Riverview Milling Co. v. State Highway Commission

Yarser, 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.