In re the Proceedings by the City of Greensboro for Condemnation of a Right-of-Way across property of Flinchum

BROCK, Chief Judge. The parties stipulated in a pre-trial order that the only issues before the trial court were the following: (1) Did the City of Greensboro abuse its discretion and act arbitrarily and capriciously in condemning the right-of-way across the property of the respondents ? (2) What amount of damages, if any, are the respondents, Rachel E. Flinchum and husband, James W. Flinchum, entitled to recover as just compensation for the taking of the right-of-way across their property? The question of arbitrariness on the part of the City of Greensboro must be viewed as two separate assignments of error. Respondents contend that (1) the question of arbitrary and capricious action on the part of the City of Greensboro should have been submitted to the jury, and (2) that the trial judge committed error in finding that the City of Greensboro did not act arbitrarily in the condemnation of the right-of-way across respondents’ property. In an appeal to the Superior Court from a resolution of condemnation by a city, the question of whether the city acted arbitrarily and capriciously in its determination of the site to be condemned is a preliminary question of fact to be determined by the trial judge. Only the trial of the issue of damages is required to be de novo by a jury. See G.S. 40-20 and G.S. 160A-256. Although it seems that the trial judge may, in his discretion, submit some or all of the preliminary questions of fact to the jury, he is not required to do so. In an appeal wherein it was contended that the Housing Authority acted arbitrarily and capriciously in selecting the site to be condemned, our Supreme Court said: “Conceding, as we may, that the issuable question thus presented was a question of fact reviewable by the presiding Judge (citations omitted), nevertheless it was within the discretionary power of the Judge to submit the question to the jury for determination. (Citations omitted.)” In re Housing Authority, 235 N.C. 463, 70 S.E. 2d 500. [127] The trial judge did not commit error in failing to submit this issue to the jury. This portion of the assignment of error is overruled. Respondents also contend that the trial judge committed error in failing to find that the City of Greensboro acted arbitrarily in its condemnation of a specific portion of respondents’ property rather than along two alternative routes offered by respondents. Where an administrative agency or municipality has been granted the power of condemnation, the choice of a route or site is primarily within its discretion and will not be reviewed on the ground that another route may have been more appropriately chosen, unless it appears that there has been an abuse of discretion. In this case, the trial judge made findings of fact, based upon the reports of two engineers, that the proposed route of condemnation was preferable to either of the two routes proposed by the respondents due to the impracticality of installation and future maintenance of the line. The trial judge then concluded, as a matter of law, that the City of Greensboro did not abuse its discretion or act in an arbitrary or capricious manner in condemning the right-of-way across respondents’ property. The facts found, based upon competent evidence, support the conclusion of law and are, therefore, conclusive. This assignment of error is overruled. Respondents’ appeal to the Superior Court presented for trial de novo by jury the issue as to the amount of damages respondents are entitled to recover as a result of the condemnation. “ . . . [W]hen either party to a condemnation proceeding appeals to the Superior Court in term and demands that the damage be determined by a jury, the trial must proceed in the Superior Court in so far as the question of damages is concerned as though no commissioners of appraisal had ever been appointed. This being true, it necessarily follows that the Superior Court at term is vested with authority to enter judgment for the landowner for the amount of damages fixed by the verdict of the jury, regardless of whether the same be greater or smaller than the sum originally awarded by the commissioners of appraisal, and regardless of whether the landowner or the condemnor took the appeal.” Proctor v. Highway Commission, 230 N.C. 687, 55 S.E. 2d 479. See G.S. 40-20. [128] The record discloses that the appraisers assessed damages in the amount of $944.00. The jury, after hearing the testimony of respondents’ witnesses, each witness giving his opinion as to the extent to which respondents’ property had been damaged, rendered a verdict in the amount of $1250.00. The trial judge rendered judgment accordingly. Respondents have availed themselves of their procedural statutory rights and have obtained compensation as prescribed by statute. Absent error at the trial de novo, the judgment must be affirmed. Respondents contend the trial court committed error when it excluded witness Hull’s testimony based upon its conclusion that the witness did not show an adequate knowledge of the value of the property at the time and, therefore, did not qualify as being able to give an opinion upon the value of the property. “Objection to the competency of a witness must be made in the trial court by a motion for the judge to pass upon the competency. The question must be left ‘mainly, if not entirely,’ to the discretion of the trial judge, and his decision is not reviewable except, perhaps, for a clear abuse of discretion, or where the ruling is based on an erroneous conception of the law. Stansbury, N. C. Evidence 2d, § 55.” State v. Fuller, 2 N.C. App. 204, 162 S.E. 2d 517. Other witnesses for respondents testified and gave opinions as to the value of the land; their testimony was not stricken from the record. This assignment of error is overruled. For the reasons stated, we find that respondents received a fair trial, free from prejudicial error. No error. Judges Morris and Carson concur.