Yancey v. North Carolina State Highway & Public Works Commission

Stacy, O. J". The question for decision is whether the petitioners, in the circumstances here disclosed, are entitled, as a' matter of law, to interest on the compensation fixed by the jury from the date of the original appropriation. The record points to a negative answer. *188 In the first place, it will be noted from the issue submitted to the jury that the verdict embraces not only indemnity for the lands taken and easements imposed, but also damages for injury to the remainder of the lands. Highway Com. v. Hartley, 218 N. C., 438, 11 S. E. (2d), 314; Light Co. v. Moss, 220 N. C., 200; S. v. Lumber Co., 199 N. C., 199, 154 S. E., 72. Of course, the damages to the remainder of the lands were unliquidated at the time of the taking. Bond v. Cotton Mills, 166 N. C., 20, 81 S. E., 936. Then, too, the value of the lands taken was subject to be offset by general and special benefits, if any, accruing to the petitioners from the construction of the Parkway. Wade v. Highway Com., 188 N. C., 210, 124 S. E., 193. These were likewise unliquidated at the time, as was also the claim of the petitioners for compensation. R. R. v. Mfg. Co., 166 N. C., 168, 82 S. E., 5. Moreover, it will be observed the issues are couched in the present tense, and they speak as of the trial term. Secondly, it appears that while the lands were appropriated on 28 April, 1937, by the filing of maps outlining the appropriated areas, etc., the petitioners were permitted to harvest the crops on the lands for the years 1937 and 1938. Thus, the actual surrender or deprivation of possession was delayed beyond the date of appropriation. Durham v. Davis, 171 N. C., 305, 88 S. E., 433. Thirdly, there is no challenge to the validity of the trial, and none to the correctness of the verdict. The petitioners are content with what the jury has done and with the instructions given by the court. For present purposes, therefore, they are deemed to be correct. Howell v. R. R., 186 N. C., 239, 119 S. E., 198; Rawls v. R. R., 172 N. C., 211, 90 S. E., 116; S. v. Johnson, 193 N. C., 701, 138 S. E., 19. But the demand for interest after verdict is at variance with the judge’s instruction to the jury to which no exception has been preserved. Thus, to concede the correctness of the charge would seem to forestall a denial of its effect. In re Steele, 220 N. C., 685; Cameron v. McDonald, 216 N. C., 712, 6 S. E. (2d), 497. Objections not insisted upon are waived. Dixon v. Osborne, 201 N. C., 489, 160 S. E., 579; McDowell v. Kent, 153 N. C., 555, 69 S. E., 626. Clearly, if the charge be correct, and it is not challenged, the petitioners have no ground for complaint. This singularizes the present case and differentiates it from others cited or examined. Let us test it in another way. Supposing the jury had been instructed that although interest was not allowable as such, nevertheless they should take into consideration the intervening delay and fix the award accordingly. Obviously, under such a charge, the court would not be justified in adding interest to the award. R. R. v. Mfg. Co., supra. So, also, under a charge dealing with the subject and deemed to be correct, it is contrary to precedent for the court to add interest to the amount of the verdict. Mfg. Co. v. McQueen, 189 N. C., 311, 127 S. E., 246; Harper *189 v. R. R., 161 N. C., 451, 77 S. E., 415. There was no motion to set aside tbe verdict, and it is tbe practice witb us tbat tbe judgment follows tbe verdict. Davis v. Doggett, 212 N. C., 589, 194 S. E., 288; Parrish v. Hartman, ibid., 248, 193 S. E., 18; Durham v. Davis, supra.. Tbe verdict, wbicb fixes tbe compensation as of tbe trial term, stands unim-peacbed. Fourthly, it further appears tbat “on motion of . . . attorneys for tbe petitioners” judgment was entered on tbe verdict as rendered. Tbe question arises whether tbe petitioners are tbe “parties aggrieved” within tbe purview of C. S., 632, by a judgment in their favor entered on their own motion. Carruthers v. R. R., 218 N. C., 377, 11 S. E. (2d), 157; McCullock v. R. R., 146 N. C., 316, 59 S. E., 882. If error, was it cured or invited? Kelly v. Traction Co., 132 N. C., 368, 43 S. E., 923; Buie v. Buie, 24 N. C., 87. Tbe unusuality of tbe situation would doubtless be conceded. Hargett v. Lee, 206 N. C., 536, 174 S. E., 498. Tbe appellants are not asking for a new trial. In reply to all this, however, tbe petitioners aver tbe fact is, tbat no interest was allowed in tbe court below; tbat it is entirely consistent to award it here, and tbat they are entitled to it as a matter of law. C. S., 2309; Chatham v. Realty Co., 174 N. C., 671, 94 S. E., 447; Bryant v. Lumber Co., 192 N. C., 607, 135 S. E., 531; Perry v. Norton, 182 N. C., 585, 109 S. E., 641; S. A. L. Ry. v. U. S., 261 U. S., 299. Conceding tbe apparent force of tbe syllogism — though it may assume too much—we are still faced witb tbe procedural precedents above cited. These have heretofore been regarded as controlling. R. R. v. Mfg. Co., supra. Finally, we may say tbe case has been argued witb much learning and manifest research, but it occurs to us tbat tbe question debated is foreclosed by tbe record. Hence, tbe result is an affirmance of tbe judgment rendered on tbe verdict. Affirmed. ScheNck and WiNbobne, JJ., took no part in tbe consideration or decision of this case.