In January, 1946, the respondent Baker (who hereinafter will be referred to as the respondent) acquired at public sale a tract of land consisting of approximately nine hundred and three acres. He paid $7,600.00 for the tract. The respondent Hugh F. Williams holds a mortgage over the land in question. Within a very few months after the respondent's purchase, the appellant attempted to acquire from him by negotiation of right-of-way over a portion of the lands for the purpose of the erection of a high tension power line traversing the property near its center. The right-of-way was to vary in width between two hundred and two hundred and fifty feet along a line extending through respondent's property one and one-tenth miles. The total area embraced in the right-of-way is approximately thirty acres.
The parties were unable to agree upon the compensation to be paid the respondent. In consequence the appellant in August, 1946, initiated the present condemnation proceedings.
The proceedings were instituted under the provisions of Section 8437 et seq., and 8531 et seq. of the Code. These statutory provisions, which in terms relate to the construction *Page 372 of railroads, canals, and turnpikes, and to the acquisition of rights-of-way for such purposes are made applicable to power companies by Section 8540 of the Code. Under these statutory provisions the amount of compensation (termed by the statute "just compensation") is fixed in the first instance by a jury impaneled by the Clerk of the Court of Common Pleas under the direction of the Judge of the Circuit wherein the lands are situate.
From the verdict of the jury so impaneled provision is made for an appeal to the Circuit Court; and as provided in the statute, "upon the hearing of such appeal, an issue shall be ordered, in which the appellant shall be the actor, and the question of compensation shall be thereupon submitted to a jury in open court, whose verdict shall be final and conclusive, unless a new trial shall be ordered by the Supreme Court."
In the trial of the present matter before the Clerk's jury there was a verdict in favor of the respondent for $5,765.00. Upon appeal to the Circuit Court, the jury fixed the compensation at $5,454.84.
In its appeal to this Court, the appellant assigns as error the failure of the Circuit Judge to charge the jury as to the burden of proof, as to special damages, and as to the duty of the respondent to minimize his damages; that the issue of special damages should not have been submitted to the jury because of the absence of any testimony thereabout; that the charge of the Circuit Judge permitted the jury to assess "speculative, remote and possible damages" as special damages; and that the Circuit Judge should have set aside the verdict of the jury on the ground that it is excessive, amounting to a taking of property without due process of law.
On the question of the failure of the Circuit Judge to charge the jury on the subject of the burden of proof, the *Page 373 record discloses that upon the conclusion of the charge the Circuit Judge inquired:
"Anything further from the petitioner (appellant here)?
"Mr. Williams (of counsel for appellant): No, sir.
"The Court: From the respondent?
"Mr. Stansfield (attorney for respondent): Your Honor has not charged the jury as to the burden of proof.
"The Court: There is no burden of proof, under the statute."
The Circuit Judge was in error in stating that the trial of the case did not involve the subject of the burden of proof and that therefore it was unnecessary for him to charge the jury thereabout. Whatever the rule might be in the trial of the issues before the Clerk's jury, the statute (Section 8441, Code) under which the present proceeding was conducted expressly provides that upon an appeal, an issue shall be ordered, in which the appellant shall be the actor. This clearly put the burden of proof upon the appellant.
The trial below was conducted in accordance with the statutory rule stated. The transcript shows that the trial opened with the testimony of the witnesses called by the appellant, and closed with the reply testimony of a witness called by the appellant. Counsel on both sides thus recognized the rule as stated above and tried the case in accordance therewith.
When the appellant now complains of the failure of the Circuit Judge to instruct the jury on the subject of the burden of proof, it is in effect complaining of the failure of the Circuit Judge to tell the jury that the burden of proof rested upon it. This was favorable to the appellant rather than prejudicial to it; and appellant's counsel doubtless took this view of the matter in failing to call the Circuit Judge's attention to the absence of any instruction on the subject. *Page 374
In any aspect of the case, therefore, we are led to the conclusion that under the circumstances here presented the failure of the Circuit Judge to charge on the burden of proof did not constitute reversible error.
Another exception relates to the failure of the Circuit Judge to charge the jury on the subject of minimizing damages.
The record contains a considerable amount of evidence on this subject. Testimony offered on behalf of the appellant (not objected to) tended to show that a large quantity of timber and cord wood which had been cut by the appellant in clearing the right-of-way was made available to the respondent at a price which represented a small part of the actual value of such timber and cord wood; and there was other testimony tending to show that there was a considerable quantity of additional sawmill timber, and trees suitable for cutting into cord wood which the respondent was advised by the appellant could be cut and used by him. The respondent is in the business of handling timber and cord wood. Whether it would have been good business for him to accept the timber and wood that had been cut, at the price at which the appellant made the same available to him, was not a matter in issue before the jury, because of course the respondent was entitled to compensation in money for the taking of an easement in his land and the cutting of timber and trees by the appellant as an incident to exercising the easement. The appellant was right in assuming that the timber and cord wood cut by it from the right-of-way was its property; it however was wrong in its assumption that merely because the timber and cord wood was cut from the respondent's land across which the easement runs, he could be required to accept it by way of partial compensation for the taking of the easement. The question is not whether the respondent should have minimized his damages by purchasing the timber and cord wood in partial compensation upon the terms proposed by the *Page 375 appellant, but is whether the respondent could be required to pay any amount, however small, for such timber and cord wood and to market the same in order to reduce the amount of his claim by the profit he might make in such a transaction. To this question, we must give a negative answer.
We think, however, that a different view must be taken of the failure of the Circuit Judge to charge the jury to the effect that in arriving at the value of the easement over respondent's land, consideration should be given by them to such timber and trees as were left standing by the appellant, and to the value of the utilization of the land that might be found practicable while the easement is in use by the appellant. The statute under which the condemnation was made reserves the fee in the condemned lands to the original owner, limiting the rights of the condemnor to the special uses for which the property was condemned (Code, Sec. 8444). This limitation was expressly recognized in the condemnation notice and in the petition in the condemnation proceedings. The result is that to the extent that the strip of land in question was susceptible of use for farming and other purposes not inconsistent with the exercise of the easement and to the extent that the timber on this strip of land was not and need not be cut by the appellant for the protection of its power line, the rights of user and ownership on the part of the respondent were not wholly impaired. What values might attach to these elements of ownership was a question for determination by the jury, and constituted an element of abatement of the price that the appellant should be required to pay for the property.
The Circuit Judge not only failed to charge as above indicated; he in effect excluded the subject from consideration by the jury when he said in his charge:
"Now, in passing upon that gentlemen, you ascertain what the actual value of the land taken is. That means the *Page 376 actual value of the land included in the right-of-way. Youwould also take into consideration, gentlemen, the actualcommercial value of any timbers growing on that land atthe time of the taking of the South Carolina Power Company." (Emphasis added.)
Indeed, he thus told the jury that the value of the timber growing upon the property, though not in the way of the appellant in the exercise of its rights incident to the easement, should be taken into consideration as an element of the value of the property rights acquired by the appellant. The testimony clearly discloses that there was a quantity of growing and unfelled timber marketable as lumber and cord wood which was left upon the property by the appellant because it was unnecessary to disturb the same in constructing its power line.
While the appellant has failed to specifically embrace this last mentioned subject within any of its exceptions, yet its fourth exception is sufficient to cover the question. This exception refers to the subject of minimizing damages but also touches the questions relating to the value of the growing timber and the possibility of use of the strip in question for growing timber and farming purposes.
A further serious question made by the exceptions of appellant is whether the respondent was entitled to recover special damages. There is no substantial testimony in the record indicating any direct damage to the remainder of respondent's property. Nor is there any testimony from which it can be deduced that some damage or injury to the remainder of the respondent's property, or some diminution in its market value, would arise out of the mere fact of the construction of the power line over the limited area of the right-of-way.
As already stated, the right-of-way runs through the main body of respondent's tract, not far from the center of the tract. *Page 377
We do not deem it necessary to decide in this case whether an award of special damages can be made on the speculative theory that the presence of the power line running across respondent's property would tend to reduce the value of the remainder of the property by reason of fears or prejudices or other attitudes on the part of prospective or potential purchasers. There is considerable authority on this subject and the rulings of appellate courts appear to be diverse. It suffices to say that in the present case there is no testimony of the character above referred to. Some of respondent's witnesses did testify to personal objections on their part to owning property over which power lines are constructed, but the case is barren of any showing or attempted showing that the intrinsic or market value of respondent's property has in fact been depreciated beyond the limits of the right-of-way.
On this subject the Circuit Judge charged the jury that special damages in the present case "would include any damage or any decrease in the actual value of the remainder of the landowner's property * * * if you find that there was any decrease in the value by reason thereof." But we find in the record no testimony of probative value on this subject. Indeed, the respondent in his printed argument, takes the same view when he says: "While the landowner alleged injury would result to his farm, crop and the remainder of the land, the said landowner, by his testimony, and in argument before the Jury, did not contend for any special damages. A reading of the record will show that the only contention made by the landowner was for compensation on account of the taking of his land and timber. The landowner did not contend for damages to the remainder of his premises. The landowner contented himself with proving the value of his land and timber and cord wood that had been taken by the appellant."
When the Circuit Judge discussed with counsel the subject matter of the charge to be made by him, he asked counsel: *Page 378 "What is your respective view of the element of damages under the statute?"
Counsel for appellant replied: "I think the actual damages and special damages will do."
This statement of appellant's counsel might at first blush be taken to be an invitation to the Circuit Judge to charge the jury on the subject of special damages and to thus constitute a waiver of the right to have had the Circuit Judge instruct the jury that there was no testimony upon which special damages could be awarded. But when the matter is considered in the light of the whole record, the view just stated appears to be harsh and technical.
Appellant's counsel was correct that the matters involved were actual damages and special damages. If the Circuit Judge had charged the jury that they could not award special damages because of the absence of evidence on this subject, he would have done precisely what counsel doubtless contemplated when he stated that special damages was one of the subjects involved in the case.
The charge of the Circuit Judge as actually given was not a misstatement of the issues made by the pleadings (a matter to which counsel are required to call the attention of the Court); it was strictly a misstatement of the law to the extent that it indicated to the jury that they could award special damages on whatever theory they might adopt as to damages inflicted upon the remainder of respondent's property even though there was no testimony before the jury indicating any special damages in this particular case.
This element in the case is a most important one. It is reasonably deducible from the record that without any testimony which can be said to deal with the subject of special damages, there was something of the dramatic in the statements of the witnesses about the condemnor "busting *Page 379 through" the property in question and similar statements, and that the absence of caution on the part of the Circuit Judge that there was no evidence indicating damage to the remainder of the property left the jury with a belief that damages could be assessed by them as to the remainder of the land merely because of the taking of the right-of-way through it.
In the light of the foregoing it is unnecessary to deal with appellant's exception raising the question that the verdict of the jury "is shockingly excessive, and amounts to a taking of condemnor's property without due process in violation of the due process clause of the Constitution of the State and that of the United States."
The judgment of the Circuit Court should be reversed and the case remanded for a new trial.
NOTE: The foregoing was written as and for the opinion of the Court, but not having received the concurrence of the other Justices, it becomes a dissenting opinion.