State Ex Rel. Myers v. Wilmington-Wrightsville Beach Causeway Co.

CoNNOR, J. When this action was called for trial in tbe Superior Court of New Hanover County, at April Term, 1933, Judge Devin ruled tbat both tbe plaintiff and tbe defendants bad waived a hearing by commissioners to be appointed by tbe clerk under tbe provisions of C. S., 1716, of tbe only matter then to be tried in accordance with tbe decision of this Court on defendants’ appeal from tbe judgment at January Special Term, 1932. See 204 N. C., 260, 167 S. E., 858. Tbe *513 plaintiff excepted to this ruling, and on its appeal to this Court assigns same as error. This assignment of error is not sustained. This action was begun by the plaintiff in the Superior Court of New Hanover County primarily to recover judgment that plaintiff, by virtue of the provisions of chapter 44, Public Laws of North Carolina, 1927, as amended by chapters 4 and 7, Public Laws of North Carolina, 1929, had the right to take possession of the strip of land described in the complaint, without paying compensation therefor to the defendants, who were then in possession thereof, claiming title thereto; and, secondarily, if it should be adjudged that plaintiff had no right to take possession of said strip of land, without paying compensation therefor, to recover judgment that plaintiff had the right to take possession of said strip of land, upon the payment to the defendants of just compensation for the same. In the latter event, plaintiff prayed that the amount of such compensation be determined as provided by law. It was adjudged at the hearing before Judge Midyette that plaintiff had the right to take possession of said strip of land, but that defendants, as the owners of the same, were entitled to just compensation therefor. Thereafter, the only issue to be tried involved the amount of compensation and damages which the defendants were entitled to recover of the plaintiff. This issue was tried by Judge Barnhill, at January Special Term, 1932. At this trial it was expressly stipulated by the parties to the action that the issue should be tried by the court, and not by a jury, and that “failure to have a hearing before commissioners, and all other omissions and irregularities in the preliminary proceedings were likewise waived.” By reason of this stipulation, there was no error in the ruling of Judge Devin that both the plaintiff and the defendants had waived the right, if any they or either of them had, to a preliminary hearing by commissioners of the issue involving the amount of compensation to which the defendants were entitled for the taking of their property by the plaintiff. Whether the waiver of trial by jury and the agreement that the issue should be tried by the court made at the hearing before Judge Barnhill was binding on the parties at the subsequent hearing before Judge Devin need not be decided. The defendants did not insist that the issue should be tried by the court, or except to the submission of the issue to a jury. During the progress of the trial the plaintiff excepted to rulings by the court on its objections to certain testimony of an expert witness, which was offered by the defendants as evidence tending to show that certain expenditures made by the defendants in the construction of the bridge over and across the Inland Waterway Canal were reasonable in amount, and required for the construction of said bridge. Assignments of error based on these exceptions cannot be sustained. The testimony *514 was competent for tbe purpose for wbicb it was offered and submitted to the jury. Even if it should be held otherwise, its admission could not be held as reversible error, for which a new trial should be ordered. After a full and lucid statement of all the matters involved in the issue, the court instructed the jury as follows: “So it is necessary for you to find from the evidence, by the greater weight of the evidence, what was the amount reasonably expended by the defendants in the construction of the bridge over the right of way of the Inland Waterway, or canal, in order to maintain their respective franchises as public-service corporations, and to preserve the value of their property not included in the right of way. “This would include not only the amount reasonably expended for materials and labor that went into the construction of the drawbridge, but would also include preliminary expenses, reasonably and necessarily incurred, and reasonable expenses for engineering, plans, supervision, and inspection costs, and the costs of putting cable underground for the operation of the drawbridge machinery, and compensation for the amount reasonably expended in the construction of the drawbridge; it would also include interest on the money expended by the defendants during the construction of the drawbridge as an item of expense in the construction of the drawbridge from the time such expenditures began in November, 1930, until the completion of the drawbridge on 11 June, 1931.” Assignments of error based on plaintiff’s exceptions to this instruction cannot be sustained. In Seaboard Air Line Railway Company et al. v. United States, 261 U. S., 299, 67 L. Ed., 664, it is said: “The requirement that ‘just compensation’ shall be paid is comprehensive, and includes all elements, and no specific command to include interest is necessary when interest, or its equivalent, is a part of such compensation.” A careful examination of the record discloses no error in the trial of this action. The judgment is affirmed. No error.