Metropolitan Sewerage District of Buncombe County v. Trueblood

JOHNSON, Judge. On appeal, petitioner excepts to and assigns as error the rulings by the court allowing the challenged photographs into evidence and the limiting instructions accompanying their admission. Petitioner also excepts to and assigns as error the admission into evidence of testimony by respondents’ witness concerning the construction work and excavation as it was in progress. Petitioner contends that the evidence objected to shows conditions that existed on respondents’ property during and after the construction of the sewer line. Petitioner argues that this evidence is irrelevant to the issue of compensation for the appropriation by petitioner of the sewer easement over respondents’ property and that it was prejudicial and should therefore have been excluded. Respondents argue that the photographs objected to were properly admitted for the purpose of illustrating the testimony of the witness. Respondents argue that the petitioner was insulated from any prejudicial effect of the challenged photographs by the court’s limiting instructions and by the opportunity to use any discrepancy in the photographs as a basis for cross-examination. Respondents also argue that the admissibility of illustrative evidence is a matter within the discretion of the trial court and that rulings on such matters will not be disturbed on appeal absent a showing of an abuse of discretion. With respect to the challenged testimony, respondents argue that it concerned a relevant personal observation of conditions on their property and was designed to aid the jury in its determination of the amount of damages. All of the respondents’ arguments are premised on the key assumption that the issue, with respect to which the challenged evidence is allegedly relevant, was properly before the court. We hold that it was not. An appeal to Superior Court from a condemnation proceeding puts the issue of compensation for damages resulting from the taking before the court de novo. Proctor v. Highway Commission, 230 N.C. 687, 55 S.E. 2d 479 (1949). It is well settled in this state that the proper amount of compensation to be awarded is the difference in the value of the property immediately before and immediately after the taking. City of Greensboro v. Sparger, 23 N.C. App. 81, 208 S.E. 2d 230 (1974). Compensation must be determined as of the time of the taking. Id.; DeBruhl v. Highway Commission, [694] 247 N.C. 671, 102 S.E. 2d 229 (1958). Occurrences or events that may affect the value of the property subsequent to the taking are not properly considered in an assessment of damages in a condemnation proceeding. City of Greensboro v. Sparger, supra. Here, the challenged testimony is in no way relevant to the issue of compensation as defined above. Greensboro v. Garrison, 190 N.C. 577, 130 S.E. 203 (1925), cited by respondents in support of their position, involves a challenge to the opinion testimony of a witness as to the value of property before and after the installation of a sewer line. There, it was the witness’ expression of an opinion that was challenged and not, as here, the relevance of testimony to the issue of compensation. A witness’ opinion as to the value of land is clearly relevant to the issue of compensation for a taking resulting from a condemnation. However, testimony concerning construction subsequent to the taking and subsequent to the time fixed for determining compensation clearly is not relevant to that issue and respondents’ reliance on Greensboro v. Garrison, supra, is misplaced. Similarly, the photographs submitted as illustrative of respondents’ witness’ testimony are not relevant to the issue of compensation for the taking of the sewer easement. Like the challenged testimony, the photographs tend to show damages resulting from petitioner’s construction activities after the taking had already occurred. Such damages may be considered in a further nuisance or trespass action but are not cognizable in the present case. City of Greensboro v. Sparger, supra. Moreover, any probative value that the photographs may have had with respect to the proper amount of damages was nullified by the trial court’s instructions limiting the application of the evidence only to issues not properly before the court. We conclude that the challenged evidence was improperly admitted with respect to the issue of just compensation for the taking by condemnation and could have unfairly prejudiced the jury. Having so concluded, we need not address the other argument advanced by petitioner in this appeal. We therefore vacate the verdict and the judgment based thereon and remand the cause for a new trial in accordance with this opinion. [695] New trial. Judges Whichard and Eagles concur.