Switzerland Co. v. North Carolina State Highway & Public Works Commission

• Decision Date: 08 November 1939
• Docket Number: 235.
• Parties: SWITZERLAND CO. v. NORTH CAROLINA STATE HIGHWAY & PUBLIC WORKS COMMISSION.
• Court: North Carolina Supreme Court

5 S.E.2d 327

216 N.C. 450

SWITZERLAND CO. v. NORTH CAROLINA STATE HIGHWAY & PUBLIC WORKS COMMISSION.

No. 235.

Supreme Court of North Carolina

November 8, 1939

This is an action commenced by filing a petition before the Clerk of the Superior Court of Mitchell County to recover compensation for the taking of lands and easements in lands of the petitioner by the defendant in Mitchell and McDowell Counties for the construction of the Blue Ridge Parkway by virtue of Chapter 2, Public Laws 1935, Chapter 42, Public Laws 1937, and Chapter 33 (Eminent Domain) Consolidated Statutes.

There was an appeal from the report of the Commissioners appointed by the Clerk of the Superior Court at term and the cause was there tried and the following verdict rendered, to wit:

"1. What sum, if any, is petitioner entitled to recover of the defendant for the appropriation of and damage to lands of the petitioner described in the petition, over and above all general and special benefits accruing to petitioner's lands by reason of the construction of the parkway? Answer $25,000.00."

From judgment predicated on the verdict, the defendant appealed to the Supreme Court, assigning errors.

Charles Ross, of Lillington, Charles Hutchins, of Burnsville, and George L. Greene, of Bakersville, for appellant.

J C. B. Ehringhaus, of Raleigh, G. T. Carswell, of Charlotte McBee & McBee, of Spruce Pine, W. C. Berry, of Bakersville, J. W. Ragland, of Spruce Pine, M. L. Edwards and Fred Hamrick, both of Rutherfordton, and Taliaferro &amp Clarkson, of Charlotte, for appellee.

SCHENCK Justice.

The first exceptive assignment of error is to the following question and answer propounded to and made by the petitioner's witness, Heriot Clarkson, "Q. Tell the jury whether there is any reservation by the Highway Commission of North Carolina, or any division in it that you ever read which reserved or which required an exit from or entrance to the parkway from one end of the Little Switzerland property to the other? A. No, there is not." This assignment cannot be sustained. The answer of the witness is not a contradiction of the deed from the State of North Carolina to the United States, but is in accord with such deed. If it be conceded that there was originally error in the interrogatory and answer, such error was rendered harmless by the introduction of the deed referred to by both petitioner and defendant, which deed spoke for itself as to its provisions.

The second exceptive assignment of error was to a question propounded to the witness Clarkson, and which was never answered. The question, though permitted, cannot be held for error when not answered. It is a nullity.

The third exceptive assignment of error is to the following question and answer propounded to and made by the petitioner's witness Heriot Clarkson, to wit: "Q. Just assuming that the regulations do not permit one to either enter or exit from the parkway except on the right-hand side, just assuming that the regulations require an entrance and exit on the right-hand side, where one is travelling and wishes to get off, is there any way to get off of the highway? A. Of course, if you are not permitted to get off, you cannot get off." This question and answer was no more than a harmless comment upon the obvious, and is in no way prejudicial to the appellant.

The fourth exceptive assignment of error is to the following question and answer propounded to and made by the petitioner's witness Clarkson, to wit: "Q. But don't you know that under the laws of the United States the Secretary of the Interior has no right to make an exception? A. I don't know that." The answer given to the question rendered it harmless.

The fifth exceptive assignment of error is to the following question and answer propounded to and made by the defendant's witness Hennesee on cross examination, to wit: "Q. What do you say as to the effect that would have on the property where the only access to this property would be a road with a fee simple title and easement to the United States Government, in which there is no restriction in the deed to make that road a permanent access to the property? A. Well, if there was no road whatsoever, and if it was closed up, unquestionably it would damage it if the road was closed up." This question was clearly competent to test the witness' knowledge of the value of the lands involved, especially in view of his testimony in chief to the effect that the benefits to the lands would depend upon the road.

The sixth and seventh exceptive assignments of error are to the following questions and answers propounded to and made by the defendant's witness Stikeleather, on cross examination, to wit:

"Q. As a man interested in real estate and its sale and development, do you think that a man who was a prospective buyer would be affected as to his purchase, if his right of access and egress was cut off and there was just a mere possibility that he would have that right? A. I think that a man's ingress, egress and regress to his property would have a great deal to do with its value.

"Q. Do you think a man would want to purchase a lot if there was no permanent outlet, or what outlet there was was subject to revocation? A. No, I would not buy it as readily under those circumstances."

The witness had testified on direct examination that if he owned the Switzerland Company's property he "would prefer to have it (the parkway) on rather than to miss it." This rendered the questions assailed by the exceptions competent to test the knowledge of the witness of the subject concerning which he had testified.

The eighth, ninth and tenth exceptive assignments of error relate to contentions and allegations stated by the judge in the charge. These exceptions are untenable since they were not called to the attention of the Court at the time in order to afford an opportunity to correct them if in error. Walker v. Burt, 182 N.C. 325, 109 S.E. 43; State v. Johnson, 193 N.C. 701, 138 S.E. 19; State v. Herndon, 211 N.C. 123, 189 S.E. 173.

The eleventh exceptive assignment of error is to the following excerpt from the charge, to wit: "*** and thereafter, Gentlemen of the Jury, on March 4, 1938, the petitioner says and contends that you should find from the evidence that there was conveyed to the Federal Government in fee simple deed to land embraced within the 76.7 of the right of way taken under the condemnation, and easements to the remaining 12.12, making a total of 88.33 that was conveyed, which, as a matter of law, Gentlemen of the Jury, I instruct you, was a passing out of the State of North Carolina of the title by way of easements and fee simple to the property condemned, and which immediately upon its delivery vested in the government of the United States the title to that land which prior thereto was in, without dispute, the Little Switzerland Company, a corporation." This is a correct statement of applicable law. The deed from the defendant to the United States both in fact and in law did "pass title" to the United States for lands formerly owned by the petitioner.

The twelfth exceptive assignment of error is to an excerpt from the charge for which no reason is given in the brief of the appellant except that it does not comply with C.S. § 564, but does not state wherein it fails to so comply, under which circumstances the exception is untenable. Davis v. Keen, 142 N.C. 496, 55 S.E. 359; Jackson v. Ayden Lumber Co., 158 N.C. 317, 74 S.E. 350.

The thirteenth exceptive assignment of error is to the following excerpt from the charge, to wit: "An easement, Gentlemen of the Jury, has been defined as a liberty, privilege or advantage in land, without profit, existing distinct from the ownership of the soil--(as in fee simple). An easement is the right which one person has to use the land of another for a specific purpose." This definition of an easement is in accord with Thomas v. Morris, 190 N.C. 244, 129 S.E. 623, and Davis v. Robinson, 189 N.C. 589, 127 S.E. 697, and the assignment cannot be sustained.

The fourteenth exceptive assignment of error is to the following excerpt from the charge, to wit: "Therefore, Gentlemen of the Jury, in this case I instruct you that in arriving at the amount of compensation the petitioner, the Little Switzerland Company, would be entitled to receive, if any, or ought to receive, if any, your general rule is to estimate the value of the land actually taken, in fee simple and by way of easements thereon, and the damage, if any, to the remainder of the petitioner's boundary or tract of land by reason of the location and construction of the parkway, and from such sum or sums there should be taken as a counterclaim or set off or offset or reduction any benefits, general or special, which the petitioner has sustained or received by reason of the addition to the value, if any, of the remainder of the boundary or tract of land known as Little Switzerland, and owned by the Little Switzerland Company, by reason of the general or special advantages thereto." This charge is in accord with Bailey v. Highway Commission, 214 N.C. 278, 199 S.E. 25, and the exception is therefore untenable.

The fifteenth and sixteenth exceptive assignments of error are to the following excerpts from the charge, to wit "Gentlemen of the Jury, there has been introduced in evidence in this case a deed from the State of North Carolina to the United States Government conveying the premises described therein and in said deed certain reservations were made. I charge you that no evidence has been offered in this case of any conveyance or reconveyance, either to the State of North Carolina or its citizens of any easements or rights in the property so acquired by any deed or instrument sufficient in law to reinvest...