*1 COURT. SUPREME 200
Light Oo. v. Moss. and cases R., E., 802, 166 S. C., 675, 203 v. R. N. Hubbard ployer. agency fact competent prove is such evidence cited. Nor there acting was alleged agent or that the agent’s authority or of tbe scope Co., 211 Mfg. Parrish v. the time. employer for his principal 7, E., S. 817. C.,N. jury, that when the came however, court appears, tending agent to show recited inadvertently
evidence was been had previously The evidence then about his master’s business. thus to recite for this and it was error purpose as incompetent excluded where, in a number of cases It has been said charge. it in the has been issue, which court, material action to answer it without jury, opportunity before excluded, placed C., Wyont, trial. S. v. 218 N. necessitates a new way it, to meet Mill, C., 661, 212 N. Hosiery Smith v. 505, (2d), 473; S. E. Love, E., C., 32, 187 N. S. E., 83; S. S. far individual has been trial so as the
No error discovered defendant concerned. two conclusions, therefore, appellants: result
Opposite Harris, On appeal Lyles error.
No Queen City Company, On Coach appeal New trial. MOSS, IDA & MRS. NANTAHALA POWER LIGHT COMPANY and NORTON, C. & v. W. NANTAHALA LIGHT COMPANY POWER and ; DAVIS, Widow v. MRS. ETTA LIGHT COMPANY
NANTAHALA POWER & Wife, DAVIS; Wife, and J. DAVIS MAE W. N. D. DAVIS and EVA Wife, DAVIS; DAVIS; GLENN and LOUISE D. D. DAVIS LOUISE Wife, DAVIS; Wife, and L. H. CANNON DAVIS and MRS. GLENN DAVIS; DAVIS; CANNON; F. Mc WOOD S. MYRTLE ELIZABETH Trustee; LEDBETTER; ANGEL; CLURE; H. E. C. T. DR. EDGAR BUCHANAN, JR., Incompetent; BUCHANAN, MRS. M. Guardian WILSON, Incompetent; WILSON, N. MRS. Guardian J. EDDIE W. STEWART; STEWART, Administratrix, W. C. NOR ALVIN ALVIN DAVIS, TON; AND D. JOHN Widow; DAVIS, NANTAHALA ETTA & COMPANY v. MRS. POWER LIGHT Wife, DAVIS; Wife, J. W. DAVIS EVA MAE N. D. DAVIS Wife, DAVIS; DAVIS; GLENN DAVIS LOUISE D. D. LOUISE Wife, DAVIS; Wife, H. CANNON L. MRS. GLENN DAVIS DAVIS; DAVIS; CANNON; F. Mc S. MYRTLE WOOD ELIZABETH Trustee; LEDBETTER; CLURE; ANGEL, H. E. C. EDGAR T. DR. TERM, O.] *2 BUCHANAN, BUCHANAN, JR., Incompetent; MRS. MRS. MRS. Guardian M. WILSON, WILSON, Incompetent; EDDIE W. J. N. Guardian STEWART, ; STEWART, ALVIN ALVIN Administratrix Deceased STEWART; MARY ANN and JOHN D. DAVIS. 1941.)
(Filed October, 1. Eminent Domain 3—§ power company may proceedings riparian against A maintain owners to right condemn tbe to divert the waters of a stream such diversion integral part hydroelectric project. is an of its Domain 3.Eminent 9—§ compensation paid taking The measure of to of land or property, interest will price therein is the market value of the which is the bring by desires, obligated when offered for sale one who but is not sell, bought by desiring buy, necessity to of and is one to but not under the purchasing.
3. Same— determining In the market value of consideration need not be taking, confined to its condition and use at the time of the but the uses to property may applied reasonably which the ble, adapta- or for which it is potential to the extent that such uses affect its value at the time of taking, may be considered.
4. Same— assessing compensation taken, for land neither the value of the land integral part project, as an necessity of the taker’s nor the taker’s having part project the land as a of its should be considered. 5. Same —Held: Court in admitting relating erred evidence to benefits ac- cruing petitioner talcing charging from the and in thereon. respondents’ power Petitioner owns a dam above land and a house on respondents’ land, the stream below to the assess and diverts the water from the dam power compensation through proceeding house a tunnel. This was instituted to for the diversion of the water. The court admitted power plant, as to the location of length evidence the dam and of the tunnel, proportionate part by respondents, of the fall owned each of respondents’ the value of part land when considered as an essential of the development, charge whole Held,: jury. reviewed this evidence in its to the charge The admission of the evidence error, and the of the court is permitted consider, since was as compensation, elements of accruing taking, benefits respond- the value of integral part land when considered as an development, ents’ necessity acquiring petitioner’s project. right of diversion as a of its Appeal and Error 39 — Error in admission § evidence held not cured charge. proceeding erroneously In this condemnation the trial court admitted damages relating upon the issue of evidence accruing the benefits taking respondents’ from the and the value of lands when con- petitioner’s power project. as units of sidered admission Held: The error in the of the evidence was not cured a correct statement in the IN THE SUPEEME COUET. compensation, court of the rule for when the the admeasurement of modifying peti- portions charge emphasized
in tioner’s the error peti- prayers accruing instructions to benefits read that 6y expenditures tioner reason should not be considered. potential of land 7. Eminent Domain uses 9 —In for evidence § order competent, immediately probable to affect such uses must be so present market value of land. by petitioner right proceeding This was instituted to condemn the per- power Respondents project. divert waters of mitted to introduce lands stream for a were adjacent lands, together their with belonging petitioner, might lands in an inde- other than be united power respondents’ pendent project, the effect water but evidence was to present project no demand for additional and that there was merely potential possibility project. there of a market highest profitable Held: and most uses for While which the *3 likely needed, needed, reasonably adaptable near is future the properly potential considered the extent that uses land, present respond- present value of the in the affect the ents did not market case power show that the conversion of their land into another reasonably probable potential project so that demand use was reasonably present immediate as to affect the was so respondents’ market of land, potential of such evidence under the facts and speculative of this case and should circumstances or the have been excluded not to consider it. cautioned 8. Trial 29b—§ opinion particular An must be read connection with the facts of the decides, reading and therefore a decision to trial ease it the the great language caution to ascertain that court must exercise the used in to the facts in general applicable a statement of the law the the case decision issue, jury’s dissimilarity and should call the attention at general apply in order the statement in the facts of the law to the case issue. in the concurring J., result. Claekson, J.,
Appeal Alley, Term, from at May 1941, of Jacksost. by petitioner trial. New separate condemnation proceedings four instituted before
There are Court Jackson Superior County for the purpose clerk of the the to divert the waters of the fork of Tucka- right west condemning of the respondents from the lands various and for a right of seegee Eiver a over the tunnel lands Ida long respondent feet way for the of trial. purpose consolidated causes were The on a dam site west fork of Tuckaseegee owns The the lands of the several respondents. from It also owns Eiver upstream dam site for reservoir of land above the The body purposes. peti- a large on all the land both sides of the river also owns below the dam tioner of the distance respondents about one-half mile— to the property —a High known as Falls. Below the lands of including peti- what TEEM, O.]N.
Light Oo. v. Moss. thread running tioner eacb owns a tract land tbe respondent as follows: of the river stream, riparian the waters including rights own On W. Davis heirs (1) right-hand side down the J. going on feet acres known as of 450 tract, having frontage the Davis “little” 11,731 stream; Ida 372 acres with (2) respondent Moss owns river on frontage right-hand side; (3) feet the stream on the across contain- on the left-hand side W. Norton owns a tract respondent C. 525 acres the left-
ing fronting 4,726 feet; (4) next on approximately hand Davis side is situate the J. W. Davis heirs tract. Within the “big” “big” tract and on river & with a fronting Eeed Warren tract frontage 2,417 feet, “big” Davis belonging petitioner.
tract has feet Eeed & frontage 5,038 tract, water above the Warren tract, feet frontage 2,155 within of the Eeed & Warren boundary 3,201 feet & Warren front- approximately below the Eeed tract —its due to & age, tract, the location Eeed Warren into three being broken sections. established its power house down-stream a considerable
distance below the respondents and constructed a tunnel or power tube the dam the house to the water. This convey diverts all entering water the river above petitioner’s but other dam, waters the stream furnish water to entering the lands of respondents for all domestic and ordinary stock-raising purposes.
These several were instituted for proceedings the purpose of fixing compensation to several paid for the diversion of through such waters tunnel *4 instrumentality or extending tube dam from the site above the of property respondents the power plant considerably property. below
The the several jury answered issues submitted, fixing the amount of to be individual compensation paid respondents. From judgments petitioner appealed. thereon Moore, Stillwell, Harkins,
Dan K. Stillwell & and Van Winkle <& petitioner, appellant. Walton for ones, J &
Hayes Ward J ones Alley respondents, appellees. petitioner J. The has not taken does not seek take BaeNhill, of of part one of any any the respondents a of except right easement, for the tunnel which way passes across the land of the Ida Moss. seeks only respondent right divert the waters of Tuckaseegee passes along Eiver the boundary of line respective compensation and to have the to be respondents paid therefor fixed and that And as determined. conceded the property line of each re- to the thread.of extends the stream spondent each is a riparian owner COURT. SUPREME to so right affected the diversion of the waters of such stream. by is a proper proceedings. divert basis condemnation the cause that the court below petitioner complains permitted entitled respondents in are upon theory, part, be tried River on Tuckaseegee diversion of the waters of compensation on is, That of to the advantages thereby accruing petitioner. the basis from the resulting development of the enhanced value its basis offered as diverted. It contends that under the evidence the water to award permitted of the court the charge and the based on fall foot per of the value to the petitioner ratable share contentions in this respect properly Its development. the whole exceptions While the exceptions duly preserved. a series presented by thereby consider question are numerous we the one detail. discussing any exceptions without one presented testimony as to the location permitted give were Witnesses dam, plant, reservoir and the location its power of petitioner’s nature fall thereby created, and the total the relative of its tunnel length fall respondents, proportionate part lands location to the benefits relating accruing and other facts owned them permitted were then estimate the taking. They from the land when considered as essential part of respondents’ development. whole of the parcel in detail, reviewed this evidence the at calling the court its had to the fact the witnesses said: “That of the
tention tunnel making has enhanced the value of the river diversion and that he took this placing proposition, petitioner’s “in respondents’ property”; considering of value upon his estimate tracts as a figured he said he each one these proposition hydroelectric value, assuming that a would potential plant of considerable unit into what he con developed the whole would would developed, respondents’ water “he considered the power”; a great sider his units’*1; as one “he has made petitioner’s property, of the owners, on of a unit also connection with the basis estimate could not profitably practicably “that the petitioner”; as it now has without this power proposition or have proceed river and that he took this into consideration in placing diversion property”; “he arrived at respondents’ on the the estimate his value *5 all considering property, including the the respondents’ prop its value a unit”; “that property this petitioner’s property and the is erty of that and that the is unit, petitioner using now all of it part essential and has unit”; developed part “the the unit and is as one rest of the unit.” to the get now trying 205 1941. TEEM,
N. 0.] then, made The court called attention of the to the contentions the the based to by respondents upon the effect operate cannot without the to divert the water from right indis- lands of and that respondents acquisition right “is petitioner.” to pensable
The market value is which property yardstick by compensation for the land or and taking any interest therein is to be measured market is the which will it is property price bring value it when for desires, offered sale one who but is not and is obliged it, sell who is no bought by estimating one under it. necessity having all of value and all of which capabilities the uses to or for it adapted, it be which which affect its applied, value considered, the market are be and not in at merely the condition it is Lewis, and the use to which it is then 2 applied by the time the owner. 1228, Domain and (3d), cited;
Eminent numerous cases Brown Power v. Co., Greensboro, C., 140 Pemberton 208 181 333; 466, N. v. N. C., v. 218 258; Highway 438, Com. N. 11 E., Hartley, C., (2d), S. S. E. cited; Bonbright, Valuation of
314, Property, 411, eases Vol. 1, p. ante, seq.; Light Carringer, 57, et Co. v. Hydro-Electric cases cited. Ford Neely, Co 13 Fed. (2d), 361; v. Anno. 75 A. L. 10 R., 857; R. C. 128. L.,
That this is the true rule be followed ascertaining compen- sation due seems be conceded. The application is to rule what be excluded ascertaining the market hub of reasonable value the controversy. just compensation requires rule merely the owner for shall what taken from him. paid taken “It with deals land, question not with tracts of what is, has owner
persons, gained?” has taker Boston not, lost? what Chamber Commerce Boston, 54 L. S., 189, Ed., v. 217 U. 725. The value condemnor his use is to be particular considered. Power Co. 353; S. United Hayes, C., 104, E., States v. Chandler- Co., S., 53, Ed., Dunbar W. P. 57 L. 1063, cases U. S. cited; Hayman, 115 Fed. (2d), taker of a land combined with piece Value parcels of or guide is not the measure the compensation public v. U. S., 246, owner Olson 1236, is entitled. L. Ed., Com. v. Highway Hartley, supra. cases cited. “The it taking is not the test of what party land taken to the should paid, land is should fact that the desired needed for nor a particular when is taken that use.” 18 use be considered public Jur., Am. to the condemnor nor Neither the value his necessity can taken fixing Jur., the value. Am. 882;
into consideration McGovern *6 COURT. 206 SUPREME [22d v. Moss. Co., York, Water 363, v. 229 57 L. Wadsworth v. Ed., 1228; New 917; Pac., San v. 106; Diego (Cal.), Land Co. Neale Pa., Buckles, 206, State, Y., Okla., v. 189 N. Kirk Thompson 590; v. Pac., domain take eminent underlying authority by the to very purpose Tbe from to who is of the the taker necessity the owner aware prevent demanding price most of and from the highest the such making necessity by Hence values created necessity impels. “holdup” “strategic” not U. S. v. Chandler- taker is the true criterion. necessity the the Y., Co., Boston supra; P. Cham supra; Dunbar W. McGovern Boston, S., supra; Highway ber Commerce v. Olson v. U. supra; Hartley, Com. v. supra. that court to admit the indicated evi- follows it was error for the in the to same the for its consideration jury dence and submit the charge. that admission evi- take the the of this respondents position
But the by charge if was rendered harmless the the court. dence, error, in a charge it conceded that the court of its this connection in the by jury stated the rule to be followed the ascertainment correctly respondents. awarded several amounts the sufficient to from minds any this would be erase Whether event which must have been made admission impression by of the evidence, by judge, of the thereof the statement recapitulation subject based thereon is to serious debate. This we the contentions for the reason that the went and, need not now decide court further error to such an our extent as emphasized appear make opinion, weight must consideration to given have the evidence thereto at its charge arriving verdict, and to the so as have been awarded make it manifest compensation from the accruing petitioner benefits diversion of the Greensboro, Pemberton supra. in question. waters from arising To situation the admission this testimony meet the its thereto the tendered a exceptions number of preserve the court to instruction, requesting in sub- jury, prayers enhanced value petitioner resulting stance, diversion, value the company condemning of its project, it, accruing enhancement benefits diverted water, and the value used connec- dam, power project reservoir the petitioner, tion with the were modified The court each of these considered. to be instructions reason of “accruing by terms as its “by adding expenditures”; “caused its expenditures” expenditures,” or “arising reason of expenditures.” from its TERM,
N. 0.]
Light -.Co. *7 instructions, modifications were unwarranted. The as given, viewed Avith connection the evidence submitted and the conten- tions stated, left it for consider clearly open such elements— except as increased value by expenditures —in ascertaining compensation paid. be
Other for exceptions directed to the offered are admission evidence purpose that with showing by uniting the lands of adjacent lands, other than that belonging petitioner, independ- ent water was available. power project Related exceptions are court in thereto. one unnecessary discuss these at If exceptions length. as testified, witness “it is on speculation, anything proceeded like else—I assumption some method the on property owners both sides might the street be combined some so that a dam way could built in a similar manner . . a there isn’t market available at is a minute, there of a potential possibility market,” the evidence it speculative excluded, nature and should have been or should have been cautioned not to consider it.
Elements affecting upon value that dependent evidence combina- which, tions of occurrences while Avithinthe not realm possibility, are fairly shown be reasonably probable, should be excluded from consid- eration, for that Avouldbe to allow more speculation conjecture to a guide become the ascertainment value—a to be condemned thing in business as Avell in judicial transactions ascertainment of truth. States, Lancaster,
Olson v. supra; Ayden United v. 150 C., 197 N. 556, E., S.
Before valuations can be considered as a damages basis awarding under theory that the numerous of land types to- brought and used as tract in a gether one it development, must be shown is a
there reasonable of the unification of probability land the tracts of involved and that it is feasible practicable to combine them in the one either condemnation ownership proceedings or by agreement, should not be submitted to the jury under any circum- stances when appears unity impractical or impossible. R. v. 161 S. Gahagan, C., 190, E.,
R. N. 76 696. See also Central Power Stone, 139 416, E., 565; Co. v. 77 S. Ga., Chicago, Q. Burlington & City Chicago, R. Co. 166 U. 41 S., 226, v. L. Ed., 979; R. Stockton 275 Eichman Ellingwood (Cal.), Pac., 228; v. v. Oklahoma City v. 239 Pac., City 202 Y. 184; Sage, 57, U. 60 (Okla.), S., Ed., L. Seekatz, Irrig. Co. v. 237 143; Valley Fed., 805; Medina Idaho Farm 696; Devel. Brackett 213 (Idaho), Pac., Co. v. Emmons v. Utilities Atl., Power 141 58 A. L. H.), 65, R., 788; Co. (N. Gilmore v. Central 145 Atl., Maine Power Co. (Me.), SUPEEME COURT.
Ligi-it Co. v. Moss. use for and most Conversely, highest profitable near in the likely reasonably and needed to be needed adaptable full considered, is to not as measure of value but extent future affected the market that such demand such use prospect v. Olson riparian rights. were of their deprived the time respondents Patterson, 403, S., S., Miss. & R. Boom supra; U. River Co. Com., 291 Service Clark's Co. v. Public Ed., 206; Ferry Bridge L. 707, L. Eminent Domain sec. 227, Ed., 767; Lewis, (3d), 671; Domain see. U. S. Nichols, (2d), 220, p. Eminent p. 1233; Powelson, profitable 118 Fed. 79. The fact that the most (2d), does can in combination with other lands only land be made parcel from consideration if possibility exclude that use necessarily uses” reason- and the “other are so reasonably combination is so sufficient *8 Y. City Sage, supra; market value. N. v. affect ably probable Powelson, S., the In supra; supra. making v. U. United States Olson account all of market value there should be taken into consid- estimate forward and fairly might brought reasonably given erations that at Olson buyer private the seller and sale. weight by substantial States, S., U. Corp. v. United supra; Brooks-Scanlon Co., 880; supra. Emmons v. Power Jur., Am. Ed., 934; L. trial, in evidence offered ruling upon admissibility At the next land and showing availability adaptability the purpose than those which it is now sub- being for uses other recognized trial should be jected judge guided by generally these principles. in its charge that the court below complains likewise The Co., supra, in Brown v. Power and from the extensively opinions
read Powelson, essentially supra, States v. in which the facts were United case, cases, and supra, omitting and from the Olson different, general principles limited'the reading qualified statements in those cases. enunciated of a used an right judge adopt language
While the appellate to the in case properly applicable in its when facts opinions, court caution should in so cannot be extreme be exercised trial, gainsaid, on doing. set within law is the framework of opinion discussed if often, extremely case it is not generally,
facts of that particular law so that it will transplant grow healthily upon another difficult from an without opinion attention merely by reading calling of facts set in the facts and the law to dissimilarity applying the evidence in to the at issue. the cause to ascertain to what is difficult extent the facts in the
“Especially Not language employed. binding upon are infrequently ease FALL TEEM, N. 0.]
Light Oo. with, They own applicability. not commensurate their statements are they in truth universalizing principle read like statements some to the Considerable something peculiar intended to case. express the language in so idea that expressing difficulty always experienced Brumbaugh, just no and no than what is intended.” more less implies mind- should be ever judge Legal Eeasoning Briefing, p. justice, “a . draws peculiar quality ful decision . and conditions of particular from the facts profoundness
soundness adjudicate.” 172. “It Ibicl., p. the case which it has assumed its context is to be apt wrenched from say language platitude held that their language misconstrued. have repeatedly Courts facts of the case which must be read connection with the opinions known to all. The is, be, used. language ought This how un- utterly meaningless, completely is to find how surprising thing opinion of an court can be when taken understandable, language 78-9. Advocacy, pp. of its setting.” Walter, Brief-Writing out dual part least, law is transplanting due, This difficulty Its function to furnish the judicial opinion. primary nature ease; of the instant its secon- disposition rationale the decision of general legal is the dary exposition prin- incidental-—-function —and general, becomes so blended with the particular each case ciples. must indeed definitely universal, so that he specific who undertakes to that which is a deft and craftsman excise expert general particular law. is this with the danger coloring
general reading portions of extensive dangerous which makes so When that able decided cases. we realize opinions previously *9 as extent perplexed universality are sometimes lawyers in how much apparent enunciated more cases, principles apparently in the indis- law, untrained are to transfer laymen, likely must be that factually different the case bar cases to at criminately principles attention by impartial been called to their when those have principles Durham, Co., Peay C., Ins. S. who the case. judge trying is Life 33, State 194 S. Highway Dept., C., Milhous v. E., 199; 193 S. 78, E. (2d), 83 S. cases, supra, Brown and in the Powelson facts in are substan- case, on record. Olson from presented different those tially expressions materially general used qualified the Court supra, in and caution should be exercised applying Care discussed. principles in this in those facts cause. law as stated cases in the record which stressed with exceptions some There are thus not presented may again arise. questions force reason. from thereof.
Hence, discussion we refrain entitled to a stated the is For the reasons New trial. SUPREME COURT.
Light Co. v. Moss. J., in concurring result: Tbe of law principle governing ClaeksoN, tbis is States, case stated as in follows S., McCandless v. United 298 U. 343: “Tbe is well rule settled in tbat, condemnation most cases, tbe profitable use to wbicb tbe land can probably reasonably be in the put near be shown and may considered as market bearing upon tbe future value; tbe fact tbat sucb use can be made connection ivith only other lands does not necessarily exclude it the possi- if bility is connection reasonably market value. sufficient affect States, Olson v. United S., (255-6), 78 L. 1244.” Ed., (Ital- ics mine). States,
In tbe case of Olson v.
Butler,
United
supra, Mr. Justice
speak-
ing
Court,
tbe
248:
said,
page
“The only substantial
question
on
wbetber,
tbe facts
disclosed
tbe record and others of wbicb judicial
may
taken,
notice
be
actual
tbe
use and special
adaptability
petition-
ers’ sborelands for
flowage
tbe
and-
storage water, tbat inter alia will
be available for tbe generation of power, may be taken into consideration
in ascertaining
just
tbe
compensation to wbicb petitioners are entitled
.
.
.
(p. 255).
Just compensation includes all
elements
value tbat
inhere
tbe
but it does not
exceed market value
deter-
fairly
mined.
sum
Tbe
required
paid tbe owner does not depend
tbe
upon
uses wbicb be has devoted bis land but is to be arrived at
just
upon
consideration of all tbe uses for wbicb it is suitable. Tbe
highest
„tbe
most profitable use for wbicb
property is adaptable and needed or
likely to be needed
tbe reasonably near future
tois
not
considered,
necessarily
value,
tbe measure
but to tbe full extent tbat
pros-
tbe
pect
demand
sucb use affects tbe market value while tbe .
.
held.
privately
(citing authorities).
Tbe fact tbat
most
tbe
of a
profitable use
can be
parcel
only
made
combination with other
lands does not
tbat
necessarily exclude
use from consideration if tbe
of combination is
possibility
reasonably sufficient to affect tbe market
Nor
value.
does tbe fact tbat it
being
acquired by eminent
domain
consideration of
negative
availability for
tbe public serv-
York
Sage,
ice. New
57 (61), (
each item of that value be deemed to the sum property may be all for itthat circumstances, could been obtained considering have amount in all arrived at fair is, probability by that would have been desiring between owner to sell and a negotiations willing purchaser all In that should be taken into account buy. making estimate there that forward and be fairly might brought reasonably considerations be Brooks-Scanlon weight bargaining. Corp. substantial v. given States, S., Ed., Ct., United 106 L. 44 S. (124), (68 934, 941, affecting of all light The determination is be made facts 471). market value that are shown the evidence taken in connection by general notoriety require
with those as not to proof.” I think is decision, directly point, The most recent is the Powelson, v. of United States Fed. was an (2d), case This Parker. from this written from the opinion circuit, by Judge Quoting Powelson Parker 84: Judge says, at “The fact that the most opinion, p. of a in combination
profitable parcel only use can be made with other lands does not exclude that if necessarily of combination is sufficient to affect market value. possibility reasonably or is being acquired Nor does the fact that eminent domain by consideration of for use negative availability service. public York Sage, S., (61). It is common knowledge New having others public corporations power frequently service or for tracts held in potential competitors, only single actual owner rights way, locations, but also for sites other areas ship requiring held parcels by the union of numerous different owners. And, demand by prospective purchasers extent that or condemnors probable it is to taken into account. Boom value, affects market Co. v. Patter son, ubi from Olson v. U. supra,” citing quoting supra. Carolina the principle North above enumerated is stated in Brown Co., Power and R. C., 336, Gahagan, R. v. C.,N. case,
In the Brown it is written: supra, pp. 341-345, “It is well settled when, purpose meeting providing neces- public the citizen is to sell his or sity, compelled permit it to sub- jected permanent burden, he is entitled temporary way to its actual market value. Lewis on compensation, Em. Domain, sec. arises not so much difficulty fixing
478. The the standard of the ascertaining what elements factors right, may be shown in Certainly standard. where applying compulsory process and for invades takes the public good the State of its citizens, *11 SUPREME COURT. in of its in to it should highest prerogative the exercise him to that effect. compensation. highest to authorities are pay full when it is bring 'The market value is the which it will property price for and is obliged it, offered sale one who desires but is not to sell In its estimating who is under no it. bought by necessity having one it all the and all uses to which capabilities property value or for and not may which it is be considered may applied adapted in then the condition it is at the time the use to which it is merely Field, Em. in Dom., supra. the owner.’ Lewis Mr. Justice applied by Patterson, Boom 'In S., 403, Co. v. value says: determining the of land for to appropriated public purposes, same considerations are in a between in regarded property as sale private parties. in market, such cases must be what is the worth quiry property with uses to merely viewed reference which it is at the time but with reference to the uses to which it is applied, plainly adapted; is to what is it worth from uses. say, its valuable availability is not be deemed worthless because the owner allows it to Property go waste, regarded valueless because he is it to put unable it. may use. Others be able to use Its capability being made thus it a market value which gives available can be readily estimated.’ Woodruff, 49 Ry. Ark., L. R. Junction Am. St. (4 Rep., 51), it market 'Since, then, said: value is the true criterion of damages, we market ? are led to is the The word inquire conveys market —what value, idea of and the market it would selling seem to follow, is value. It is which an selling price article will bring offered It is highest sale the market. which price those having occasion to buy willing ability pay.’ Referring to testimony which the take range ascertaining value, the market 'As a says: general guide the Court which range the testimony think assume, should he allowed we it safe to say that the landowner state, should be allowed to and have his witnesses state, fact con every which he would cerning property naturally be disposed to adduce if place advantageous light order he were attempting nego t.o of it to a individual. On private tiate a sale the other hand, for the information counsel, and the opposing the jury, should he every touching to make inquiry allowed which one about to it to his interest to make.’ 'If a would feel tract of buy which the whole use, public possesses special or a is taken value to the owner, by money, can he measured he is entitled to have that value con of compensation estimate and damages.’ sidered 15 Cyc., 724; . . Lim., secs. 567-8. (p. 345). Const. Cooley The rule is thus Dom., Mr. Lewis Em. : (Lewis supra) stated by 'The market value of for any includes its value use to which it may he put. If, by TERM, O.] Light Co. v. Moss.
reason of its natural or its artificial surroundings, advantages, or its improvements, character, intrinsic it is to some peculiarly adapted *12 use, all which particular adaptability the circumstances make this up shown and may be the fact taken into consid- adaption may be in eration hold estimating compensation. the Some the authorities that its for a particular value but proved, proper inquiry the in is, what is its market value of any view use to which it bemay applied ” and of all the uses to which it is adapted.’ Arnold Yanderhoof, H. a civil engineer for who had wide years, in experience hydroelectric testified for developments, in respondents regard to the use connected with other lands sufficient to submitted “It jury: my opinion it would it, be feasible to do practical. power facilities are not great enough country the the de- mand.” material I vice, think, the case is the admission of follow- the
ing and questions answers, elicited on part the from their “Q. witness Yanderhoof: I Now, will ask you question: this Mr. it is
Yanderhoof, alleged the petition the Nantahala & Light Power and Company, also these landowners admit it in their answer, that the diversion of this river their through and building tunnel and are essential in order necessary for the Nantahala & Power Light Company develop proposition, that is alleged admitted.
I wish would whether or you not, state your opinion, the Nantahala & Power Light Company could probably profitably develop oper- its project ate without the diversion of the River Tuckaseegee under the mountain away these landowners’ property? (Petitioner ob- I jects overruled—exception.) Ans.: am of opinion, without mak- — a it, careful ing study the Nantahala Power & Light Company could at the base of their develop power dam, but without diverting water from this stream. The head available would greatly reduced and, therefore, power which could be developed would be greatly Q. reduced. Then in forming your opinion as to the market value of these landowners’ property you took into consideration in giving that it larger figure ivas part parcel hydroelectric this develop- Q. ment? (Petitioner I objects overruled'—exception.) Ans.: did. — And in making your calculations and figures when you considered it and treated it as it you say be, should as a parcel of larger development, you placed higher the two on it? (Petitioner Ans.: objects overruled—exception.) Yes, sir.” There was other evi- — import objected dence similar to.
In the court below based on incompetent this evidence, is said: “On the re-direct examination he said substance it would be an advisable proposition build a dam on the respondents’ property IN THE COURT. SUPREME
Stewart v. Cart. power demand for electric diverted, before water was his not made says much this than He he has greater supply. time would place most figures dam; practicable under the that the plant would be below dam and at the southern end on the 400 foot has his give fall; over that he made estimate something j of a in connection owners, basis unit and also with the or have profitably practically proceed could without diversion of as it now has power proposition on the into his value placing river that he took this respondents’ property.” Lancaster, with Ayden C., (559), quotes this Court from the case of U. S. v. Chandler-Dunbar
approval following language ., 1063: Co value should be S., 53, Ed., 57 Law. “The to the loss the proceedings fixed as date with reference in its and situation at considering owner condition sustains, *13 and not as for which it purpose time is taken enhanced taken.”
I think in evidence was not so erased incompetent minds render an they impartial unpreju- could After deliberated until morn- following dicial had verdict. I think further instructions. these instructions did ing they requested incompetent not baneful effect of this evidence. eliminate the to indicate that nothing property owners, There the evidence these petitioner, just land taken wanted more than anything whose no they were to “hold seeking up” There compensation. with in phases or force values. Some dealt “strategic” prejudicial main I think were not so to merit the serious opinion judge trying them. The was learned in the given case of this seemed to be familiar with authori- law and the trial cause to the case. subject gave study tried, ties and the The case was well varied attitudes record (the in so contains long pages) but best of trial happen judges. will sometimes casualties C. CARY and Wife, v. FRANCIS BETTY BERRY STEWART KANSAS CARY, ELLIS C. SOPER LARRY SOPER. Wife, 1941.) (Filed October, Ejectment 9— § recovery rely plaintiff of real action for must in an Wliile upon title, strength upon his own of that weakness defendant, plaintiff show he and defendant claim under a com- plaintiff has a better and that title from of title that source. mon source