Raleigh, Charlotte & Southern Railway Co. v. Mecklenburg Manufacturing Co.

"WaleieR, J., after stating tbe case: In this case both parties appealed to this Court from tbe judgment below, tbe defendant upon tbe ground that the land was not subject to condemnation under our statute which exempts certain property from tbe operation of tbe law. This view was rejected by tbe Court, the writer of this opinion dissenting. Tbe plaintiff’s contention that there were errors in tbe rulings and charge of tbe court below was sustained and a new trial ordered. Tbe first five errors, in our former decision, now assigned, may naturally be considered together, as if we were wrong in bolding that only tbe — 160 — value of the laud actually taken, and the direct physical injury to that which was left, can be considered, there was error, and the other assignments relate only to the extent of the error. Ve are satisfied, upon reconsideration of the case, that the rule thus stated by the Court was entirely too narrow and restricted, and if applied without modification, or, at least, full explanation, will not afford just compensation to those whose lands may be appropriated for a public use; but we do not think this requires that the former conclusion or judgment of this Court should be reversed, for reasons to be hereinafter stated. It may be said, generally, that there are some, if not many, indirect injuries to 'land, not necessarily of a physical kind, which will diminish its value, and which are susceptible of the kind of proof which the law requires in cases generally. It may, in the beginning, be readily and fully conceded that mere conjecture, speculation, or surmise is not allowed by the law to be a basis of proof in respect of damages or compensation. The testimony offered should tend to prove the fact in question with reasonable certainty. Byrd v. Express Co., 139 N. C., 273; Machine Co. v. Tobacco Co., 141 N. C., 284. There are expressions in the case of R. R. v. Wicker, 74 N. C., 220, which give some support to the ruling in this case; but the principles stated in that ease have been greatly modified by subsequent decisions of this Court, and we have been brought more in line and into more perfect agreement with the prevailing thought upon this subject, as exhibited in the many decisions of other courts. "We are not permitted to apply the same rule in a case of this sort as obtains with reference to one where there has been no condemnation or taking of land for a public use, and where the injury complained of may be no more than a mere inconvenience or annoyance to an adjacent proprietor which is common to all others similarly situated. "We bold our property subject to all necessary or reasonable police regulations, and private inconvenience must give way to the public good; but it is quite a different thing when the property of the individual is taken or condemned for public use, for in such a case the positive law requires, as well as justice and equity, that we should make fair and reasonable compensation. The case of Austin v. R. R., 108 Ga., 671, was relied on in the former opinion to sustain the doctrine that the injury to the part of the land not taken must be direct and physical; but that was not a case of condemnation, where the land was taken for a public use, nor was there any invasion of property or physical interference therewith. The Court held that the right to recover damages or compensation for injury or inconvenience resulting from noise of the passing trains, smoke, jarring or vibration, or any other annoyance, was incident to the taking of the property or some invasion of it, or obstruction of some right or easement connected with or appurtenant to it, and that the inconvenience or annoyance alone — 161 — will not furnish an independent ground for the assessment of damages; and this was so, said the Court, because the right to “compensation” is given only where there has been a “taking” of private property. When such is tie case, not only the direct but the incidental injury resulting-in a diminution of its value may be considered in making compensation. This Court more recently has considered the Austin case- in R. R. v. Armfield, 161 N. C., 464, where it was said: “The rule for awarding-damages in condemnation proceedings was not involved in the decision, and, on this question, Simmons, G. J., delivering the opinion, said: ‘In such a proceeding the effect of smoke and noise in the operation of trains are pi-operly to be considered in so far as they tend to impair the value of the property’; and, referring to and distinguishing a former decision of the Georgia Court, he further said: ‘In our own case of Steiner v. R. R., 44 Ga., 546, the tracks were in the street, immediately in front of plaintiff’s residence, physically invading his right of way and thereby giving him a cause of action. When there has been this physical interference, there is a “damage” in connection ^ith the taking of private property, consisting of an easement of right of way, and the plaintiff, being thus damaged, is allowed to show all the elements of damages. The effect of smoke and noise is considered, not as an independent element of damage, but as tending to prove the value after the railroad has taken or damaged property or some right appurtenant.’ ” The case, therefore, instead of being an authority for excluding annoyance from noise, smoke, vibration, etc., as matters affecting the value of the property, and therefore as proper to be considered in estimating the damage, is strongly the other way, so far as a case where the very point was not involved can be an authority. This Court, on the authority of the Georgia case and many others, deliberately concluded, in the Armfield case, that such proof as was offered by the appellee, in regard to noises, smoke, etc., was admissible to -show diminution in the value of the land as a basis for the award of compensation. It is there said: “In these and all other cases where this question of condemning a right of way is substantially presented the principle as stated is only intended to exclude considerations of sentiment or personal annoyance, detached from any effect on the pecuniary value of the property or the allowance of damages purely of a speculative character; and accordingly it is held here and in well considered cases elsewhere that in awarding damages for a railroad right of way plaintiff shall be allowed to recover the market value of the property actually included, and for the impairment of value done to the remainder, and that in ascertaining the amount it is proper, among other things, to consider the inconvenience and annoyances likely to arise, in the orderly exercise of the easement, which interfere with the use and proper enjoyment of the property by the owner, and which sensibly im — 162 — pair its value, and in tbis may be included tbe injury and annoyance from tbe jarring, noise, smoke, cinders, etc., from tbe operating of trains and also damage from fires to tbe extent that it exists from close proximity of tbe property, and is not attributable to defendant’s negligence,” citing R. R. v. McLean, 158 N. C., 498; Brown v. Bower Co., 140 N. C., 333; Chicago v. Taylor, 125 U. S., 161; R. R. v. Hall, 78 Texas, 169 (9 L. R. A., 209); Tel. Co. v. Darst, 192 Ill., 47 (85 Am. Rep., 288); Lewis on Em. Dom. (3 Ed.), sec. 706 (478); 2 Elliott on Railroads, sec. 978; 15 Cye., p. 724. We may pause here to state that we need not decide whether risk from fires likely to be caused by negligence may be considerd in tbe general estimate, for there is no such question presented by the exceptions, as there was no special instruction given in regard thereto. We do not perceive why tbe case of R. R. v. Church, 104 N. C., 529, is not an authority for tbe position that tbe proof is not confined to direct physical damage to tbe property, but may include annoyance or inconvenience to those occupying tbe premises or tbe buildings thereon, provided tbe jury find that the value of tbe property is diminished thereby. There is no substantial difference between tbe two cases. We will refer to that case a little more fully, as it seems to be a direct and valuable authority as to several of tbe questions presented in tbis record. It points out tbe marked difference between showing a diminution in value of tbe property, on account of tbe several annoyances from passing trains, and proving them for tbe purpose of recovering special damages for the annoyance itself, as a distinct element of damage. Tbe one is proper, and tbe other is not. Tbe interruption or disturbance of religious services held in the church, by reason of tbe noise and other causes incident to tbe running of trains, and tbe frightening of horses of tbe worshippers from tbe same causes, was held to be proper for tbe consideration of tbe jury in determining bow, if at all, tbe value of tbe property as a site for tbe church bad been thereby affected, and not as, in themselves, separate items of damage. We do not see why the case is not parallel with tbis one. If it is competent to prove those things, as tending to show a diminution in value of tbe particular land for church purposes, why not apply tbe same rule to similar annoyances as tending to show a decrease in tbe value of land for mill purposes ? Tbe result is apt to be tbe same in tbe one case as in tbe other, though not, perhaps, of tbe same degree. Tbe two cases are, at least, sufficiently analogous to make R. R. v. Church an authority for tbe position -we have taken. Tbe risk or danger of tbe property being damaged or destroyed by fire set out by passing trains is another matter which is proper to be taken into account for tbe purpose of showing bow the property has been lessened in value by tbe location of tbe right of way on tbe land, and tbe word “property” must be taken as including tbe entire plant, or tbe land — 163 — enhanced in value by the mill, other structures and other improvements placed upon it, and the difference in value is the measure of compensation. These views are strongly supported by many authorities in other jurisdictions. Pierce on Railroads, pp. 210, 211; Baker v. R. R., 236 Pa., 483; R. R. v. Williams, 133 Ga., 679; R. R. v. Nix, 137 Ill., 141; Kayser v. R. R., 88 Neb., 343; Moore v. R. R., 130 N. Y., 523; R. R. v. Kirkover, 68 N. E. (N. Y.), 366; Summerville v. R. R., 22 N. J. Law, 495; R. R. v. Board of Education, 32 Utah, 305; Duke of Buccleuch v. Boards of Works, L. R. 5, H. L. 418; Comstock v. R. R., 169 Pa., 287; Summerville v. Doughty, 22 N. J. L., 495; R. R. v. Coly, 73 Wash., 291; Gas Transp. Co. v. Cartee, 149 Ky., 90; R. R. v. Bluchle, 234 Mo., 471; Power Co. v. Broneau, 41 Utah, 4; R. R. v. White Villa Club, 155 Ky., 453; R. R. v. Munsell, 38 Okla., 253. The above cases fairly and fully illustrate the prevailing doctrine oí the courts and the utmost extreme, in some instances, far beyond those here proposed, to which it has been carried. Instructive cases as to special features of the subject will be found in R. R. v. Mendosa, 193 Mo., 518, as to risk from fires affecting the value without regard to probability of fire even by negligence: Kayser v. R. R., supra, as to noise, smoke, and other annoyances; R. R. v. Board of Education, supra, as to danger of railroad tracks and other hazards and inconveniences, as affecting public school grounds; R. R. v. Bass, 9 Ga. App., 83, as to inability to hear over a telephone, prevalence of smoke, dust, and other like facts. The Court said, in Snyder v. R. R., 25 Wis., 60: “There is a very wide distinction between giving damages for such remote and possible injuries and compensating the owner for the actual depreciation of his property because of its exposure to such hazards and dangers. Whatever may cause the depreciation, the loss to the owner is the same. If in consequence of its exposure to these remote injuries the property is diminished one-half in value, then this decrease in value measures the actual loss to the owner.” And in R. R. v. Hill, 56 Pa. St., 460: “We do not see much difference, in the nature and certainty of the exclusion of the customers of this mill, between an absolute physical obstruction, directly in their way, and others which continually threaten their lives and limbs in the use of the ordinary means of getting there.” This question was carefully discussed in R. R. v. Cont. Brick Co., 198 Mo., 698, with special reference to the exposure of property to fire by the location of the right of way and its proximity to buildings and other inflammable material. The Court said: “A prudent business man would generally prefer to purchase property in which to conduct his business which is not peculiarly liable to destruction by fire, even though the menacing party may be solvent and liable to responsibility in damages.” 10 A. and E. Enc. (2 Ed.), pp. 1117 and 1118, and notes l'and 2, and cases cited. It all comes to this at last, that the landowner is entitled — 164 — “to full and complete compensation, and it must include everything which affects the value of that which is taken in its relation to the entire property,” as said in Abernathy v. R. R., 150 N. C., 97. The Court also said, in Brown v. Power Co., 140 N. C., 333 : “Certainly where, by compulsory process and for the public good, the State invades and takes the property of its citizens in the exercise of its high prerogative in respect to property, it should pay to him full compensation. The best authorities are to that effect. . . . The State has conferred upon the company, to enable it to accomplish these beneficent results, one of the highest and most dangerous of its sovereign powers, that of eminent domain. An essential and elementary condition precedent annexed to the exercise of this power is that the owner of property, who is compelled to surrender it, shall have full compensation.” It was stated in U. S. v. Grizzard, 219 U. S., 180 (5 L. Ed., at 166, 167), that the rule of compensation requires that the landowner should be paid for the part actually taken for the right of way, and in addition thereto justice demands that he also be remunerated for the further loss incurred in the depreciation of what remains of the land which results from such taking, and also in its future use and value, and this loss is not confined to direct physical injury, but the injury should extend to all incidental injuries to the part not taken which are caused by the location of the right of way, and which tend to reduce its value. The Court then says: “To say that such an owner would be compensated by paying him only for the narrow strip actually appropriated and leaving o.ut of consideration the depreciation to the remaining land by the manner in which the part was taken and the use to which it was put would be a travesty on justice.” In order to arrive at this full compensation, the jury must consider the land with its improvements as a whole and the effect thereon of the appropriation of a part for a right of way, with reference, of course, to any loss in value by reason of such taking and the uses to which the land so taken is to be applied. "We so held in R. R. v. Armfield, supra; Brown v. Power Co., supra; R. R. v. Church, supra, and the principle is sustained by numerous decisions in other courts. R. R. v. Hill, 56 Pa. St., 460; R. R. v. Cont. Brick Co., 198 Mo., 698; Foust v. R. R., 212 Pa. St., 215; Rouck v. Cedar Falls, 134 Iowa, 563; R. R. v. Roeder, 30 Wash., 247; R. R. v. L. A. Synod, 20 Idaho, 573; Brainerd v. State, 131 N. Y. Suppl., 221; R. R. v. Chamberlain, 100 Va., 402; Pause v. Atlanta, 98 Ga., 95; Jeffreys v. Osborne, 145 Wis., 351; R. R. v. Memphis, 126 Tenn., 275; R. R. v. White Villa Club, 155 Ky., 453; Nelson v. Atlanta, 138 Ga., 347; R. R. v. Gordon, 184 Ill., 456. As we have shown, we held in Abernathy v. R. R., supra, that the compensation must be full and complete and include everything which affects the value of the property taken and its relation to the entire property affected. Speaking of the method of ascertaining the value and the depreciation, the Court said — 165 — in Brainerd v. State, supra: “It is a matter tbat must be left to tbe judgment of tbe court, but it may be safely asserted tbat no element should be excluded in arriving at tbe market value of tbe premises wbicb it is customary for tbe business world to consider in determining sucb market value, or wbicb an ordinarily prudent man would take into account before' forming a judgment as to tbe market value of tbe property wbicb be is about to purchase.” And in R. R. v. Hill, 56 Pa. St., 460, tbe Court thus referred to tbe same subject: “We regard tbe testimony as but a mode of ascertaining tbe measure of damages, sanctioned by tbe authorities, viz., tbe difference between tbe value of tbe property after tbe construction of tbe railroad and before; tbe amount of depreciation when ascertained by proper tests being tbe amount tbe owner should be entitled to.” But the jury, in fixing tbe value and estimating tbe loss, are not confined solely to a consideration of tbe property in its present state and condition, but may go further and take into consideration tbe uses to wbicb it may be adapted in tbe future, and predicating tbe value upon this also, they will determine what depreciation has resulted by tbe taking and use of a part of tbe property. Mills on Em. Domain, sec. 173. We said in R. R. v. Armfield, supra, quoting in part from Pierce on Railroads, p. 217: “In estimating tbe value, all tbe capabilities of tbe property and all tbe uses to wbicb it may be applied or for which it is adapted are to be considered, and not merely tbe condition it is in at tbe time and tbe use to wbicb it is then applied by tbe owner. Speaking to this same question, Pierce on Railroads, p. 217, states tbat tbe author (Lewis on Eminent Domain) says: ‘The particular use to wbicb tbe land is applied at tbe time of tbe taking is not tbe test of its value, but its availability for any valuable or beneficial uses to wbicb it would likely be put by men of ordinary prudence should be taken into account. It has been well said tbat tbe compensation is to be estimated by reference to tbe uses for wbicb tbe property is suitable, having regard to tbe existing business and wants of tbe community, or sucb as may reasonably be expected in tbe-immediate future. But merely possible or imaginary uses, or tbe speculative schemes of its proprietor, are to be excluded.’ ” In this connection we may well refer to what is said in tbe following cases: “A citizen must surrender bis private property in obedience to tbe necessities of a growing and progressive State, but in doing so be is entitled to be paid full, fair, and ample compensation,'to be reduced only by sucb benefits as are special and peculiar to bis land.” R. R. v. Platt Land, 133 N. C., 266. “It need hardly be said tbat nothing can be fairly termed compensation wbicb does not put tbe party injured in as good condition as he would have been if tbe injury bad not occurred. Nothing short- of this is adequate compensation.” R. R. v. Heisel, 47 Mich., 378. Where, in tbe nature of things, there can be no market value of a piece of land, as separated from an extensive business enterprise in con — 166 — nection with which it is used, its value cannot justly be determined without considering the use to which it has been applied. “The value of the land consists in its fitness for use, present and future; and before it can be taken for public use the owner must have just compensation. If he has adopted a peculiar mode of using that land by which he derives profit, and he is to be deprived of that use, justice requires he should be compensated for the loss. That loss is the loss to himself. It is the value which he has, and of which he is deprived, which must be made good by compensation.” R. R. v. Memphis, supra. We are of the opinion that those called “experts” in this case were competent to give their opinion as to the value of the land or plant and its depreciation by the location of the right of way and the uses to which it was afterwards put by the plaintiff. They were not testifying, it appears, strictly as experts, but with actual knowledge of the land and its improvements, its situation, uses and surroundings, and their several opinions were based upon such knowledge, aided by their long observation and experience in the same kind of business which is carried on by defendant on the premises in question. It would seem that the competency of such evidence was expressly decided in R. R. v. Church, supra, by this Court. But there are other eases equally as strong in support of its competency. Davenport v. R. R., 148 N. C., 287; Sykes v. Payne, 32 N. C., 280; Wade v. Telephone Co., 147 N. C., 222; Cotton Mills v. Assurance Corporation, 161 N. C., 562, where the Court said, at p. 564: “The court erred in refusing to permit the witness Taylor, who had twenty years experience in the cotton mill business, to state whether work of this character was the repair of or an addition to the mill plant. The evidence offered was not a mere matter of opinion, but the result of knowledge and observation by the witness. Davenport v. R. R., 148 N. C., 287; Ives v. Lumber Co., 147 N. C., 306; Morrisett v. Cotton Mills, 151 N. C., 33. It is true, the jury, upon all the evidence, could have drawn their own conclusion on this point. But the evidence of Taylor, if it had been admitted, would have been only a matter for consideration by them, and not conclusive.” As held in R. R. v. Cont. Brick Co., supra, the knowledge and experience of such witnesses, acquired while engaged in the same kind of business, adds weight and trustworthiness to their opinions, and theirs is exactly the kind of knowledge that is needed in order to obtain an intelligent estimate of that “just compensation” called for in a case of this kind. See, also, Jeffreys v. Osborne, 145 Wis., 351; R. R. v. Columbia, etc., Synod, 20 Idaho, 573; R. R. v. Hill, supra. But it is suggested that these supposed elements of damage are common to all persons along the line of railway whose property is similarly circumstanced, that is, there is the same exposure to fire, smoke, noise, dangers, and hazards to persons, as well as property. In the first place, — 167 — there is no evidence that there is any plant, the same as this one or bearing any resemblance to it, on the line of this railway, or, if there is, that it is affected in the same way; but apart from this consideration, the dangers, hazards, inconveniences and annoyances, etc., are not, in such a case as this, to be regarded as in any just or legal sense common to other landowners, and that doctrine should not apply when land is taken and appropriated to a use, as here, which directly injures or damages the property, because of its peculiar nature, though not necessarily in a physical way. As we have already shown, this question is virtually settled by the decision in R. R. v. Armfield, at last term, 167 N. C., 464, where it was said that those uses of the easement acquired by the railroad company which are likely to interfere with the proper enjoyment of the land by its owner, and which sensibly impair its value, should be considered by the jury, and these include jarring, noise, smoke, cinders, and other annoyances of a similar kind arising, from the operation of trains, and risks from fires caused by close proximity to the track. The physical injury or damage to the land not taken would, in a certain sense, be common to all land through which the road would pass, but being a special and distinct injury to this land, it does not, for that reason, destroy or even affect the right to compensation, which is inseparably incident to the right of appropriation to the particular public use. R. R. v. Bluchle, 234 Mo., 471, and cases supra. The law says: “You may have the land or any easement therein which is reasonably necessary for your purpose, but you must compensate the owner, justly and fully, for it and for any damage accruing to the remainder of his property by reason of the use to which you may put it, and because of its injurious effects upon the property.” The damage to the property remaining is considered as much a taking as is the actual appropriation of the part condemned for the right of way,-and the eases above cited sustain this view. It was competent to prove the value of the land, with its improvements, or the entire plant, before and after the taking, as tending to show the depreciation and the amount of compensation. R. R. v. Church, supra; Brown v. Power Co., supra, and Jeffreys v. Osborne, 145 Wis., 351. In the Church case (104 N. C., at p. 529) this Court said: “Unquestionably it was competent to show what the land was reasonably worth before the location of the railroad on it, preparatory to showing what it was worth after the road was constructed and used. This is a common, reasonable, and necessary way of proving the quantum of damages when it appears that the construction and use of the road produces the difference in value,” citing Wood on Railroads, p. 899; 3 Sutherland on Damages, 441. We, therefore, conclude that defendant was entitled to prove that the value of its plant had been appreciably affected to its detriment by the — 168 — noise, smoke, cinders, jarring, discomfort, inconvenience, and other like causes incident to the running of tbe'trains on the right of way, and by the risks and dangers of fire and of injury to employees and their children, and to show, further, that the use of the right of way, because of such things, would disorganize its help and tend to drive its operatives away, by rendering their condition uncomfortable, if not intolerable, and require the defendant to substitute a cheaper and inferior quality of labor, and thereby reduce its output and lower the standard quality of its goods; but proof of the latter should be confined to the general facts, and not descend into particulars, as to how many hands would leave, nor should it extend to an estimate of depreciation in value, based upon a capitalization of pay rolls, which will, as alleged, be incurred by the evil effects of the right of way and the trains upon the employees and their families. This would enter too much into the forbidden domain of conjecture and speculation, even if considered only as bearing upon the question of depreciation alone, or as being an independent element for the assessment of damages. It would be impossible to do more than guess as to how many hands would quit the service, or to Avhat extent the latter would be disorganized, and a definite opinion upon such matters, dealing with the actual figures in the final estimate, would be unsatisfactory, misleading, and dangerous as the basis for fixing the total amount of damage to the plant. Questions may be asked on cross-examination, for the purpose of testing the value of a witness’s testi.mony, which are not permissible on examination in chief by the party calling him. To be sure, even on direct examination he may give the reasons for his opinion, provided those reasons are kept within proper and competent limits, as fixed by the established rules of evidence. An improper reason does not necessarily render the opinion of the witness incamqjetent, as the opinion may be valid and valuable without it, resting, as it may, upon other sufficient and admissible grounds. The party objecting to any of a witness’s reasons which are deemed to be incompetent may ask that they be stricken out and that the jury be instructed not to consider them. The jury, in finding the amount of depreciation in value of the plant by the location of the right of way and the operation of trains thereon, would naturally adopt neither the opinions of men who are sanguine in their estimate of value nor of those who are overcautious, but of prudent, conservative, and practical men who have knowledge and also have had experience and an opportunity of forming correct opinions and are influenced in their judgment only by careful thought and deliberation. R. R. v. Dudley, 22 N. J. L., 503. It is proper, therefore, that they should have the means of knowing the qualification of the witness to give an opinion worthy of their consideration — his intelligence, of course, and the extent of his knowledge and experience. The opinion of an — 169 — ignorant man would be of no value whatever. "We need not say whether an “expert” or one having no knowledge of the facts — that is, the situation of the property, its surroundings, and other pertinent matters, but merely having had experience in the management or operation of cotton mills — should be allowed to express an opinion upon the question of value or depreciation, as the point is not presented, the witnesses who testified in this case appearing to have had knowledge of those facts. . We are inclined to the opinion that some of those who testified as “experts,” and perhaps some of the other witnesses, were allowed to go too much into detail and their testimony permitted to take too wide a range, by which the minds of the jurors may have been led astray by collateral and irrelevant matters; but the objections interposed to this class of testimony may be too general for notice. The incompetent parts of a mass of testimony, some of which is competent, should be clearly specified. S. v. Ledford, 133 N. C., 714; Bank v. Chase, 151 N. C., 108; S. v. Stewart, 156 N. C., 639; Ricks v. Woodard, 159 N. C., 647. Our final conclusion is that, while the petition is disallowed, because there was error, the case will hereafter be tried in accordance with the principles stated in this opinion. The writer thought, when the case was here before, that the land was not the subject of condemnation at all, under our statute, and, therefore, his attention was not specially directed to the other questions we have discussed, and while he concurred in the result, he can well see now, after receiving more light upon the subject, that, because of the importance and intricacy of the questions, the reasons leading up to that result should be stated more fully and with closer reference to the facts, as they appear in the record, for future guidance in the case. Petition dismissed.