Lambeth v. Southern Power Co., 152 N.C. 371 (1910)

April 20, 1910 · Supreme Court of North Carolina

152 N.C. 371

D. H. LAMBETH v. SOUTHERN POWER COMPANY.

(Filed 20 April, 1910.)

1. Rights of Way — Permanent Damages — Generally Increased Values — Evidence.

In an action to recover damages of defendant for a permanent appropriation of a right of way over plaintiff’s lands, it is not competent for this defendant to show the generally increased value of lands after the construction of defendant’s overhead electric system, common to the entire community.

2. Rights of Way — Permanent Damages — Measure.

The measure of permanent damages against this defendant for appropriating a right of way over plaintiff’s lands for the construction of an electrical overhead system is the difference between the fair market value of the land before the right of way was taken and its impaired value, directly, materially and proximately resulting to plaintiff’s land by the placing of the power line across the premises in the manner, and to the extent, and in respect to the uses for which the easement was acquired.

3. Same — Imaginary Causes.

The charge to the jury, that they may not allow damages based upon unknown or imaginary contingencies or events, eliminates the objection by defendant, in this case, that the jury might have considered the possible dangers from wires falling from its overhead electrical system on plaintiff’s land, in assessing permanent damages.

Appeal from Long, ,at January (Special) Term, 1910, of DAVIDSON.

Civil action to recover permanent damages on account of tbe entry and appropriation by defendant of plaintiff’s lands.

Tbe right of condemnation is not in question, and tbe only issue submitted is as follows: What compensation, if any, is plaintiff, S. A. Lambeth, entitled to recover of defendant company for entering upon tbelands of tbe plaintiffs, and for tbe right and privileges across ber lands, and permanent appropriation thereof for tbe purposes of the defendant, as alleged in tbe answer, for a distance of fifteen (15) feet from center of towers from each side, making a distance of thirty (30) feet wide along tbe line over plaintiff’s property?

From tbe judgment rendered, tbe defendant appealed.

JS. E. Baperior plaintiffs.

’Walser & Walser for defendant.

Brown, J.

Tbe exceptions to the evidence are, in our opinion, without merit. Tbe defendant could not be permitted to show the' increased value of tbe land a year or more after defendant’s line was constructed.

Tbe enhanced value, it is not claimed, was tbe result of erecting towers on the land and constructing an electric system overhead. Benefits, considered in assessing such damages, must be those in a measure peculiar to tbe landowner and not common to tbe entire community. Tbe exceptions to tbe charge cannot be sustained.

His Honor correctly instructed tbe jury when be charged them that tbe “measure of recovery is tbe difference between tbe fair market value of tbe land before tbe right of way and easement was taken, and its impaired value, directly, materially and proximately resulting to plaintiff’s land by placing defendant’s power line across ber premises in tbe manner and to tbe extent and in respect of tbe uses for which tbe easement is acquired.”

We are also of opinion that the alarm of defendant’s counsel, that the jury might consider possible danger from falling wires as an element of damage, should have been allayed when his Honor told'the jury: “You cannot allow anything as damages, based upon unknown or imaginary contingencies or events, or such as may not reasonably and naturally be expected to occur and cause damage to the plaintiff — not other persons — from the construction, operation and maintenance of defendant’s line for the uses for which it is constructed.”

The entire charge is an admirable instruction upon the law governing the assessment of damage in cases of this character. Lewis on Em. Dom. (2 Ed.), 478-462; Brown v. Power Co., 140 N. C., 333; Abernethy v. R. R., 150 N. C., 97; 15 Cyc., 684.

No error.