Pritchard v. . Williams , 178 N.C. 444 ( 1919 )

ALLEN, J., dissenting. This is a petition to rehear the well considered opinion, 176 N.C. 108, delivered by Brown, J., for a unanimous Court, at Fall Term, 1918.

After the fullest consideration, we think that our former opinion should be adhered to in every respect, and for the reasons therein so convincingly set forth. Issue three suggested in the addenda to that opinion, "What is the value of such permanent improvements?" we think might be amended in accordance with the provisions of Rev. 655, to read, "To what amount is the value of the premises increased by such permanent improvements?" though doubtless the trial judge would, without this suggestion, have instructed the jury that such was the meaning of the issue suggested.

Under the provisions of Rev. 494, the plaintiff filed in this cause a bill of particulars as to the permanent improvements for which he sought compensation. We do not think that in this case, in which we have reversed the nonsuit below, we need pass upon what are and are not permanent improvements. What are permanent improvements is a mixed question of law and fact, depending largely upon the circumstances of each case, and the instructions of the court, if excepted to, will come up on appeal. Some improvements, which might be deemed permanent in certain surroundings, would be of no value in other circumstances, because unsuitable for the ordinary use of the property.

The measure of compensation is nowhere better discussed than in 14 R.C.L., p. 25, sec. 15, in the course of which it is said: "The measure of compensation is not the original cost of the improvements, but the actual enhancement in the value of the land by reason of the improvements made thereon.'

The question raised in the plaintiff's brief as to the restriction or enlargement of damages and rental values (446) (Rev. 654) by reason of the life estate may or may not arise on the trial. It is not, and cannot be presented by this appeal, and it would be supererogation to instruct the judge below upon a matter as to which his ruling may be satisfactory on the trial, if upon the evidence a ruling should be called for.

Petition dismissed.