Williams v. State Highway Commission of N. C., 314

Citation252 N.C. 514,114 S.E.2d 340
Decision Date18 May 1960
Docket NumberNo. 314,314
CourtUnited States State Supreme Court of North Carolina
PartiesRansom WILLIAMS and wife, Edna Orders Williams, v. STATE HIGHWAY COMMISSION OF NORTH CAROLINA.

Simpson & Simpson, Morganton, for plaintiffs-appellants.

Atty. Gen. T.W. Bruton, Asst. Atty. Gen. Kenneth Wooten, Jr., G. Andrew Jones, Raleigh, Patton & Ervin, Morganton, for respondent-appellee.

WINBORNE, Chief Justice.

At the outset it is noted that Exceptions 1, 2, 9, 29 and 30 were expressly abandoned by petitioners, and Exceptions 5, 6, 7, 10 and 32 not having been set out in appellants' brief, are taken as abandoned by them. Harmon v. Harmon, 245 N.C. 83, 95 S.E.2d 355, 63 A.L.R.2d 808; Lieb v. Mayer, 244 N.C. 613, 94 S.E.2d 658.

Neverthless appellants assign as error the exclusion of certain testimony offered by them relating to a Mr. Cabe, an alleged agent of respondent. Part of this testimony consisted of observations of and conversations with Mr. Cabe by petitioner Ransom Williams in the course of settlement negotiations. Neither the purpose for which the excluded testimony was offered, nor the asserted basis of its admissibility are stated in the record. It is apparent that petitioners wanted to place before the jury statements allegedly made by Mr. Cabe to petitioners during the course of negotiations, that "they have damaged you $15,000," and "if he was going to sue, he would sue for $15,000." The statements were hearsay and therefore inadmissible unless within an exception to the hearsay rule. The extra-judicial declarations were not competent to prove the agency of the declarant. Parrish v. Boysell Mfg. Co., 211 N.C. 7, 188 S.E. 817; Sledge v. Wagoner, 250 N.C. 559, 109 S.E.2d 180. Even if it be conceded that declarant was respondent's agent, there was no showing that the quoted statements were within the scope of authority of declarant, and the burden of so showing was on petitioners. Fanelty v. Rogers Jewelers, 230 N.C. 694, 55 S.E.2d 493; Sledge v. Wagoner, supra.

Assignments of error, based on exceptions taken, are made to the admission of testimony of two of respondent's witnesses relating to damages suffered by petitioners. Witness Mull, on direct examination, after testifying in detail as to his qualifications and his observations of the land in question, and after giving his opinion as to the reasonably fair market value of the land before and after the taking, was asked to describe how he arrived at his opinion of the difference. He replied: "By breaking the land down to its highest and best use, I computed what would be approximately 3 1/2 acres of frontage along the Jamestown Road which I figured at $1,000 an acre * * *." Petitioners objected to "highest and best use". In Nantahala Power & Light Co. v. Moss, 220 N.C. 200, 17 S.E.2d 10, 13, this Court said: "In estimating its value all of the capabilities of the property, and all of the uses to which it may be applied, or for which it is adapted, which affect its value in the market are to be considered, and not merely the condition it is in at the time and the use to which it is then applied by the owner." This principle is cited in Gallimore v. State Highway and Public Works Commission, 241 N.C. 350, 85 S.E.2d 392, and Barnes v. North Carolina State Highway Commission, 250 N.C. 378, 109 S.E.2d 219, 229. "The highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future is to be considered not as a measure of value but to the full extent that such prospect or demand for such use affected the market value at the time respondents were deprived of their (property)." Barnes v. North Carolina State Highway Commission, supra, quoting Nantahala Power & Light Co. v. Moss, supra. The witness had already testified as to his opinion as to the reasonably fair market value of the land. The phrase "highest and best use" was used by witness to show one of the factors considered in arriving at his opinion of the market value. As stated in North Carolina State Highway and Public Works Commission v. Privett, 246 N.C. 501, 99 S.E.2d 61, 64: "Cross-examination was the available medium whereby the weight of the testimony might be impaired by showing that the witness 'considered elements and followed methods' that did not reflect fair market value either before or after the taking." The highest and best use was certainly one of the capabilities of the property. It was one of the uses to which the land might be applied, or for which it was adapted, and one which affected its value. Indeed, the highest and best use, the highest and most valuable use, the highest and most profitable use, or the most advantageous use are generally accepted factors in determining the market value of land taken in condemnation proceedings. United States v. Toronto, Hamilton & Buffalo Nav. Co., 338 U.S. 396, 70 S.Ct. 217, 94 L.Ed. 195; Olson v. United States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236; People v. Ocean Shore R.R., 32 Cal.2d 406, 196 P.2d 570, 6 A.L.R.2d 1179; City of Chicago v. Harbecke, 409 Ill. 425, 100 N.E.2d 616; Steifer v. Kansas City, 175 Kan. 794, 267 P.2d 474; Louisiana Power & Light Co. v. Simmons, 229 La. 165, 85 So.2d 251; Minneapolis-St. Paul Metropolitan Airports Commission v. Hedberg-Freidheim Co., 226 Minn. 282, 32 N.W.2d 569; Hazard Lewis Farms, Inc. v. State, 1 A.D.2d 923, 149 N.Y.S.2d 658; Moyle v. Salt Lake City, 111 Utah 201, 176 P.2d 882; Appalachian Electric Power Co. v. Gorman 191 Va. 344, 61 S.E.2d 33. The evidence was properly admitted.

Also the witness Schiflet, after testifying on direct examination as to his opinion of the reasonable market value of the land before and after the taking, and after testifying on cross-examination that he considered the 3 1/2 acres bordering the Jamestown Road for building purposes, was asked on re-direct examination his opinion as to what was the highest and best use of that particular part of the property. Over objection, he was allowed to answer "for building lots". Appellants contend that the highest and best use is not the criteria to be used in placing a value on condemned property unless such potential use is so reasonably probable or so reasonably immediate as to affect the reasonable market value of the land. That a portion of the land was adaptable to building lots, and that such use was so reasonably probable as to affect the market value is amply supported by petitioners' pleadings, and by the evidence. The objection was properly overruled.

Moreover, petitioners except to the issue submitted to the jury. In this connection "It is well settled that issues arise upon the pleadings only and not upon the evidential facts." Darroch v. Johnson, 250 N.C. 307, 108 S.E.2d 589, 592. "No exact formula is prescribed for the settlement of issues." Pruett v. Pruett, 247 N.C. 13, 100 S.E.2d 296, 302. "Issues submitted are sufficient when they present to the jury proper...

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16 cases
  • Department of Transp. v. M.M. Fowler, Inc.
    • United States
    • North Carolina Supreme Court
    • 15 Diciembre 2006
    ...considered in arriving at its market value." 257 N.C. at 432, 126 S.E.2d at 111 (emphasis added) (citing Williams v. State Highway Comm'n of N.C., 252 N.C. 514, 114 S.E.2d 340 (1960)). Kirkman instructs that using lost revenue evidence to inform market value is distinct from recovering lost......
  • Dept of Trans v. Joe C. Rowe et al
    • United States
    • North Carolina Court of Appeals
    • 18 Abril 2000
    ...N.C. 198, 79 S.E.2d 778 (1954); Robinson v. State Highway Commission, 249 N.C. 120, 105 S.E.2d 287 (1958); Williams v. State Highway Comm'n, 252 N.C. 514, 114 S.E.2d 340 (1960); Templeton v. State Highway Comm'n, 254 N.C. 337, 118 S.E.2d 918 (1961). But our Supreme Court has never addressed......
  • Department of Transp. v. Rowe
    • United States
    • North Carolina Court of Appeals
    • 20 Junio 2000
    ...N.C. 198, 79 S.E.2d 778 (1954); Robinson v. State Highway Commission, 249 N.C. 120, 105 S.E.2d 287 (1958); Williams v. State Highway Comm'n, 252 N.C. 514, 114 S.E.2d 340 (1960); Templeton v. State Highway Comm'n, 254 N.C. 337, 118 S.E.2d 918 (1961). But our Supreme Court has never addressed......
  • Smith v. Simpson, 454
    • United States
    • North Carolina Supreme Court
    • 11 Diciembre 1963
    ...did not note an exception to the form or submission of the issue. Issues arise upon the pleadings. Williams v. North Carolina State Highway Commission, 252 N.C. 514, 518, 114 S.E.2d 340. A reading of the record of the trial leads to the definite impression that in offering evidence and cros......
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