Carolina Power & Light Co. v. Reeves

ClaeKSON, J. It appears that plaintiff has completed tbe erection of its transmission line across defendants’ land, so tbe question of injunction now becomes a mooted or academic discussion. Glenn v. Culbreth, 197 N. C., 675. Tbe final judgment or decree was rendered by tbe clerk on 28 January, 1929, and tbe record discloses tbe following: “From tbe foregoing decree both petitioner and defendants object and except and appeal to tbe Superior Court. Notice of appeal by both parties given and waived in open court, and this cause is thereupon transferred to tbe civil issue docket, and all papers heretofore filed in this cause are herewith sent. This 29 January, 1929. Roland Owen, clerk Superior Court.” Tbe present condemnation proceedings was instituted under C. S., cbs. 32 and 33. Chapter 32 gives tbe law in reference to tbe acquisition and condemnation of property for electric, telegraph and power com- *408 pañíes. O. S., ch. 33, is the chapter on “Eminent Domain.” Under chapter 32, we find C. S.,'1702: “The proceedings for the condemnation of lands, or any easement or interest therein, for the use of telegraph, telephone, electric power or lighting companies, the appraisal of the lands, or interest therein, the duty of the commissioners of appraisal, the right .of either party to file exceptions, the report of commissioners, the mode and manner of appeal, the power and authority of the court or judge, the final judgment, and that manner of its entry and enforcement, and the rights of the company pending the appeal, shall be as prescribed in Article 2, entitled 'Condemnation Proceedings,’ of the chapter Eminent Domain.” Under chapter 33 we find, C. S., 1723, in part: “Within twenty days after filing the report the corporation or any person interested in the said land may file exceptions to said report, and upon the determination of the same by the court, either party to the proceedings may appeal to the court at term, and thence, after judgment, to the Supreme Court. The court or judge on the hearing may direct a new appraisal, modify or confirm the report, or make such order in the premises as to him shall seem right and proper. If the said corporation, at the time of the appraisal, shall pay into court the sum appraised by the commissioners, then and in that event the said corporation may enter, take possession of, and hold said lands, notwithstanding the pendency of the appeal, and until the final judgment rendered on said appeal,” etc. O. S., 1724, is as follows: “In any action or proceeding by any railroad or other corporation to acquire rights of way or real estate for the use of such railroad or corporation, and in any action or proceeding by any city or town to acquire right of way for streets, any person interested in the land, or the city, town, railroad or other corporation shall be entitled to have the amount of damages assessed by the commissioners or jurors heard and determined upon appeal before a jury of the Superior Court in term, if upon the hearing of such appeal a trial by a jury be demanded.” Condemnation proceedings are statutory and as the right to take private property for public use is given, the rule of strict construction ordinarily applies. Board of Education v. Forrest, 193 N. C., 519. One of defendants’ exceptions to the report of the commissioners is on the ground “That the commissioners in making their findings as to damage, failed to take into consideration the damage to the property of the defendants other than the value of the actual land taken for the power line.” The record discloses that defendants filed exceptions, and among others the above. The clerk overruled the exceptions and confirmed the report. Defendants objected and excepted and appealed to the Superior Court, and the cause was transferred to the civil issue *409 docket. See Ayden v. Lancaster, 195 N. C., 297; Electric Co. v. Light Co., 197 N. C., 766. Tbe defendants filed a long motion and petition in tbe cause, among other things asking injunctive relief. Tbe matter was beard on tbe record proper and numerous affidavits before tbe court below in term. From a careful reading of tbe report of tbe commissioners, we do not think in tbe appraisal the commissioners took into consideration in fixing tbe compensation for tbe land taken as described in the petition, tbe injury done to tbe other land of defendants. At least tbe report is uncertain, indefinite and ambiguous. Wood v. Jones, ante, 356. Under C. S., 1723, supra, we find “Tbe court or judge on the bearing-may direct a new appraisal,” etc. Tbe exception of defendants embodied a substantial right. Tbe commissioners should have, in ascertaining what is just compensation, applied tbe following rule: (1) What compensation is tbe defendant entitled to recover of tbe plaintiff, on account of taking tbe land described in tbe petition for tbe erection of its transmission line across defendants’ land ? (2) What compensation is tbe defendants entitled to recover of tbe plaintiff for tbe injury and damage, if any, to their other land by reason of tbe taking of said land and erection of its transmission line across defendants’ land? (3) What special benefits will defendants receive peculiar to their land and not in common with tbe other landowners in tbe vicinity by reason of tbe erection by plaintiff of its transmission line across defendants’ land? Ayden v. Lancaster, 197 N. C., 556. Tbe question involved: Should tbe court below, under C. S., 1723, have directed a new appraisal and remanded tbe proceedings to tbe clerk to that end or did tbe Superior Court have tbe discretion to have these issues tried de novo in tbe Superior Court? We think tbe court below bad discretion in tbe matter. C. S., 637, is as follows: “Whenever a civil action or special proceeding begun before tbe clerk of tbe Superior Court is for any ground whatever sent to tbe Superior Court before tbe judge, tbe judge has jurisdiction; and it is bis duty, upon tbe request of either party, to proceed to bear and determine all matters in controversy in such action, unless it appears to him that justice would be more cheaply and speedily administered by sending tbe action back to be proceeded in before tbe clerk, in which case be may do so.” Under this section tbe judge now has final jurisdiction to determine tbe whole matter in controversy. Lictie v. Chappell, 111 N. C., 347, 16 S. E., 171; Faison v. Williams, 121 N. C., 152, 28 S. E., 188; Oldham v. Rieger, 145 N. C., 254, 58 S. E., 1091; Hall v. Artis, 186 N. C., 105, 118 S. E., 901. Tbe court has tbe right in its discretion to remand tbe cause to tbe clerk for further proceedings. York v. McCall, 160 N. C., *410 276, 280, 76 S. E., 84; Michie N. C. Code, 1927, p. 250-1; Little v. Duncan, 149 N. C., 84. See C. S., 536; McNair v. Yarboro, 186 N. C., 111. Construing C. S., 1723, witb 0. S., 637, we tbink on appeal to tbe Superior Court tbe matter was in tbe sound discretion o£ tbe court to remand tbe proceeding to tbe clerk or for trial de now. If in tbe discretion of tbe court below tbe proceeding is not remanded, tbe defendants bave tbe right of a jury trial “if upon tbe bearing of sucb appeal a trial by a jury be demanded.” C. S., 1724. In Ayden v. Lancaster, 195 N. C., at p. 299, speaking to tbe subject: “Tbe appeal of defendants from tbe order of tbe clerk confirming tbe report of tbe commissioners brought into tbe Superior Court tbe entire case, where tbe jury trial must be bad de novo so far as tbe question of damage is concerned.” In that ease defendants demanded a jury trial. Mr. McIntosh, in North Carolina Practice and Procedure, at p. 63-64, states tbe matter as follows: “As a department of the Superior Court, tbe clerk has jurisdiction to bear and determine certain cases which do not come before tbe judge in tbe first instance, such as matters of probate and special proceedings; and it became necessary to determine whether the appellate jurisdiction in sucb cases was derivative, as in appeals from other courts. It was first held that if a case was improperly brought before tbe clerk, when it should bave been before tbe judge at term, and it came before tbe judge by appeal, all necessary amendments would be made and tbe jurisdiction retained; but if tbe case was properly before tbe clerk, and came before tbe judge on appeal, an amendment could not be made to include matters over which tbe clerk would bave bad no jurisdiction. It was also held that when an appeal came before tbe judge from tbe clerk, and further action was necessary, tbe judge should decide tbe question presented for review and remand tbe case to tbe clerk. To prevent tbe confusion thus arising in different departments of tbe same court, it was enacted in 1887 that, when any case begun before tbe clerk is, 'for any ground whatever/ sent before tbe judge, be may proceed to bear and determine all matters in controversy, or may, in bis discretion, remand tbe case to tbe clerk. By reason of this statute, it is held that tbe appellate jurisdiction is not derivative in any case, even when tbe clerk bad no jurisdiction, but tbe case is still in tbe same court for review and for sucb other action as may be necessary.” Tbe refusal of tbe court to vacate and set aside tbe judgment of tbe clerk and to order a new appraisal does not deny appellants tbe right to have tbe matters determined by a jury in tbe Superior Court. For tbe reasons given, tbe judgment of tbe court below is Affirmed.