Board of Transportation v. Gragg, 38 N.C. App. 740 (1978)

Nov. 21, 1978 · North Carolina Court of Appeals · No. 7828SC134

38 N.C. App. 740

BOARD OF TRANSPORTATION v. RUBY GRAGG

No. 7828SC134

(Filed 21 November 1978)

Appeal and Error § 6.9— admissibility oí evidence — rule of damages — pretrial orders — no immediate appeal

Pretrial orders declaring certain evidence admissible or inadmissible and purporting to fix the rule of damages at the trial are subject to later modification and are not immediately appealable.

APPEAL by defendant from order of Baley, Judge, entered 4 November 1977 in Superior Court, BUNCOMBE County. Heard in the Court of Appeals 14 November 1978.

After a pretrial hearing in this condemnation proceeding, the trial judge made the following pertinent conclusion of law:

That evidence of an oral understanding or agreement with an adjoining landowner for access to subject property is not admissible for the purpose of showing a reasonable probability of securing access to the property nor the reasonable probability of use of the Defendant’s property in conjunction with the adjoining property to provide such access for the purpose of showing the effect of said promise and probability upon the market value of the Defendant’s property prior to the date of taking because such evidence is too remote, contingent and speculative to be considered in determining the market value of property immediately prior to the date of taking, and such property must be valued without access prior to the date of taking.

Defendant purports to appeal from the following pretrial order entered pursuant to the foregoing conclusion of law:

That Defendant’s motion to admit evidence of the alleged reasonable probabilities of access as above described and said probabilities’ effect upon the market value of the property prior to the date of taking is denied and the jury cannot consider said evidence in determining just compensation in the trial of this case.

Attorney General Edmisten, by R. Bruce White, Jr., Senior Deputy Attorney General and Guy A. Hamlin, Assistant Attorney General, for the State.

Patla, Straus, Robinson & Moore, by Jones P. Byrd, for the defendant appellant.

HEDRICK, Judge.

A pretrial order declaring certain evidence admissible or inadmissible is indeterminate and subject to later modification. Knight v. Duke Power Co., 34 N.C. App. 218, 237 S.E. 2d 574 (1977); Davis Realty, Inc. v. City of High Point, 36 N.C. App. 154, 242 S.E. 2d 895 (1978). The same is true of a pretrial order purporting to fix what the rule of damages should be at the trial. Green v. Western & Southern Life Insurance Co., 250 N.C. 730, 110 S.E. 2d 321 (1959). Such orders are not immediately ap-pealable. 1 Strong’s N.C. Index 3d, Appeal and Error, § 6.9.

Appeal dismissed.

Judges MORRIS and MARTIN (Harry C.) concur.