State Highway & Public Works Commission v. Hartley

Stacy, C. J. It is conceded that the measure of damages, presently applicable, is the difference in the fair market value of respondent’s land immediately before and immediately after the taking. Elks v. Comrs., 179 N. C., 241, 102 S. E., 414. The items going to make up this difference are understood to embrace compensation for the part taken, and injury to the remainder, which is to be offset by any general and special benefits accruing to the landowner from the construction of the Parkway. Bailey v. Highway Com., 214 N. C., 278, 199 S. E., 25; Wade v. Highway Com., 188 N. C., 210, 124 S. E., 193; Power Co. v. Power Co., 186 N. C., 179, 119 S. E., 213; Brown v. Power Co., 140 N. C., 333, 52 S. E., 954. It is further conceded that the time of the taking was 18 December, 1935, and that the award is to be made as of this date. Hart v. R. R., 144 N. C., 91, 56 S. E., 559. In determining the fair market value of property taken in condemnation, it is generally regarded as competent to show the value of the property within a reasonable time before and/or after the taking as bearing upon its value at the time of the appropriation. Ayden v. Lancaster, 197 N. C., 556, 150 S. E., 40; DeLaney v. Henderson-Gilmer Co., 192 N. C., 647, 135 S. E., 791; Wyatt v. R. R., 156 N. C., 307, 72 S. E., 383; Grant v. Hathaway, 118 Mo. App., 604; 8 R. C. L., 489. The rule is necessarily one of variableness in the time limits, depending upon the nature of the property, its location and surrounding circumstances, and whether the evidence offered fairly points to its value at the time in question. Newsom v. Cothrane, 185 N. C., 161, 116 S. E., 415; Powell *441 v. R. R., 178 N. C., 243, 100 S. E., 426; Myers v. Charlotte, 146 N. C., 246, 59 S. E., 674; Wade v. Tel. Co., 147 N. C., 219, 60 S. E., 987. It follows, therefore, that when the evidence is too remote in point of time to throw any light on the fact in issue, to wit, the fair market value of the property at the time of the taking, it is incompetent and should be excluded. City of Portland v. Tigard, 64 Or., 404, 129 Pac., 755, on rehearing, 130 Pac., 982. “The general rule is, that testimony as to market value at a time too remote from the date in question to be of any probative value should be excluded” —Baugh, J., in Reed v. So. Pac. Co., 99 S. W. (2d) (Tex.), 1026. Such evidence can be of no assistance to the jury in arriving at a proper conclusion. Oregon R. & N. Co. v. Eastlock, 54 Or., 205, 102 Pac., 1014, 20 Ann. Cas., 692. On the other hand, it may be particularly damaging to the petitioner’s cause. Moore v. Hutchinson, 107 W. Va., 275. Speaking directly to the question here presented, in Power Co. v. Hayes, 193 N. C., 104, 136 S. E., 353, Connor, J., delivering the opinion of the Court, said: “Eespondents are entitled to recover as just compensation for the 29.5 acres of land described in the petition its value at the time it was taken. ... No change in the value of said land after said date, whether caused by the use for which it is to be condemned or not, can be considered in determining the amount which respondents shall receive and petitioner shall pay as just compensation for same.” Again, speaking to a kindred situation in Beedle v. Campbell, 100 Fed. (2d), 798, it was said: “Evidence of value in 1927 was not competent. Damages must be fixed as of the time the property was converted (1933). Especially must that be true here, when the court judicially knows that between 1927 and 1933 there had been a marked decline in real estate values, which continued up to the time of the trial of the action.” See Ohio Bell Tel. Co. v. Public Utilities Commission, 301 U. S., 292. And in Olson v. United States, 292 U. S., 246, the court of last resort made this pronouncement: “But the value to be ascertained does not include, and the owner is not entitled to compensation for any element resulting subsequently to or because of the taking. Considerations that may not reasonably be held to affect market value are excluded. Yalue to the taker of a piece of land combined with other parcels for public use is not the measure of or a guide to the compensation to which the owner is entitled.” We think the challenged evidence offered by the respondent was too remote in point of time. 22 C. J., 182. There is no evidence that the value of the property remained the same from the time it was taken in 1935 to the time it was examined by the witnesses in 1938 and 1939. *442 The respondent said there had been no change in the land, except the construction of the Scenic Highway (and some cleaning up), but this is far from saying there had been no change in its value. Indeed, one of respondent’s own witnesses (Harrison Baker) testified that “he could not give an opinion as to the fair market value just before the Parkway was located, because he didn’t know what road facilities the property then had, but the value he is now putting on it is the value after the Parkway went through and there was a good way to get to it.” He further opined: “Market values fluctuate so much on real estate in this country. At one time it would have a market value that was pretty high during the war period, but since then it has not been so high until the last few years it has been advancing. Since the Blue Ridge Parkway has been built through here it has sort of picked up. Before that it was pretty dead at times and then again it was in the market.” The cases of Powell v. R. R., supra, and Martin v. Ince, 148 S. W. (Tex. App.), 1178, cited and relied upon by the respondent, are distinguishable by reason of different fact situations. Having reached the conclusion that there was error in the admission of evidence as presented by the respondent, it is unnecessary to consider the exception addressed to the jury view. Mr. McIntosh in his valuable work on Procedure, page 618, summarizes the decisions on the subject as follows: “It is within the discretion of the court to allow the jury to view the premises involved in the controversy, but the practice is not commended.” A jury view is usually had by consent of the parties rather than over the objection of one of them. See Forbes v. United States, 268 Fed., 273, and Snyder v. Mass., 291 U. S., 97. For the error in admitting incompetent evidence, the petitioner is entitled to another trial of the issue. It is so ordered. New trial. ClabKSON, J., not sitting.