Nantahala Power & Light Co. v. Moss ( 1941 )

CLARKSON, J., concurring in result. The petitioner has not taken and does not seek to take any part of the property of any one of the respondents except a right of way or easement for the tunnel which passes across the land of the respondent Ida Moss. It only seeks the right to divert the waters of Tuckaseegee River which passes along the boundary line of the respective respondents and to have the compensation to be paid therefor fixed and determined. And it is conceded that as the property line of each respondent extends to the thread of the stream each is a riparian owner affected by the diversion of the waters of such stream. The right to so divert is a proper basis for condemnation proceedings.

The petitioner complains that the court below permitted the cause to be tried upon the theory, in part, that the respondents are entitled to compensation for the diversion of the waters of Tuckaseegee River on the basis of advantages thereby accruing to the petitioner. That is, on the basis of the enhanced value of its development resulting from the use of the water as diverted. It contends that under the evidence offered and the charge of the court the jury was permitted to award respondents a ratable share of the value to the petitioner based on fall per foot in the whole development. Its contentions in this respect are properly presented by a series of exceptions duly preserved. While the exceptions in this respect are numerous we may consider the one question thereby presented without discussing any one of the exceptions in detail.

Witnesses were permitted to give testimony as to the location and nature of petitioner's reservoir and power plant, the location of its dam, the length of its tunnel and the total fall thereby created, the relative location of the lands of respondents, the proportionate part of the fall owned by them and other facts relating to the benefits accruing to the petitioner from the taking. They were then permitted to estimate the value of respondents' land when considered as an essential part and parcel of the whole development.

In its charge the court reviewed this evidence in detail, calling the attention of the jury to the fact that the witnesses had said: "That the diversion of the river and making the tunnel has enhanced the value of petitioner's proposition, and that he took this in consideration in placing his estimate of value upon respondents' property"; "in considering the hydroelectric proposition he said he figured each one of these tracts as a unit of considerable potential value, assuming that a plant would be developed, that the whole would be developed into what he would consider a great water power"; "he considered the respondents' property as a part of the petitioner's property, as one of its units"; "he has made his estimate on the basis of a unit by the owners, and also in connection with the petitioner"; "that the petitioner could not profitably or practicably proceed or have any such power proposition as it now has without this diversion of the river and that he took this into consideration in placing his value on the respondents' property"; "he arrived at the estimate of its value by considering all the property, including the respondents' property and the petitioner's property as a unit"; "that this property is an essential part of that unit, and that the petitioner is now using all of it as one unit"; and "the petitioner has developed part of the unit and is now trying to get the rest of the unit."

The court then called the attention of the jury to the contentions made by respondents based upon this evidence to the effect in part that the petitioner cannot operate without the right to divert the water from the lands of the respondents and that the acquisition of such right "is indispensable to the petitioner."

The market value of property is the yardstick by which compensation for the taking of land or any interest therein is to be measured and market value of property is the price which it will bring when it is offered for sale by one who desires, but is not obliged to sell it, and is bought by one who is under no necessity of having it. In estimating its value all of the capabilities of the property, and all of the uses to which it may be applied, or for which it is adapted, which affect its value in the market are to be considered, and not merely the condition it is in at the time and the use to which it is then applied by the owner. 2 Lewis, Eminent Domain 3d 1228, and numerous cases cited; Brown v. Power Co., 140 N.C. 333;Pemberton v. Greensboro, 208 N.C. 466, 181 S.E. 258; Highway Com. v.Hartley, 218 N.C. 438, 11 S.E.2d 314, and cases cited; Bonbright, Valuation of Property, Vol. 1, p. 411, et seq.; Light Co. v. Carringer,ante, 57, and cases cited. Ford Hydro-Electric Co. v. Neely,13 F.2d 361; Anno. 75 A.L.R., 857; 10 R. C. L., 128.

That this is the true rule to be followed in ascertaining the compensation due the respondents seems to be conceded. The application of the rule and what is to be excluded from consideration in ascertaining the reasonable market value is the hub of the controversy.

The just compensation rule merely requires that the owner of the property taken shall be paid for what is taken from him. "It deals with persons, not with tracts of land, and the question is, what has the owner lost? not, what has the taker gained?" Boston Chamber of Commerce v.Boston, 217 U.S. 189, 54 L.Ed., 725. The value of the property to the condemnor for his particular use is not to be considered. Power Co. v.Hayes, 193 N.C. 104, 136 S.E. 353; United States v. Chandler-Dunbar W.P. Co., 229 U.S. 53, 57 L.Ed., 1063, and cases cited; U.S. v. Hayman,115 F.2d 599.

Value to the taker of a piece of land combined with other parcels for public use is not the measure of or guide to the compensation to which the owner is entitled. Olson v. U.S., 292 U.S. 246, 78 L.Ed., 1236, and cases cited. Highway Com. v. Hartley, supra. "The value of the land taken to the party taking it is not the test of what should be paid, nor should the fact that the land is desired or needed for a particular public use be considered when it is taken for that use." 18 Am. Jur., 881. Neither the value to the condemnor nor his necessity can be taken into consideration when fixing the value. 18 Am. Jur., 882; McGovern v. New York, 229 U.S. 363, 57 L.Ed., 1228; Wadsworth v. Water Co.,256 Pa. 106; San Diego Land Co. v. Neale (Cal.), 25 P. 977; Thompson v.State, 189 N.Y. 590; Kirk v. Buckles, 134 Okla. 206, 273 P. 346.

The very purpose underlying the authority to take by eminent domain is to prevent the owner who is aware of the necessity of the taker from making the most of such necessity and from demanding the highest price such necessity impels. Hence "holdup" or "strategic" values created by the necessity of the taker is not the true criterion. U.S. v. Chandler-DunbarW. P. Co., supra; McGovern v. N. Y., supra; Boston Chamber of Commerce v.Boston, supra; Olson v. U.S., supra; Highway Com. v. Hartley, supra.

It follows that it was error for the court to admit the indicated evidence and to submit the same to the jury for its consideration in the charge.

But the respondents take the position that the admission of this evidence, if error, was rendered harmless by the charge of the court. In this connection it may be conceded that the court in a part of its charge correctly stated the rule to be followed by the jury in the ascertainment of the amounts to be awarded the several respondents.

Whether in any event this would be sufficient to erase from the minds of the jury the impression which must have been made by the admission of the evidence, the recapitulation thereof by the judge, and the statement of the contentions based thereon is subject to serious debate. This we need not now decide for the reason that the court went further and, in our opinion, emphasized the error to such an extent as to make it appear that the jury must have given weight and consideration to the evidence and to the charge in respect thereto in arriving at its verdict, so as to make it manifest that the respondents have been awarded compensation for the benefits accruing to the petitioner from the diversion of the waters in question.Pemberton v. Greensboro, supra.

To meet the situation arising from the admission of this testimony and to preserve its exceptions thereto the petitioner tendered a number of prayers for instruction, requesting the court to charge the jury, in substance, that any enhanced value in the property of petitioner resulting from the diversion, the value of the property to the company condemning it, the enhancement of the value of its project, the benefits accruing to the petitioner and the value of the diverted water, when used in connection with the dam, reservoir and power project of the petitioner, were not to be considered. The court modified each of these instructions by adding such terms as "accruing by reason of its expenditures"; "by reason of its expenditures" and "caused by its expenditures," or "arising from its expenditures."

The modifications were unwarranted. The instructions, as given, when viewed in connection with the evidence submitted and the contentions stated, clearly left it open for the jury to consider such elements — except as increased in value by the expenditures of the petitioner — in ascertaining the compensation to be paid.

Other exceptions are directed to the admission of evidence offered for the purpose of showing that by uniting the lands of respondents with adjacent lands, other than that belonging to the petitioner, an independent water power project was available. Related exceptions are to the charge of the court in respect thereto.

It is unnecessary to discuss these exceptions at length. If as one witness testified, "it is speculation, like anything else — I proceeded on the assumption that by some method the property owners on both sides of the street might be combined in some way so that a dam could be built in a similar manner . . . there isn't a market available at the minute, there is a potential possibility of a market," the evidence was speculative in nature and it should have been excluded, or the jury should have been cautioned not to consider it.

Elements affecting value that are dependent upon evidence of combinations of occurrences which, while within the realm of possibility, are not fairly shown to be reasonably probable, should be excluded from consideration, for that would be to allow more speculation and conjecture to become a guide for the ascertainment of value — a thing to be condemned in business transactions as well as in judicial ascertainment of truth. Olson v. United States, supra; Ayden v. Lancaster, 197 N.C. 556,150 S.E. 40.

Before valuations can be considered as a basis for awarding damages under the theory that the numerous types of land may be brought together and used as one tract in a development, it must be shown that there is a reasonable probability of the unification of the tracts of land involved and that it is feasible and practicable to combine them in the one ownership either by condemnation proceedings or by agreement, and such evidence should not be submitted to the jury under any circumstances when it appears that such unity is impractical or impossible. R. R. v. Gahagan,161 N.C. 190, 76 S.E. 696. See also Central Power Co. v. Stone,139 Ga. 416, 77 S.E. 565; Chicago, Burlington Q. R. R. Co. v. City ofChicago, 166 U.S. 226, 41 L.Ed., 979; Stockton v. Ellingwood (Cal.),275 P. 228; Eichman v. Oklahoma City (Okla.), 202 P. 184; N. Y. City v.Sage, 239 U.S. 57, 60 L.Ed., 143; Medina Valley Irrig. Co. v. Seekatz, 237 Fed., 805; Idaho Farm Devel. Co. v. Brackett (Idaho), 213 P. 696;Emmons v. Utilities Power Co. (N. H.), 141 A. 65, 58 A.L.R., 788;Gilmore v. Central Maine Power Co. (Me.), 145 A. 137. Conversely, the highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future is to be considered, not as a measure of value but to the full extent that such prospect or demand for such use affected the market value at the time respondents were deprived of their riparian rights. Olsonv. U.S., supra; Miss. R. River Boom Co. v. Patterson, 98 U.S. 403,25 L.Ed., 206; Clark's Ferry Bridge Co. v. Public Service Com.,291 U.S. 227, 78 L.Ed., 767; 2 Lewis, Eminent Domain 3d, sec. 707, p. 1233; 1 Nichols, Eminent Domain 2d, sec. 220, p. 671; U.S. v.Powelson, 118 F.2d 79. The fact that the most profitable use of a parcel of land can be made only in combination with other lands does not necessarily exclude that use from consideration if the possibility of combination is so reasonably sufficient and the "other uses" are so reasonably probable as to affect market value. N. Y.City v. Sage, supra; Olson v. U.S., supra; United States v. Powelson,supra. In making the estimate of market value there should be taken into account all considerations that fairly might be brought forward and reasonably given substantial weight by the seller and buyer at private sale. Olson v. U.S., supra; Brooks-Scanlon Corp. v.United States, 265 U.S. 106 68 L.Ed., 934; 18 Am. Jur., 880; Emmons v.Power Co., supra.

At the next trial, in ruling upon the admissibility of evidence offered for the purpose of showing the availability and adaptability of the land of respondents for uses other than those to which it is now being subjected the trial judge should be guided by these generally recognized principles.

The petitioner likewise complains that the court below in its charge read extensively from the opinions in Brown v. Power Co., supra, and UnitedStates v. Powelson, supra, in which the facts were essentially different, and from the Olson case, supra, and other cases, omitting from such reading statements that qualified and limited the general principles enunciated in those cases.

While the right of a judge to adopt the language used by an appellate court in its opinions, when properly applicable to the facts in the case on trial, cannot be gainsaid, extreme caution should be exercised in so doing.

The law discussed in any opinion is set within the framework of the facts of that particular case and it is often, if not generally, extremely difficult to transplant the law so that it will grow healthily upon another set of facts merely by reading from an opinion without calling attention to the dissimilarity in the facts and applying the law to the evidence in the cause at issue.

"Especially is it difficult to ascertain to what extent the facts in the case are binding upon the language employed. Not infrequently the statements are not commensurate with their own applicability. They read like statements universalizing some principle when in truth they are intended to express something peculiar to the case. Considerable difficulty is always experienced in so expressing an idea that the language implies no more and no less than just what is intended." Brumbaugh, Legal Reasoning and Briefing, p. 195. The judge should be ever mindful that "a decision . . . draws its peculiar quality of justice, soundness and profoundness from the particular facts and conditions of the case which it has assumed to adjudicate." Ibid., p. 172. "It is platitude to say that language wrenched from its context is apt to be misconstrued. Courts repeatedly have held that the language of their opinions must be read in connection with the facts of the case in which the language was used. This is, or ought to be, known to all. The surprising thing is to find how utterly meaningless, how completely ununderstandable, the language of an opinion of a court can be when taken out of its setting." Walter, Brief-Writing and Advocacy, pp. 78-9.

This difficulty in transplanting law is due, in part at least, to the dual nature of the judicial opinion. Its primary function is to furnish the rationale of the decision and disposition of the instant case; its secondary — and incidental — function is the exposition of general legal principles. In each case the particular becomes so blended with the general, the specific so definitely a part of the universal, that he must indeed be a deft and expert craftsman who undertakes to excise that which is general law. It is this danger of coloring the general with the particular which makes so dangerous the reading to the jury of extensive portions of opinions in previously decided cases. When we realize that able lawyers are sometimes perplexed as to the extent of the universality of principles apparently enunciated in cases, how much more apparent it must be that laymen, untrained in the law, are likely to transfer indiscriminately the principles of factually different cases to the case at bar when those principles have been called to their attention by the impartial judge who is trying the case. Peay v. Durham Life Ins. Co.,185 S.C. 78, 193 S.E. 199; Milhous v. State Highway Dept.,194 S.C. 33, 83 S.E.2d 852.

The facts in the Brown and in the Powelson cases, supra, are substantially different from those presented on this record. In the Olsoncase, supra, the Court used expressions which materially qualified the general principles discussed. Care and caution should be exercised in applying the law as stated in those cases to the facts in this cause.

There are other exceptions in the record which are stressed with some force and reason. The questions thus presented may not again arise. Hence, we refrain from discussion thereof.

For the reasons stated the petitioner is entitled to a

New trial.