102 S.E. 414 | N.C. | 1920
This was a proceeding by plaintiff under sec. 8, ch. 714, Laws 1905, asking that a jury be appointed to assess damages caused to his land by the county taking 7/10 of an acre of land in the construction of a public road. The jury was duly appointed, and made its report allowing defendant $175 damages. Without waiting for the commissioners to take action, the plaintiff appealed to the Superior Court. At the trial in that court the jury awarded the plaintiff $225 damages, and he appealed to this Court. The witness Tyson had testified as to the damages to the plaintiff's land, and on cross-examination he was asked if he had claimed any damages for the road going through the witness's land, to which he answered: "I would have done so if I had thought it would have been of any use." The witness owned adjoining land, and the question was competent as tending to shake his testimony as to the damage the plaintiff had sustained. We cannot see that the plaintiff sustained any harm from the answer, which at most was merely irrelevant.
Another witness was asked on cross-examination: "What value is the little piece of land?" to which he replied, "I do not consider that little piece of much value to my father unless he could get more." While the answer may not have been very responsive, there was no motion to strike it out, and it does not appear that any harm accrued that would justify a new trial.
Exception 3. The court charged the jury: "If you find the plaintiff is damaged, you will not take into consideration the fact that his home is off the road, because the action was not brought by reason of his house being cut off of the road, but by reason of the highway commissioners taking this portion of the land through which the road passes." The plaintiff's evidence discloses that his house was not upon lot No. 4, or lot No. 1, but was on an entirely different tract of land situated on the north side of the old county road, as shown on the map. The plaintiff *243 still has the old county road to use as he did previously to laying out this road, except that he himself has built a tobacco barn across it, as shown on the map, and in that respect he can recover no damage by reason of laying out the new road. If he could, then any other person living four or five miles or further from the new road could contend that they were entitled to damages because the new road and was not constructed by their home. The county commissioners simply did not see fit to build a new road along the line of the old road by the plaintiff's residence, but the plaintiff still has that old road so far as he sees fit to use it.
The fourth exception is that the court directed the jury to allow the plaintiff: "What would be a fair compensation for his land, taking into consideration the value of his land immediately before, and the value of his land immediately after, and the difference in value would be the damages he has sustained by reason of the road running through his land." Sec. 8, ch. 714, Laws 1905, under which this proceeding was begun, provides: "Said jury, being duly sworn, in considering the question of damages, shall also take into consideration the benefits to the owner of said land, and if such benefits shall be considered equal to or greater than the damages sustained, then the jury shall so declare and report in writing its findings to the board of county commissioners for revision or confirmation."
In Lanier v. Greenville,
The counsel for the commissioners contend that under the language of this statute the county was entitled to have set off against the damages assessed not only the special benefits to the owner of the land, but the benefits which actually enhanced the market value of the property, although they are common to other property in the vicinity. We cannot consider this contention, for the defendants are not appealing, and the plaintiff cannot complain that the benefits set off were restricted to the special benefits as laid down in Lanier v. Greenville, supra. *244
Exception 5 is that the court charged the jury: "The defendants contend that they offered evidence that the plaintiff has not been damaged as much as $600; and that you should find that the special benefits have accrued to him in that this special piece of property is more valuable now than before the road was built; the defendant contends that it is a nice wide public road, and puts his land in contact with the public; for the people who want to get to the county-seat and that this ought to be taken into consideration, and the court charges you that if you find that a special benefit has accrued to this land by reason of this road being put there, then you might consider that in determining what damages he has sustained, if you find any special benefits have accrued to this land."
Exception 6 is to a charge of like nature. As already stated, these charges are in accordance with the general rule which has obtained in this State in the absence of legislation restricting or enlarging the nature of the benefits to be deducted, and the plaintiff cannot complain.
Exception 7 is to a like charge by the court: "As I said a moment ago, if you find any special benefit has accrued to the plaintiff by reason of the building of the road through his property, you can consider it in determining the amount of damages you may arrive at, but if no special benefit has accrued to him, and if the benefit he gets is common to adjacent landowners, then you will not consider that." This charge was correct under the general rule.
The last exception, except those purely formal, is to the following charge: "The jury will not take into consideration the fact that the plaintiff's house was left off the road, and is not now on the road; this proceeding is to procure damages for and on account of the taking of the land, part of those two lots which were necessary to build this road, and the fact that this house and home is left off the public road you will not take into consideration at all, but only take into consideration the damage by reason of the taking of the land from these two lots of land, and say what you find the damage to be."
This has already been discussed under the third exception. The county was under no contract with the plaintiff not to lay out a new public road, in order to make a new and shorter route needed for the public convenience. In doing this, the county did not cut off the plaintiff from the public road, upon which the plaintiff's house stood. The principle of public administration is the "greatest good for the greatest number," and a new, better, and shorter road being needed for the public convenience, the plaintiff could not complain that it was not built over the old route. The road on which this house stands remains where it was, and if the plaintiff does not use it, and has built a tobacco barn across it, as it appears, is because he finds it more convenient to get to the new road by a different route. *245
In view of the great increase in the mileage of public roads in construction, or in contemplation, and that neither the State nor the Federal Government will permit any part of their appropriations for roads to be used in payment for any part of damages for rights of way, it follows that all such damages fall upon the county alone, and it is a matter of great moment what method should be adopted in allowing deductions from such damages for benefits accruing to the landowner.
It seems that the general rule prevailing throughout this country is that laid down in Traction Co. v. Vance, 9 L.R.A. (N.S.), 781; S. c.,
The distinction seems to be that where the improvement is for private emolument, as a railroad or water power, or the like, being only a quasi- public corporation, the condemnation is more a matter of grace than of right, and hence either no deductions for benefits are usually allowed, or only those which are of special benefit to the owner, but where the property is taken solely for a public purpose, the public should be called upon to pay only the actual damages, after deducting all benefits, either special or general.
In 2 Lewis Em. Dom., secs. 687-689, the different methods are stated to be five in number, but, in fact, they can be reduced to three, i. e.:
1. Condemnations in which there are no deductions allowed at all for benefits.
2. Where deductions are only allowed for special benefits accruing to the owner.
3. Where deductions are allowed for benefits, both special and general.
This matter is discussed fully by Connor, J., in R. R. v. Platt Land,
The changes of the statute in this regard in North Carolina stated byJude Connor in R. R. v. Platt Land, supra, is more fully set out in the note to Traction Co. v. Vance, 9 L.R.A. (N.S.), at page 806. It appears therefrom that "the early rule in this State was that special benefits might be set off against the value of the land taken for public use, and against damages for the remainder; that this rule was abrogated by statute and afterwards restored by statute."
In Freedle v. R. R.,
This decision is followed by Hoke, J., in Bost v. Cabarrus,
Owing to the importance of the subject, and its full discussion in this case, we have traced the history of the rule. In the damages assessed, we find
No error.