Durham v. Trustees of Bullock Church , 104 N.C. 525 ( 1889 )

We need not trouble ourselves to settle here the particular rules to be observed in assessing damages under the statutory provisions of this State against railroad companies occasioned by the location of the right of way for their railroads across the land of individuals, because the plaintiff requested the court, among other things, to instruct the jury "that the defendant is only entitled to recover such actual damages as result from the taking of the land and such damages as directly flow therefrom," and it gave this instruction. Indeed, it gave all the instructions asked for by the plaintiff, with slight modification, to which there was no objection. The plaintiff cannot therefore complain of the instructions given.

For the present purpose, treating the instructions as correct, we are of the opinion that the exceptions to evidence cannot be sustained. The evidence, in respect to hitching horses, objected to, was not offered for the purpose of showing damages, special, or otherwise, to horses, (529) as suggested on the argument, but for the pertinent purpose of showing that the value of the small parcel of land of the defendants was impaired by reason of the fact that passing trains on the railroad would tend to frighten and render unruly and unsafe horses fastened to trees and other things near to and about the church during, just before and after church services. It is of common knowledge that it is convenient and essential at country churches to have sufficient room near to them to fasten horses where they will stand quietly and safely while the worshippers are assembled at worship. The land in question was devoted to and used as a place for public worship. It was useful and valuable for that purpose, and the defendants were entitled to damages if trains passing over the road rendered it less valuable for the necessary incidental purpose of hitching horses. The impairment of the value of the land in such respects constituted an element of damage that directly flowed from the location of the road on it. That horses might be fastened to trees and other convenient things on the small parcel of land, in view of the purpose to which it was devoted, rendered it in some measure valuable. The location of the road on it rendered it less valuable for that essential purpose; created the necessity for erecting stalls, screens and the like for horses, at an outlay of money that otherwise would have been unnecessary. In this view the evidence was certainly competent. R. R. v. Wicker, 74 N.C. 220.

Unquestionably it was competent to show what the land was reasonably worth before the location of the railroad on it, preparatory to showing what it was worth after the road was constructed and used. This is a common, reasonable and necessary way of proving the quantum of damages when it appears that the construction and use of the road produces the difference in value. Wood R. R., p. 899; 3 South. on Dam., 441.

(530) The value of land, as of all kinds of property, is much a matter of opinion, and a witness should have knowledge of such value, gained from experience, information and observation to fit him to testify in that respect. Otherwise his opinion will be at random, worthless and misleading. But the objection here was not to the qualification of the witness to testify, it does not so appear, and it would be unfair to merely infer that such was the ground of objection. It may be that he was qualified; that he had bought and sold land in that neighborhood; that he had knowledge of sales made by others from time to time, and particularly of church property. So far as we can see, in the absence of objection on that account, the witness was qualified — the presumption if he was — else objection would have been made for the reason he was not. Wood R. R., p. 941, et seq., 2 ib., 945, 946.

Nor has the third exception substantial force. If the result of the location of the road on the land close to the church was to disturb and distract the attention of the worshippers accustomed to assemble at the church, when assembled for the purpose of worship, so as to impair or destroy the usefulness of the property for church purposes, to which it was and had been devoted, the property was on that account less valuable, unless it was more valuable for some other purpose, and that it was is not suggested. Indeed, the evidence tended to show that it was of trifling value for any other purpose.

The purpose of the evidence was not, as contended on the argument, to show how much or how little the worshippers, severally or collectively, were, would or might be shorn of religious impressions and advantages, but to show that the property was less valuable in that worshippers would not go there, but would find some safer, more quiet and agreeable place to worship, until the church as a place of worship would be deserted and of little or no value for church purposes, until the church building would be useful only to be torn down and the (531) lumber devoted to other purposes, and the land would be worth for any other purpose only a nominal price. While the chief purpose of church organizations is to extend religious advantages and afford opportunity to worship Almighty God, through their officers and agents, they own much valuable property, both real and personal, to be affected favorably or adversely, as to its pecuniary value, like similar property owned by individuals, and the law takes notice of and protects it just as it does the like property of individuals in material respects. Injury to such property, in a respect that impairs its usefulness for the purposes to which it is devoted, constitutes an element of damage recoverable when such injury is the direct cause of the act complained of or when it flows directly from that act as a consequence. If the effect of the location and use of the plaintiffs' road had been to ruin the church building in question, would not the defendants have had their remedy? Most assuredly they would. If such effect has seriously injured its usefulness, not in a spiritual point of view as to worshippers there, but as a church property, shall they not have redress? If the road is so near to the church that passing trains of cars disturb the people, distract or divert their attention, for one cause or another, so that they cannot or will not properly worship there, shall the defendants not have redress for the injury so in the nature of the matter done the property as a place of worship? Is the property on that account not less valuable? Would any church organization give as much money for the property, with such disadvantage so wrought, for church purposes as it would otherwise do? Obviously it would not. Did such injurious effect, great or small, flow as a consequence directly from the location and use of the plaintiff's road? If it did such effect constitutes an element of damage cognizable in this proceeding. The purpose of the evidence excepted to was (532) to prove that it did, and it had that tendency. It was therefore competent. Wood R. R., p. 925, et seq.

The commissioners who viewed the land assessed the damage at three hundred dollars. The plaintiff objected and excepted to this assessment as excessive. Thereupon, the parties waiving irregularities in the course of the proceeding, the question of the quantum of damages was submitted to a jury in term time, and they assessed the damages at four hundred and fifty dollars. The defendants did not except to the assessment made by the commissioners. Hence, in this Court, the plaintiff contended that the court below could not give judgment for a greater sum than three hundred dollars.

The report of the commissioners to assess the damage when made and filed gave character and point to the proceedings as to damage. "Any person interested in the said land may file exceptions to said report, and upon the determination of the same by the court either party to the proceedings may appeal to the court at term, and thence after judgment to the Supreme Court. The court or judge on the hearing may direct a new appraisal, modify or confirm the report, or make such order in the premises as to him shall seem right and proper," etc. Code, sec. 1946. Acting upon this provision the plaintiff excepted to the report solely on the ground that the assessment was excessive. The defendants did not except at all, and thus impliedly signified their satisfaction with the assessment as made.

It might have been questioned whether regularly the issue raised by the plaintiff's exception to the report ought strictly to have been submitted to a jury, but it might be, certainly by consent, and this was given. At all events, by implication, there was no objection. R. R. v. Wicker, 74 N.C. 220; R. R. v. Phillips, 78 N.C. 49.

(533) Informally an issue not put in writing was submitted to the jury. What it was does not appear, except by inference. It seems that it was in substance "What damage has the defendants sustained?" But this question was not raised by the exception and the state of the record. The inquiry was limited to the question whether or not the assessment was excessive, and if so, to what extent. If the defendants thought it too small they should have excepted, at the proper time or afterwards, by permission of the court. The plaintiff's exception did not have the effect to vacate the report and put the question of damages at large. It was sufficient and continued to have force, so far as appears, until for proper cause, the court should set it aside or modify it in some respect, and it still has effect.

The last objection was not made in the court below, but as the error appears in the record proper of the proceeding we take notice of and correct it. Thornton v. Brady, 100 N.C. 38; Hutson v. Sawyer, ante, 1.

The jury have by their verdict in effect found that the assessment of damages by the commissioners was not excessive. The judgment must therefore be set aside and judgment entered in the court below in favor of the defendants for three hundred dollars.

Modified and affirmed.

Cited: R. R. v. Mfg. Co., 166 N.C. 176; S. c., 169 N.C. 162, 165,166; Lambeth v. Thomasville, 179 N.C. 456.

(534)