Greer v. Board of Commissioners

Brogden, J. The trial judge sustained the exception to the referee’s report, and rendered judgment for the plaintiff without finding any facts. The referee found the facts, and also found as a conclusion of law upon such facts that the plaintiff was not entitled to recover for the *716 reason “that tbe plaintiff received special benefits from tbe construction of tbe highway wbicb was not common to other landowners along said highway, in that tbe bigbway made accessible a very fine view, suitable for development, and by so doing greatly enhanced tbe value of plaintiff’s property, and tbe benefits to tbe plaintiff on this account, wbicb is found not to be common to other property owners, in a sum equal to or greater than tbe sum of $1,065, . . . and that after deducting tbe benefits as herein referred to, being special benefits, that tbe plaintiff has not sustained any damages.” “Tbe Judge having made no specific findings of fact, be is presumed to have adopted those of tbe referee.But tbe finding of tbe referee was adverse, and we cannot review bis findings of fact. Tbe judge below possessed that power, but be approved tbe referee’s findings.” McEwen v. Loucheim., 115 N. C., 348. If tbe trial judge bad found tbe facts on exceptions filed to tbe referee’s report, such findings are not reviewable in tbe Supreme Court, if there is evidence to support them. Miller v. Groome, 109 N. C., 148; Dumas v. Morrison, 175 N. C., 431; Caldwell v. Robinson, 179 N. C., 518; Hardy v. Thornton, ante, 296. Tbe judge, upon exceptions duly filed to a referee’s report, may set aside, modify or confirm tbe report of tbe referee, but if be does not find tbe facts, tbe facts found by tbe referee are presumed to have been adopted by tbe judge. So that, in this case, we have this situation: Tbe referee has found, as a fact, that tbe construction of tbe bigbway made available to tbe plaintiff certain special benefits not common to other property in tbe neighborhood and similarly situated. By reason of tbe failure of tbe trial judge to find tbe facts in regard to tbe special benefits alleged, tbe finding by tbe referee stands. Therefore, tbe judgment is not supported by tbe facts found. In Davis v. Davis, 184 N. C., 108, tbe proper procedure, in such cases, is stated thus: “When exceptions are taken to a referee’s findings of fact and law, it is tbe duty of tbe judge to consider tbe evidence and give bis own opinion and conclusion, both upon tbe facts and tbe law. He is not permitted to do this in a perfunctory-way, but be must deliberate and decide as in other cases — use bis own faculties in ascertaining tbe truth, and from bis own judgment as to fact and law. This is required not only as a check upon tbe referee and a safeguard against any possible error on bis part, but because be cannot review tbe referee’s findings in any other way.” Upon tbe present record, therefore, in accordance with established principles of law, tbe judgment is set aside and tbe cause remanded for further consideration of tbe report of tbe referee, in conformity to tbe course and practice of tbe Court. Remanded.