Riverview Milling Co. v. State Highway Commission, 190 N.C. 692 (1925)

Dec. 16, 1925 · Supreme Court of North Carolina
190 N.C. 692


(Filed 16 December, 1925.)

1. Evidence — Witnesses—Cross-Examination.

One of tbe purposes of cross-examining a witness is to render more definite and certain bis testimony, and to expose any bias or uncertainty tbe witness may bave with regard to bis statements made on bis direct examination, so that tbe evidence will be more valuable to tbe jury in determining tbe facts at issue.

*6933.Same — Rights of Party.

The opposing party has a right to cross-examine the witnesses testifying against him, and such is not a mere privilege.

3. Instructions — Construed as a Whole — Appeal and Error.

An instruction in an action by the owner to recover damages for the taking of his lands for a public use by condemnation, is not held for reversible error, when from the charge as a whole in its connected parts, it appears that the court has fully instructed them upon the measure of damages in terms they could not reasonably have misunderstood.

4. Highways — Condemnation—Damages—Loss of Profits.,

The owner of a water mill acquiring rights of ingress and egress for his customers upon the lands of others and the construction of a bridge and maintenance of a ferry situated to command a large patronage for his mill, brought an action against the State Highway Commission for damages to these right of ways by the building of a State highway and bridge, and alleged his land on which the mill was operated became greatly less profitable and sought to recover damages for the taking of his property: Held, damages to his property and property rights were the sole ground of his recovery of damages, and loss of profits to his mill was speculative and too remote.

5. Instructions — Statutes—Incidental Matters — Special Requests — Appeal and Error.

While the judge is required by C. S., 564, to instruct the jury as to the law arising on the evidence in the case, it is not error for him to omit to charge upon purely incidental matters, and his failure to do so in the absence of a special request for correct special instructions, is not reversible error.

Appeal by petitioner from Stanly Superior Court. McElroy, J.

Proceedings instituted before tbe clerk to assess damages in favor of tbe petitioner on account of tbe taking of petitioner’s property for a State highway, and damages to other property not taken. From a judgment on a jury verdict in favor of respondent, petitioner appeals. No error.

Tbe petitioner is tbe owner of certain properties situated on Rocky River in tbe counties of Stanly and Anson. On this property is situated a roller mill and mills, for meal, feed and other grain products, operated by water power supplied by dams across Rocky River. At tbe point where tbe mills are situated there is an island in tbe river extending above and below tbe mills. Tbe old highway leading from Salisbury to Cberaw crosses Rocky River at tbe place where tbe mills are situated. About half a mile south of tbe mills and at tbe lower point of tbe island tbe petitioner also owned and operated a ferry, as well as a low-water toll-bridge. This ferry bad been owned and operated by tbe petitioner, and those under whom it claims, for a long time. Tbe ferry was used in case of high water when vehicles could not ford tbe river at *694tbe mills. Petitioner bad also certain right of ways over wbicb it maintained roads leading from tbe old Salisbury and Cheraw highway at tbe mills to tbe ferry, on each side of tbe river. "When tbe river was up, travel would leave tbe regular highway and go by petitioner’s private roads to tbe ferry and cross tbe river and then by another private road of tbe petitioner, back to tbe highway. An island in Rocky River, immediately below tbe ferry, left only a narrow opening between tbe two islands through wbicb tbe ferry was operated. When tbe river was low, it could be forded with wagons and buggies at tbe mills and tbe ferry would not be operated on account of tbe shoals in tbe river. When automobiles came into use they could not ford tbe river in as deep water as wagons and buggies, and, usually, when they could not cross tbe river on tbe ferry, because of shallow water, there was enough water to prevent them from fording tbe river. This condition caused tbe petitioner to erect a low-water bridge at tbe ferry site, using, on both sides of tbe river, tbe same entrance to tbe bridge and tbe ferry. This was a narrow pass-way, some 20 or 30 feet wide, leading from tbe high land to tbe water’s edge. "Low vehicles could cross on tbe low-water bridge, when tbe water was low, but when it rose and was over tbe bridge, they used tbe ferry. Petitioner offered evidence tending to show that by these two methods it was able to take care of tbe travel practically all tbe time, so that in time of both high and low water, tbe travel must needs go by tbe petitioner’s mills. This gave tbe petitioner’s mills much advertisement. Petitioner kept and successfully served a large volume of trade. Tbe petitioner did not own any land at the ferry, except tbe right of ways and privileges of maintaining and operating tbe ferry. On tbe Stanly side of tbe river, petitioner’s private road passed from tbe mill on beyond tbe ferry into tbe lower section of Stanly County whence came a great volume of patronage to tbe petitioner’s mill.

Petitioner contends that, in 1921 tbe State Highway Commission decided to build a highway bridge across Rocky River between tbe counties of Anson and Stanly, and that its engineers located this highway bridge on tbe site of petitioner’s ferry and low-water bridge, and that tbe State Highway Commission did not attempt to buy. or condemn tbe location, but proceeded to build its bridge and complete it and open it for travel 22 May, 1923. Petitioner further contends that, in building this bridge and its approaches, tbe respondent cut off tbe road leading from petitioner’s mill to tbe ferry and into tbe lower part of Stanly County; that where tbe bridge crosses tbe road a fill 23% feet high was made, and that tbe fill and piers leading from tbe road to tbe river occupied petitioner’s right of way wbicb went to tbe ferry and bridge; that on tbe Anson side tbe respondent constructed a pier in petitioner’s road as it led *695from the river to tbe high, land; that respondent utilized or rendered-useless all the property petitioner had at that location, cutting off its roads that led to the low-water bridge on both sides and made it impossible on the Stanly side to get from the highway bridge down to the road leading from the bridge to the mill, and made it impossible for its ' customers coming from the lower part of the county to the mill to use the old road. It was'further contended that the customers coming from the lower part of Stanly County were thus required to make a wide detour, several miles further than the original way of travel, and those-from Anson County that crossed on the highway bridge had to go a mile or more by the new roads into Stanly County and then .turn to the mill.

The petitioner claims damages for the taking of its property and property rights and for the damage resulting to its property not so taken.

The defendant contended that, while the petitioner owned the property and rights alleged in the petition, it did not locate its highway bridge on the identical site of the low-water bridge and ferry and that the petitioner used its ferry up to and including the day on which the highway was opened for travel and that petitioner was not damaged, for that the general and special benefits accruing to petitioner from the building of the highway were more than sufficient to offset any damages claimed, and that the real claim of petitioner was not for compensation for taking property and not for damages directly resulting to other property, but was an effort to obtain reimbursement for the inevitable result flowing from the building of a modern dependable highway, including a concrete bridge across Rocky River, so constructed that its floods would not interfere with the travel, but interfered with what defendant terms, “petitioner’s private monopoly,” which it had enjoyed on account of the lack of transportation facilities by which competition with it could function.

The verdict was as follows:

“1. What damage, if any, is the petitioner entitled to recover of the defendant by reason of the appropriation of a portion of the land of the petitioner by the defendant for the use of the State highway and bridge described in the petition? Answer: Not any.

“2. What benefit either general or special, or both, if any, has accrued to the lands of the petitioner by reason of the construction of the State highway and bridge described in the petition? Answer: Nothing.”

There was no exception to the issues submitted.

Manly, Hendrem, & Womble and B. L. Smith & Son for petitioner.

Assistant Attorney-General Boss for respondent.

*696Yarser, J.

Tbe petitioner assigns error (1, 2, 3) in permitting counsel for respondent to ask tbe witness Hathcock, president of petitioner, certain questions as to wbat, in bis opinion, would have been petitioner’s damages if tbe State bigbway bridge bad been built below petitioner’s ferry. Tbe witness answered tbat be did not tbink tbe ferry would be worth mucb if a free way to cross bad been provided. Tbe same kind of evidence was elicited on redirect examination. Tbis witness bad previously given bis opinion as to tbe damages suffered by petitioner on account of tbe building of tbe bridge. Tbe same kind of evidence was elicited from petitioner’s witness, Freeman, and petitioner objected. Tbe damages sought was for tbe taking of property, but tbe evidence for petitioner on direct examination tended to show tbat tbe value of tbe property taken, and tbe resultant damages to its other property was considerable because tbe bigbway bridge rendered it inaccessible to tbe trade, and reduced its value seriously.

It was not a question of wbat tbe State Highway Commission might have done, or bow mucb petitioner would have been damaged under other circumstances, but it was a question of damages, certain, definite, not remote, and compensation for property, and property rights taken. Tbe office of cross-examination is to sift, and test, and purge from tbe adversary’s witnesses tbe elements composing their estimates of damages.

Tbe questions were competent on cross-examination. They show a skillful appreciation and use of tbe advocate’s valuable art of cross-examination.

Tbe right to have an opportunity for a fair and full cross-examination of a witness upon every phase .of bis examination-in-cbief, is an absolute right and not a mere privilege. S. v. Hightower, 187 N. C., 300, 310; Mining Co. v. Mining Co., 129 Fed., 668. Cross-examination “beats and boults out tbe truth mucb better than when tbe witness only delivers a formal series of bis knowledge without being interrogated.” (Sir Matthew Hale, L. C. J. History of tbe Common Law, cb. 12.) In S. v. Morris, 84 N. C., 764 (1881), Ruffin, J., says: “All trials proceed upon the' idea tbat some confidence is due to human testimony, and tbat tbis confidence grows and becomes more steadfast in proportion as tbe witness has been subjected to a close and searching cross-examination; and tbis because it is supposed tbat such an examination will expose any fallacy tbat may exist in tbe statement of tbe witness, or any bias tbat might operate to make him conceal tbe truth; and trials are appreciated in proportion as they furnish tbe opportunities for such critical examination.” Tbe questioning was also proper to elicit whether tbe witnesses bad any bias. Wigmore on Evidence, (2 ed.), par. 1367 and note; Lock-hart’s Handbook on Evidence, see. 270; Toole v. Michael, 43 Ala., 406, 419.

*697In Rice v. R. R., 167 N. C., 1, tbe court allowed tbe question: “If you clean tbe sewer out, will it drain tbe land ?” There was evidence that tbe drain pipes bad been allowed to clog up, and tbat damages resulted therefrom. It was allowed as tending to fix tbe cause of tbe damage. In tbe case at bar tbe converse was clearly competent.

Tbe petitioner in its fourth assignment of error complains at tbe charge to the jury in the following excerpt: “Tbat plaintiff’s charter as a ferryman was granted to, held and exercised by, tbe plaintiff, subject to tbe inherent right of tbe State to erect a public bridge across Eocky Eiver at any time and place it might desire, regardless of tbe effect it might have on tbe tolls and emoluments received by tbe plaintiff from said ferry and toll bridge.”

It is contended tbat tbe words “at any time and place,” in its connection, led tbe jury to believe tbat tbe State Highway Commission could take petitioner’s property without compensation.

Tbe charge must be considered contextually and not disjointedly. In re Creecy, ante, 306; Davis v. Long, 189 N. C., 129, 133; Mangum v. R. R., 188 N. C., 689, 701; Cobia v. R. R., 188 N. C., 487, 493; Exum v. Lynch, 188 N. C., 392; In re Hardee, 187 N. C., 381; S. v. Dill, 184 N. C., 645, 650; S. v. Jenkins, 182 N. C., 818, 820; S. v. Jones, 182 N. C., 781, 787; White v. Hines, 182 N. C., 275, 289; S. v. Chambers, 180 N. C., 705, 708; Haggard v. Mitchell, 180 N. C., 255, 258; In re Hinton, 180 N. C., 206, 214; S. v. Wilson, 176 N. C., 751, 754; Lumber Co. v. Lumber Co., 176 N. C., 500, 503; Taylor v. Power Co., 174 N. C., 583, 588; Leggett v. R. R., 173 N. C., 698, 699; Kistler v. R. R., 171 N. C., 577, 579; Deligny v. Furniture Co., 170 N. C., 189, 203; Montgomery v. R. R., 169 N. C., 249; Padgett v. McKoy, 167 N. C., 504, 507; McNeill v. R. R., 167 N. C., 390, 395; S. v. Bobertson, 166 N. C., 365; S. v. Bay, 166 N. C., 420, 434; Hodges v. Wilson, 165 N. C., 333; Bird v. Lumber Co., 163 N. C., 162, 167; S. v. Vann, 162 N. C., 541; S. v. Tate, 161 N. C., 280; S. v. Exum, 138 N. C., 599; S. v. Lewis, 154 N. C., 632, 634; Kornegay v. R. R., 154 N. C., 389, 392; 2 Thompson on Trials, sec. 2407.

Measured by this rule or by tbe language itself, tbe charge could not have any prejudicial effect. Petitioner does not challenge tbe correctness of tbe proposition of law contained in tbe excerpt, but fears tbat tbe reference to tbe right of tbe State to exercise its sovereignty through tbe respondent at any time and place, might have prejudiced it. Tbe charge is clear and full as to damages, expressly stating tbat tbe petitioner was entitled to the fair market value of the property taken and to all tbe damages flowing proximately and directly to its other property from such taking.

*698In tbe light of the careful and painstaking explanation of the plaintiff’s right to recover damages, which appears in the charge, no possible prejudice could have resulted in this regard to the petitioner.

In petitioner’s fifth assignment of error, the petitioner complains because the court, in giving to the jury the measure of damages to the property not taken, limited the measure to the impairment in value flowing directly and proximately to the plaintiff’s property by reason of the taking for the construction of a bridge and highway at the point where it was constructed. The respondent in locating its road did not touch the 23 acres of land comprising the petitioner’s mill site. Its location was some 1500 feet from it. The witness Hathcock, petitioner’s president, testified in specifying his damages by way of depreciation of property not taken, says that it was caused by the fact that the highway was built leaving petitioner’s mill property remote from it — no way to get out without greatly increased distance — puts petitioner’s patronage in closer touch with its competitors who are on the highway. The highway provided a shorter way of travel somewhere else and a longer way to petitioner’s mill. If the highway had been located right by petitioner’s mill, it would have been a fine advertisement for it. Petitioner had been deprived of the public road; its income taken; the distance for its travel to go in and out increased, as well as the difficulty. “There is no other damage done to the mill property, except the fact that it was left off of the new road, that I think of right now.”

In the light of these contentions and the evidence relating thereto, it was necessary for the court to charge the jury so that they could separate the damages, if any, resulting to petitioner’s property rights and its damages claimed which are the necessary results of the changing conditions in business life. In Elks v. Comrs., 179 N. C., 241, the Court, through Clark, C. J., affirming Lanier v. Greenville, 174 N. C., 313, says: “We have adhered to the rule that, in the assessment of damages for land taken for public improvement, the measure of damage is the difference in value before and after taking.” Anent a similar contention in that case, the Court approving the instruction directing the jury not to take into consideration the fact that plaintiff’s home is off the road, because the action was not brought by reason of the house being cut off of the road, but by reason of taking a portion of his land through which the road passes, says: “The plaintiff still has the old county road to use as he did previously to laying out this road, except that he-himself has built a tobacco barn across it, as shown on the map, and in that respect he can recover no damage by reason of laying out the new road. If he could, then any other person living 4 or 5 miles, or farther, from the new road, could contend that they were entitled to damages because the new road was not constructed by their home.”

*699- There is ample authority given by the pertinent statutes, which are: Public Laws 1921, chap. 2 (including O. S., chap, 33, Eminent Domain) ; Public Laws, Extra Session, 1921, chap. 7; Public Laws 1923, chaps. 160, 247, 263; Public Laws, Extra Session, 1924, chap. 16; Public Laws 1925, chaps. 45 and 133. When such authority is used with due care and diligence in its performance, the respondent is not responsible for purely consequential damages, such as contended for by the petitioner in the deflection of its patronage and depriving it of a highway by its mill door, and the increase in its distance, from a dependable all-weather, hard-surfaced road and modern bridge, free and without tolls. Dorsey v. Henderson, 148 N. C., 423; Hoyle v. Hickory, 164 N. C., 79; Wood v. Land Co., 165 N. C., 367; Munday v. Newton, 167 N. C., 656.

We conceive the charge in its entirety to comply with the rule laid down in R. R. v. Armfield, 167 N. C., 465; R. R. v. McLean, 158 N. C., 498; Lambeth v. Power Co., 152 N. C., 371; Abernathy v. R. R., 150 N. C., 97; Brown v. Power Co., 140 N. C., 333; Lloyd v. Tenable, 168 N. C., 531, and in R. R. v. Mfg. Co., 169 N. C., 156, as applying to the instant case. The charge of the court meets the rules laid down in these well-considered cases, in so far as the facts are similar. The test is the effect of the taking on the value of the property connected with the property taken. It is pecuniary and not sentimental, problematical or uncertain, • and does not include the income dependent upon the trade or custom of a flour mill; but in so far as these elements affect and diminish the value of the property as a direct and proximate result of the taking, they are competent, and the charge of the court below so allowed the jury to apply the evidence, if accepted by it.

Petitioner assigns error for that the court failed to instruct the jury on certain incidental phases of the evidence, such as the nature and value of the franchise and easements owned by petitioner, and taken by respondent, and as to the necessity of the effort to agree with the owner. These questions were incidental and not such as to come within the duty of the Court under 0. S., 564. The law applicable to the determinative contentions arising upon the evidence has been given (Richardson v. Cotton Mills, 189 N. C., 655; S. v. Thomas, 184 N. C., 757), and the careful and painstaking effort of the learned trial judge to comply with his duty in the instant case, is such as not to cause prejudice to petitioner’s rights by any omission of material matter necessary for a comprehensive understanding by the jury of the principles laid down for their guidance, and meets fully the requirement in Butler v. Mfg. Co., 182 N. C., 547; Real Estate Co. v. Moser, 175 N. C., 259; Jarrett v. Trunk Co., 144 N. C., 299; Book v. Horton, ante, 184.

*700If the petitioner desired further instructions, or a particular phase of the testimony or contentions to be presented to the jury, or more fully explained to them, it was its duty to submit special prayers for instructions-to the desired effect. Trust Co. v. Yelverton, 185 N. C., 314; Indemnity Co. v. Tanning Co., 187 N. C., 190; Construction Co. v. R. R., 185 N. C., 43; Currie v. Malloy, 185 N. C., 206.

We can perceive in the charge and in the conduct of the trial, no prejudicial error. Therefore, let it be certified that there is

No error.