Opinion
(Filed 8 November, 1939.)
Appeal and Error § 38 — When the Supreme Court is evenly divided in opinion, one Justice not sitting, the judgment will be affirmed.
In this proceeding in eminent domain to assess damages for lands and easements over adjacent lands taken for the establishment of the Blue Ridge Parkway, and for damages to contiguous lands resulting from such taking, less special and general benefits resulting to the remaining lands of petitioner, the Supreme Court being evenly divided in opinion as to whether error was committed on the trial of the issue, one Justice not sitting, the judgment of the lower court is affirmed without becoming a precedent.
APPEAL by defendant from Warlick, J., at March Term, 1939, of MITCHELL.
J. C. B. Ehringhaus, G. T. Carswell, McBee McBee, W. C. Berry, J. W. Ragland, M. L. Edwards, Fred Hamrick, and Taliaferro Clarkson for petitioner, appellee.
Charles Ross, Charles Hutchins, and George L. Greene for defendant, appellant.
The prevailing opinion written by SCHENCK, J., with DEVIN and SEAWELL, JJ., joining therein.
Dissenting opinion written by STACY, C. J., with BARNHILL and WINBORNE, JJ., joining therein.
CLARKSON, J., not sitting.
This is an action commenced by filing a petition before the clerk of the Superior Court of Mitchell County to recover compensation for the taking of lands and easements in lands of the petitioner by the defendant in Mitchell and McDowell counties for the construction of the Blue Ridge Parkway by virtue of chapter 2, Public Laws 1935; chapter 42, Public Laws 1937; and chapter 33 (Eminent Domain), Consolidated Statutes.
There was an appeal from the report of the commissioners appointed by the clerk to the Superior Court at term and the cause was there tried and the following verdict rendered, to wit:
"1. What sum, if any, is petitioner entitled to recover of the defendant for the appropriation of and damage to lands of the petitioner described in the petition, over and above all general and special benefits accruing to petitioner's lands by reason of the construction of the parkway? Answer: `$25,000.'"
From judgment predicated on the verdict, the defendant appealed to the Supreme Court, assigning errors.
The first exceptive assignment of error is to the following question and answer propounded to and made by the petitioner's witness, Heriot Clarkson, "Q. Tell the jury whether there is any reservation by the Highway Commission of North Carolina, or any division in it that you ever read which reserved or which required an exist from or entrance to the parkway from one end of the Little Switzerland property to the other? A. No, there is not." This assignment cannot be sustained. The answer of the witness is not a contradiction of the deed from the State of North Carolina to the United States, but is in accord with such deed. If it be conceded that there was originally error in the interrogatory and answer, such error was rendered harmless by the introduction of the deed referred to by both petitioner and defendant, which deed spoke for itself as to its provisions.
The second exceptive assignment of error was to a question propounded to the witness Clarkson, and which was never answered. The question, though permitted, cannot be held for error when not answered. It is a nullity.
The third exceptive assignment of error is to the following question and answer propounded to and made by the petitioner's witness, Heriot Clarkson, to wit: "Q. Just assuming that the regulations do not permit one to either enter or exit from the parkway except on the right-hand side, just assuming that the regulations require an entrance and exit on the right-hand side, where one is traveling and wishes to get off, is there any way to get off of the highway? A. Of course, if you are not permitted to get off, you cannot get off." This question and answer was no more than a harmless comment upon the obvious, and is in no way prejudicial to the appellant.
The fourth exceptive assignment of error is to the following question and answer propounded to and made by the petitioner's witness Clarkson, to wit: "Q. But don't you know that under the laws of the United States the Secretary of the Interior has no right to make an exception? A. I don't know that." The answer given to the question rendered it harmless.
The fifth exceptive assignment of error is to the following question and answer propounded to and made by the defendant's witness Hennesee, on cross-examination, to wit: "Q. What do you say as to the effect that would have on the property where the only access to this property would be a road with a fee simple title and easement to the United States Government, in which there is no restriction in the deed to make that road a permanent access to the property? A. Well, if there was no road whatsoever, and if it was closed up, unquestionably it would damage it if the road was closed up." This question was clearly competent to test the witness' knowledge of the value of the lands involved, especially in view of his testimony in chief to the effect that the benefits to the lands would depend upon the road.
The sixth and seventh exceptive assignments of error are to the following questions and answers propounded to and made by the defendant's witness Stikeleather, on cross-examination, to wit: "Q. As a man interested in real estate and its sale and development, do you think that a man who was a prospective buyer would be affected as to his purchase, if his right of access and egress was cut off and there was just a mere possibility that he would have that right? A. I think that a man's ingress, egress and regress to his property would have a great deal to do with its value. Q. Do you think a man would want to purchase a lot if there was no permanent outlet, or what outlet there was was subject to revocation? A. No, I would not buy it as readily under those circumstances."
The witness had testified on direct examination, that if he owned the Switzerland Company's property he "would prefer to have it (the parkway) on rather than to miss it." This rendered the questions assailed by the exceptions competent to test the knowledge of the witness of the subject concerning which he had testified.
The eighth, ninth and tenth exceptive assignments of error relate to contentions and allegations stated by the judge in the charge. These exceptions are untenable, since they were not called to the attention of the court at the time in order to afford an opportunity to correct them if in error. Walker v. Burt, 182 N.C. 325; S. v. Johnson, 193 N.C. 701; S. v. Herndon, 211 N.C. 123.
The eleventh exceptive assignment of error is to the following excerpt from the charge, to wit: ". . . and thereafter, gentlemen of the jury, on March 4, 1938, the petitioner says and contends that you should find from the evidence that there was conveyed to the Federal Government in fee simple deed to land embraced within the 76.7 of the right of way taken under the condemnation, and easements to the remaining 12.12, making a total of 88.33 that was conveyed, which, as a matter of law, gentlemen of the jury, I instruct you, was a passing out of the State of North Carolina of the title by way of easements and fee simple to the property condemned, and which immediately upon its delivery vested in the Government of the United States the title to that land which prior thereto was in, without dispute, the Little Switzerland Company, a corporation." This is a correct statement of applicable law. The deed from the defendant to the United States both in fact and in law did "pass title" to the United States for lands formerly owned by the petitioner.
The twelfth exceptive assignment of error is to an excerpt from the charge for which no reason is given in the brief of the appellant except that it does not comply with C. S., 564, but does not state wherein it fails to so comply, under which circumstances the exception is untenable. Davis v. Keen, 142 N.C. 496; Jackson v. Lumber Co., 158 N.C. 317.
The thirteenth exceptive assignment of error is to the following excerpt from the charge, to wit: "An easement, gentlemen of the jury, has been defined as a liberty, privilege or advantage in the land, without profit, existing distinct from the ownership of the soil — (as in fee simple). An easement is the right which one person has to use the land of another for a specific purpose." This definition of an easement is in accord with Thomas v. Morris, 190 N.C. 244, and Davis v. Robinson, 189 N.C. 589, and the assignment cannot be sustained.
The fourteenth exceptive assignment of error is to the following excerpt from the charge, to wit: "Therefore, gentlemen of the jury, in this case I instruct you that in arriving at the amount of compensation the petitioner, the Little Switzerland Company, would be entitled to receive, if any, or ought to receive, if any, your general rule is to estimate the value of the land actually taken, in fee simple and by way of easements thereon, and the damage, if any, to the remainder of the petitioner's boundary or tract of land by reason of the location and construction of the parkway, and from such sum or sums there should be taken as a counterclaim or set-off or offset or reduction any benefits, general or special, which the petitioner has sustained or received by reason of the addition to the value, if any, of the remainder of the boundary or tract of land known as Little Switzerland, and owned by the Little Switzerland Company, by reason of the general or special advantages thereto." This charge is in accord with Bailey v. Highway Commission, 214 N.C. 278, and the exception is therefore untenable.
The fifteenth and sixteenth exceptive assignments of error are to the following excerpts from the charge, to wit: "Gentlemen of the jury, there has been introduced in evidence in this case a deed from the State of North Carolina to the United States Government conveying the premises described therein and in said deed certain reservations were made. I charge you that no evidence has been offered in this case of any conveyance or reconveyance, either to the State of North Carolina or its citizens, of any easements or rights in the property of acquired by any deed or instrument sufficient in law to reinvest in the State or in any of its citizens any rights or easements which were not reserved in the deed," and "I further charge you that under the laws of the United States, the Secretary of the Interior has only a limited right to grant concessions or make leases for a limited time, and that under said law there is no authority to grant a permanent right, privilege or easement which could only be authorized by an act of Congress." These are correct statements of the evidence and of the law, and the exceptions thereto are untenable.
The seventeenth exceptive assignment of error is to "the failure of his Honor to advise the jury of the legal effect of the scenic easements as set out in the pleadings and shown by the evidence." The court gave the jury a proper definition of the word easement as "the right which one person has to use the land of another for a specific purpose." The easements taken in petitioner's lands by the defendant and conveyed by it to the United States are clearly stated in the deed from the State to the Federal Government and are self-explanatory and self-definitive, and in the absence of any request for any further explanation of the legal effect of such easements we think this exception is untenable.
The eighteenth exceptive assignment of error is to "the failure of his Honor to explain to the jury the meaning of `value'; as used in the charge and limiting the appraisal to the `fair market value'; and the failure of the court to explain the meaning of `fair market value'"; and the nineteenth exceptive assignment of error is to "the failure of his Honor to define the term `general and special benefits' referred to in the statute, and apply the law thus defined to the facts of this case."
The case was tried from beginning to end upon the theory that the plaintiff was entitled to recover damage for the appropriation of its lands taken in fee simple, and for damage to its land upon which easements were taken, plus any damage to the remaining lands by reason of the construction of the Parkway, diminished by any general and special benefits accruing to the remaining lands. The defendant's own witnesses gave estimates based upon this measure of damage to the effect that the petitioner should recover at least $7,500. The only question involved when the case finally reached the jury was what damage was the petitioner entitled to recover of the defendant under this theory of the trial. There was no question but that the plaintiff was entitled to recover some damage. His Honor read to the jury C. S., 3846 (bb), which furnishes the yardstick by which the damage was to be measured. There were no requests for explanations of the terms mentioned in these exceptions. Under the circumstances of this trial we think the charge as given was a substantial compliance with the law's requirements.
The twentieth exceptive assignment of error is to "the failure of his Honor to state in a plain and correct manner the evidence given in the case and to declare and explain the law arising thereon." This assignment in no way sets forth wherein the charge fails to comply with the statute, C. S., 564, and is therefore a broadside exception and is untenable. Davis v. Keen, supra, and Jackson v. Lumber Co., Supra.
A reading of the rather voluminous record and a careful examination of each exception preserved leave us with the impression that the case has been tried in a fair and impartial manner. The parties were permitted to develop their evidence and present their respective contentions with few interruptions or objections, the charge shows no bias and contains no intimation as to what facts were established.
This proceeding was instituted, under the provisions of the statute, solely for the assessment of damages for the taking of petitioner's property for a public use. The case resolved itself into a question of fact, presented to a jury whose intelligence must be presumed, under an issue correct in form, about a matter which the jurors were fully competent to determine. If the judge's charge was not as comprehensive and explicit as desired, the defendant has no just ground for complaint on that score, since it consented that the judge need not recapitulate the testimony, and offered no requests for instruction on any phase of the case. If the defendant desired more particular and detailed instructions relative to certain phases of the case, it was its duty to have requested special instructions. S. v. Herndon, supra; Bank v. Yelverton, 185 N.C. 314.
The amount assessed as compensation for the taking of petitioner's property may not be held unreasonable under the testimony adduced. The defendant made no motion before the trial court, and brings none here, to set aside the verdict on the ground that the amount was excessive.
If any errors of omission were committed by the trial judge in his instructions to the jury, it is not perceived that the jury was thereby misled, or that the defendant suffered prejudice or the denial of any substantial right, or that the amount of the recovery was enhanced thereby. It was well said in Wilson v. Lumber Co., 186 N.C. 56: "Verdicts and judgments are not to be set aside for harmless error or for mere error and no more. To accomplish this result, it must appear not only that the ruling complained of is erroneous, but also that it is material and prejudicial, amounting to the denial of some substantial right. In re Ross, 182 N.C. 477; Burris v. Litaker, 181 N.C. 376." Collins v. Lamb, 215 N.C. 719. It would seem that the application of this salutary rule would entitle the appellee to the affirmance of the judgment.
The twenty-first, twenty-second and twenty-third exceptive assignments of error are formal and are disposed of in the discussion of the assignments that preceded them.
DEVIN and SEAWELL, JJ., join in this opinion, which makes the Court evenly divided, CLARKSON, J., not sitting. Under these circumstances the judgment of the court below is affirmed as the disposition of this appeal without becoming a precedent, in accordance with the practice of this Court. Miller v. Bank, 176 N.C. 152; Durham v. R. R., 113 N.C. 240, and citations thereto in Anno. Ed.
Affirmed.