Whiting Mfg. Co. v. Carolina Aluminum Co.

• Decision Date: 19 September 1934
• Docket Number: 35.
• Parties: WHITING MFG. CO. v. CAROLINA ALUMINUM CO.
• Court: North Carolina Supreme Court

175 S.E. 698

207 N.C. 52

WHITING MFG. CO. v. CAROLINA ALUMINUM CO.

No. 35.

Supreme Court of North Carolina

September 19, 1934

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

Action by Whiting Manufacturing Company against Carolina Aluminum Company. From an unsatisfactory judgment plaintiff appeals.

No error.

Charge as to measure of damages where property was taken under power of eminent domain, that market value was price which property would bring when offered for sale by one who desired but was not obliged to sell and when bought by one who was under no necessity of buying, and that in estimating value all capabilities for which property was adapted might be considered and not merely condition it was in at time and use to which it was applied by owner, held proper.

This is an action of ejectment brought by plaintiff, a corporation against defendant, a corporation, to recover possession of about one acre of land in Graham county, N. C., on Snowbird river, in the shape of a triangle. The plaintiff alleged that it was the owner of the land and defendant is in the wrongful possession of same. The defendant denied that plaintiff was the owner and set up as a defense certain statutes of limitation. The defendant, as a further defense, set up the following:

"(1) The defendant, the Carolina Aluminum Company (formerly the Tallassee Power Company), is a corporation created by the act of the General Assembly of North Carolina, chapter 122 of Private Acts of 1905, and duly organized thereunder that among other rights, powers and privileges conferred by said act of the Legislature, this defendant was given the right to own, construct and develop and operate dams and water powers, with all the rights and privileges incident thereto, including the right of eminent domain for condemning land for the ponding of water and other purposes, which charter, or act of the Legislature, is referred to as fully as if written herein, and asked to be made a part of this answer. (2) This defendant says that it is informed and believes that in the event the plaintiff establishes a superior title to that portion of the lands described in the complaint, which is claimed by the defendant, or if it establishes damages thereto, that it has the right to have said land condemned in this action, and permanent damages assessed by the jury in this action for the value of that portion of the property which is claimed by the defendant if the plaintiff establishes superior title thereto; and this defendant here elects that should plaintiff establish its right to the portion of the land claimed by the defendant, that permanent damages be assessed therefor.

Wherefore, having fully answered, defendant prays that the action be dismissed and that it go without day and recover its cost; or, in the event that plaintiff establishes superior title to the portion of the land described in the complaint, claimed by the defendant, that the same be condemned and permanent damages assessed therefor in this action."

The defendant also, in a supplemental answer, set up a contract between the two corporations (Tallassee Power Company, predecessor in title) in which certain things were to be done by each corporation, and that in the contract it had a right to purchase the land at $10 an acre. The plaintiff made reply denying the material allegations of the defense of defendant corporation and set up the following: "That it is advised, informed and believes that the defendant was not, at the time of the trespass, and is not now, a public service corporation and had not then nor has it yet, complied with or brought itself within the requirements and provisions of the Constitution, and the laws of North Carolina, made in pursuance thereof, to justify and invest in it the right and power of eminent domain; that the defendant is, in reality, and was at the time of the trespass, existing, acting and doing business only as auxiliary corporation of the Aluminum Company of America, which is a corporation of some foreign state, and wholly concerned and employed in strictly private business and enterprise and not public service, and plaintiff says to allow the defendant to take plaintiff's property under the guise of a public service corporation, as it seeks to do, would be taking private property for a private use and without due process of law, in contravention and against the provisions of section 1 of the Fourteenth Amendment of the Constitution of the United States of America and Article 1, § 17 of the Constitution of the State of North Carolina, and the laws thereof."

The plaintiff also, in reply to defendant's supplemental answer, says that the contract referred to, of October 5, 1917, expired and became inoperative after May 1, 1920. The plaintiff further says:

"However, if the Court should hold that the defendant is entitled to have plaintiff's land condemned and permanent damages assessed, which right this plaintiff denies, then this plaintiff would show the Court further and asks leave to amend its complaint by supplementing and adding thereto the following paragraph, to-wit:

That the plaintiff's lands described in the complaint is situated on and covers and embraces a large scope of Big Snowbird River, which river, on account of its geographic location, its large volume of water, rapid and average flow, and other attendant facilities, made it favorably adaptable and highly suitable and valuable for potential water power, and plaintiff's said land was, in addition to the other valuable and adaptable use of great and high value as a water power proposition, et cetera.

The defendant, well knowing the location, boundary and title of plaintiff's land before and at the time it completed its lake and appropriated the same, made no effort whatever to purchase said land from the plaintiff or to procure its consent for its use and that if the defendant contends that it had the right of power of eminent domain at that time, plaintiff alleges and shows to the Court that it made no attempt or effort whatever to exercise such right as prescribed by the laws of the State of North Carolina, but that it, without the knowledge or consent of plaintiff, chose to confiscate or take the same without purchase or due process of law."

After setting forth other matters, the plaintiff made the following prayer: ""Wherefore, plaintiff prays judgment of the Court against the defendant: (1) For relief of ejectment of defendant from its land as demanded in the complaint. (2) For $750.00 for amount due by defendant for rental value of said land. (3) If the Court should hold that defendant has the right to condemn and appropriate the plaintiff's land, then plaintiff demands judgment for: (a) $4000.00 permanent damages. (b) $500.00 as punitive damages. (c) For the costs of this action and such other and further relief and remedies in the premises as to the Court may seem just and proper."

The defendant in reply, among other things, says: "That the said plaintiff, as this defendant is advised and believes, has sold and conveyed to the Champion Fibre Company, under deed dated the 19th day of December, 1926, and recorded in the office of the Register of Deeds of Graham County, North Carolina, in Book 36, page 1, all of the exclusive rights, privileges and easements conveyed to it under said contract between it and the defendant, thereby creating a continual or perpetual, right or easement, to it or its grantees, to the use of said water in said reservoir for transportation purposes."

The defendant makes the following prayer: "Wherefore, the defendant prays judgment: (1) That the Court order specific performance by the plaintiff of each and every of the terms of the contract of October 5th, 1917, providing for the conveyance of any lands owned by the plaintiff which have not heretofore been conveyed to the defendant at the price of $10.00 an acre, be complied with. (2) That the Court decree that the plaintiff is estopped by its contract and by its acts and conduct from demanding from the defendant a greater sum than $10.00 per acre for any lands owned by it that may be overflowed by the waters impounded by the Melton or Santeetlah Dam, and that it be required to execute deed therefor upon the payment, or tender, to it of the sum of $10.00 per acre for all such lands to which it held title at the date of the commencement of this action."

The plaintiff replies to this and sets up a letter dated May 11, 1928, from an agent of defendant, requesting extension of the contract of October 5, 1917, which plaintiff refused on May 18, 1928, contending the contract expired May 1, 1920.

The following issues were submitted to the jury by the court below and their answers thereto: "(1) Is the plaintiff the owner of that portion of the land described in the complaint shown on the map from B to 2 and from 2 to 7, 7 to 8, and from 8 back to B, which is now in the possession of the defendant? A. Yes.

(2) Is the defendant in the unlawful and wrongful possession of said land? A. Yes.

(3) If so, is the plaintiff required under the terms of the contract to convey said land to the defendant at ten dollars per acre? A. No.

(4) Is the plaintiff estopped under the terms of its contract and by its acts and conduct to charge the defendant more than ten dollars per acre? A. No.

(5) Is the plaintiff under its contract with the defendant and by its acts and conduct estopped to assert its right to the possession of said land? A. No.

(6) What permanent damages, if any, is the plaintiff entitled to recover of the defendant for the lands in question? A. $350.00."

The court below rendered judgment in accordance with the verdict and in the judgment is the following: "It is thereupon considered,...