Yancey v. North Carolina State Highway and Public Works Commission
| Decision Date | 08 April 1942 |
| Docket Number | 167. |
| Parties | YANCEY et al. v. NORTH CAROLINA STATE HIGHWAY AND PUBLIC WORKS COMMISSION. |
| Court | North Carolina Supreme Court |
Special proceeding to recover compensation for lands taken and easements imposed in areas of Blue Ridge Parkway.
On 28 April, 1937, the State Highway and Public Works Commission pursuant to the law as set out in Section 3846(bb) Michie's Code of 1939, appropriated certain lands and easements situate in McDowell and Mitchell Counties belonging to the petitioners, and conveyed same to the United States Government for use in the construction of the Blue Ridge Parkway. The lands appropriated consisted of two tracts, used in the cultivation of orchards consisting of a large number of apple trees.
The petitioners harvested the apple crops on the lands for the years 1937 and 1938, but subsequently they have not had the fruit from any of the trees on the lands taken in fee simple.
Upon issues joined, the case was tried at the December Special Term, 1941, McDowell Superior Court, and resulted in the following verdict being rendered by the jury:
Upon the coming in of the verdict the petitioners tendered judgment for the amount named in the verdict, "with interest from April 28, 1937". The court declined to sign the judgment as tendered, because of the provision relating to interest (exception by petitioners), and then "on motion of *** attorneys for the petitioners", entered judgment on the verdict as rendered.
The matter of interest had been the subject of debate before the jury. The petitioners requested the court to instruct the jury to award interest on the verdict from April 28, 1937, or, in the alternative, to instruct them that, in their discretion, they might add interest on the award from said date. Both or these requests were refused.
The court instructed the jury: "The amount of compensation *** has not been ascertained even to this time, and will not be ascertained until your verdict; therefore, under the law, it does not bear interest". There was no exception to the charge as given, and none to the refusal to charge as requested.
The petitioners appeal, assigning error in the court's refusal to allow interest on the verdict as a matter of right.
Proctor & Dameron, of Marion, and Ehringhaus & Ehringhaus, of Raleigh, for petitioners, appellants.
Charles Ross, of Raleigh, Ernest A. Gardner, of Shelby, and D. F. Giles, of Marion, for Highway Commission, appellee.
The question for decision is whether the petitioners, in the circumstances here disclosed, are entitled, as a matter of law, to interest on the compensation fixed by the jury from the date of the original appropriation. The record points to a negative answer.
In the first place, it will be noted from the issue submitted to the jury that the verdict embraces not only indemnity for the lands taken and easements imposed, but also damages for injury to the remainder of the lands. State Highway Comm. v. Hartley, 218 N.C. 438, 11 S.E.2d 314; Nantahala Power & Light Co. v. Moss, 220 N.C. 200, 17 S.E.2d 10; State v. Suncrest Lumber Co., 199 N.C. 199, 154 S.E. 72. Of course, the damages to the remainder of the lands were unliquidated at the time of the taking. Bond v. Pickett Cotton Mills, 166 N.C. 20, 81 S.E. 936. Then, too, the value of the lands taken was subject to be offset by general and special benefits, if any, accruing to the petitioners from the construction of the Parkway. Wade v. State Highway Comm., 188 N.C. 210, 124 S.E. 193. These were likewise unliquidated at the time, as was also the claim of the petitioners for compensation. Raleigh, C. & S. R. R. v. Mecklenburg Mfg. Co., 166 N.C. 168, 82 S.E. 5, L.R.A.1916A, 1079. Moreover, it will be observed the issues are couched in the present tense, and they speak as of the trial term.
Secondly, it appears that while the lands were appropriated on 28 April, 1937, by the filing of maps outlining the appropriated areas, etc., the petitioners were permitted to harvest the crops on the lands for the years 1937 and 1938. Thus, the actual surrender or deprivation of possession was delayed beyond the date of appropriation. Durham v. Davis, 171 N.C. 305, 88 S.E. 433.
Thirdly, there is no challenge to the validity of the trial, and none to the correctness of the verdict. The petitioners are content with what the jury has done and with the instructions given by the court. For present purposes, therefore, they are deemed to be correct. Howell v. Seaboard Air Line R. R., 186 N.C. 239, 119 S.E. 198; Rawls & Tingle v. Norfolk Southern R. R., 172 N.C. 211, 90 S.E. 116; State v. Johnson, 193 N.C. 701, 138 S.E. 19. But the demand for interest after verdict is at variance with the judge's instruction to the jury to which no exception has been preserved. Thus, to concede the correctness of the charge would seem to forestall a denial of its effect. Ex parte Steele, 220 N.C. 685, 18 S.E.2d 132; Cameron v. McDonald, 216 N.C. 712, 6 S.E.2d 497. Objections not insisted upon are waived. Dixon v. Osborne, 201 N.C. 489, 160 S.E. 579; McDowell v. J. S. Kent Co., 153 N.C. 555, 69 S.E. 626. Clearly, if the charge be correct, and it is not challenged, the petitioners have no ground for complaint. This singularizes the present case and differentiates it from others cited or examined.
Let us test it in another way. Supposing the jury had...
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