Duke Power Co. v. Parker

BROCK, Judge. Petitioner assigns as error the instructions of the trial judge to the jury upon the measure of damages applicable to the condemnation of an easement for transmission lines. Defendant argues that the trial judge, in effect, instructed the jury to arrive at its determination of damages as though the fee title to the right-of-way was being condemned. Petitioner cites Power Co. v. Rogers, 271 N.C. 318, 156 S.E. 2d 244. In our opinion the error in Power Co. v. Rogers is not present in the case before us. We agree with petitioner that the instructions given by the trial court would have been more satisfactory had they included the rule as stated in Light Co. v. Carringer, 220 N.C. 57, 16 S.E. 2d 453, as follows: “The measure of permanent damages for the appropriation of a right of way for the construction of an electrical overhead system is the difference between the fair market value of the tract as a whole before the right of way was taken and its impaired market value directly, materially and proximately resulting to the respondents’ land by the placing of a power line across the premises in the manner and to the extent and in respect to the uses for which the easement was acquired.” Nevertheless, we find that the trial judge instructed as follows: [245] “Now, the Court instructs you that the yard stick or guide to be used in determining what the fair and ample compensation for the taking of the property of the respondents in this case constitutes the difference between the fair market value of the entire tract of land which was some 88 acres immediately before this property was taken and its fair market value of the property immediately after the right of way was taken.” Further in the charge the trial judge instructed: “Members of the jury, in arriving at the fair market value of the tract of land immediately after the taking, you will consider the fact that the Power Company is taking only an easement in the land appropriated rather than a fee simple title.” We recognize petitioner’s criticism of certain portions of the judge’s charge and conceded technical defects. However, when we read the charge as a whole, as we must do, it is our opinion that the jury understood they should not award damages as though the fee title in the right-of-way was being condemned, but should award only those damages resulting from the imposition of the easement upon the property. No error. Judges Parker and Hedrick concur.