 S.C. 54, 122 S.E. 403; Tolbert v. Southern Mut. Life Ins. Co. et al., 175 S.C. 338, 179 S.E. 308; Jeffords v. Florence County, 165 S.C. 15, 162 S.E. 574, 81 A.L.R. 313; Shockley v. Cox Circus Co., Inc. et al., 204 S.C. 353, 29 S.E.2d 491, 495. In both McNinch v. City of Columbia, supra, and Tolbert v. Southern Mut. Life Ins. Co., supra, it was held that the failure to charge as to a certain phase of the burden of proof did not constitute reversible error where there was no request to that effect and the Court's attention was not called to the oversight. In Shockley v. Cox Circus Co., Inc. et al., supra, the Court said 'it is incumbent upon counsel to request more complete instructions when they conceive that their client's rights require such. They cannot, with propriety, silently listen to a trial judge's charge and thereafter complain that it was not full enough on any particular point.'

The next question is whether the Court erred in submitting to the jury the question of damage to the remainder of the tract of land. Appellant contends that this was error because respondents offered no proof of such damage. As previously pointed out, damage to the remainder of the tract was claimed in respondents' answer to the notice of condemnation. When the testimony was concluded and just before the trial Judge commenced his charge, the Court in the absence of the jury made the following inquiry of counsel: 'What is your respective view of the element of damages under the statute?' Appellant's counsel made the following response: 'I think the actual damages and special damages will do.' The statute under which appellant proceeded allows compensation for the value of the land taken and also for any 'special damage' resulting from such taking. The jury was charged substantially in accordance with the terms of the statute. While there may be some testimony to the general effect that the value of the remainder of the tract of land will be diminished by the taking of this right-of-way which intersects the entire tract near the middle, we agree with appellant that the testimony was entirely too indefinite to form a basis for the award of special damages. Indeed, respondents' counsel asserts in his brief that no claim to such damages is made. But appellant made no motion for a nonsuit or a directed verdict as to special damages and failed to call the Court's attention to the fact that the evidence was insufficient to support such a claim. The rule is well established in this State 'that an instruction upon an issue as to which there is no evidence whatever, or of mistake in stating issues, is not reversible error, unless the attention of the court is called to the matter.' Burns v. Goddard, 72 S.C. 355, 51 S.E. 915, 917. ...