Miller v. City of Asheville
16 S.E. 762
N.C.
1893
Check Treatment
Clauic, J.:

The first- exception of the defendant, which is to the testimony of 0. H. Miller in regard to the plan of the city, already in evidence without exception, is without merit.

The defendant having admitted that James M. Smith died seized in fee-simple of the land; that his will, which was in evidence without objection, had been construed in Miller ex-parle, 90 N. C., 625, and that the plaintiffs wTere the testator’s daughter and grandchildren, and having itself instituted this proceeding to condemn the land, was estopped to deny that the title to the land was in the plaintiffs or some of them. In what proportion the damages for the land should be divided among the plaintiffs did not concern the defendant. It had no right, therefore, to except to the order of reference made to that end by the Court after verdict. The verdict established the title in plaintiffs and the amount of damages the defendant should pajr. *767 it is true that it was held in the case cited that the real estate devised by Jame M. Smith could not be sold for partition. But that was between the parties themselves, and on the ground that the remainders being contingent, the parties entitled to share therein could not be ascertained. But that rule does not apply as between the sovereign, or the party to whom it- delegates the right of eminent domain, and those having an interest in the land — vested or contingent. When (as here) the property is taken under the right of eminent domain, the fund realized is substituted for the realty and is held subject to like charges and trusts, and when limited over on a contingent remainder it will be divided among the parties entitled upon the happening of the contingency in the same manner as the realty itself would have been if it had remained intact. If this were not so it would be easy as to the construction of railroads, the opening or widening of streets and in the numerous other instances which, in a progressive community, call for the exercise of the powers of ultimate sovereignty, to defeat the right of eminent domain, by simply limiting or settling-property upon a contingent remainder. It would hamper the exercise of the right if the remainderman could wait till some remote day when the damages would be enhanced by the rise in values. The jury having assessed the totality of the damages due by the defendant, and that it was due to the plaintiffs, the defendant, as above said, need not concern itself as to the division of the fund or the directions of the Court how the fund or any part thereof shall be held or divided. The requests from the defendant to charge, numbered three, four, five, six, seven, were properly refused. The charge substituted for the eighth prayer of defendant was proper.

We are of opinion, however, that there was error in instructing the jury, as requested by the plaintiffs, that the *768 benefits assessed must be only those “which are special to the owner, and not such as he shares in common with other persons.” To this the defendant excepted. The rule laid down by his Honor has been the settled ruling of this Court, but it was expressly altered as to all condemnation proceedings instituted in behalf of the defendant by section 16, ch. 185, Pr. Acts 1891. It is true this was enacted 28th February, 1891, after these proceedings were begun. But the verdict assessing the damages was rendered thereafter, at August Term, 1891. This is merely a change of remedy. Whether the defendant can reduce the damages by all the benefits accruing to the plaintiffs or only by those benefits special to the plaintiffs rests with the sovereign when it confers the exercise of the right of eminent domain. When, after proceedings begun, but before the trial, the Legislature struck out all right to any benefits as an offset, it was held valid. Railroad v. Hall, 67 Ill., 99. For the same reason the present act, which extends the assessment of benefits to all received by the land owner, instead of a restriction to the special benefits, is valid. All the land owner can claim is that his property shall not be taken for public use without compensation. Compensation is had when the balance is struck between the damages and benefits conferred on him by the act complained of. To .that and that alone he has a constitutional and vested right. The Legislature in conferring upon the corporation the exercise of the right of eminent domain can, in its discretion, require all the benefits or a specified part of them, or forbid any of them to be assessed as offsets against the damages. This is a matter which rests in its grace, in which neither party has a vested right, and as to which the Legislature can change its mind always before rights are settled and vested by a verdict and judgment.

*769 Tilia error in no way outers into or affects the verdict upon the first issue. Therefore, a partial now trial will be awarded as to the verdict upon the second issue only.

Error.