DUKE POWER COMPANY, Petitioner,
v.
Neil G. ROGERS and wife, Elizabeth Rogers, Respondents.
No. 27.
Supreme Court of North Carolina.
August 25, 1967.*246 H. D. Coley, Jr., Crowell & Crowell, Hendersonville, Carl Horn, Jr., Charlotte, for petitioner appellant.
Garren & Stepp, Hendersonville, for respondents appellees.
SHARP, Justice.
Petitioner assigns as error the following portion of the judge's charge on the measure of damages:
"So, you see, ladies and gentlemen of the jury, there are two elements of compensation to be considered by you. Number one, the market value of the land actually appropriated for easement purposes here, consisting of approximately one acre, and, second, the injury or damage done to the remainder of the tract or portion of the land, used by the owners as one tract. So the amount of compensation which the landowners are entitled to recover, if you find they are entitled to recover at all, is, first, the fair market and reasonable market value of the property taken or appropriated, *247 and second, the difference between the reasonable market value of the additional tract or tracts just before the taking and appropriation of said lands, and the reasonable market value of such additional tracts or portions immediately following the taking. (Exception No. 1, Assignment of Error No. 1).
This instruction required the jury to award respondents the full value of the 0.93-acre tract traversed by petitioner's right-of-way as well as damages to the property on each side of it, as if each were a separate tract. This was prejudicial error. North Asheboro-Central Falls Sanitary District v. Canoy, 252 N.C. 749, 114 S.E.2d 577; Carolina Power and Light Co. v. Clark, 243 N.C. 577, 91 S.E.2d 569. Petitioner does not acquire the right to occupy the surface of the 0.93-acre right-of-way to the total exclusion of respondents. It is condemning only an easement; respondents retain the fee in the land. Subject to the prohibitions specifically enumerated in the petition, they may make any use of the surface of the strip which will not interfere with petitioner's transmission of electricity. Carolina Power and Light Co. v. Bowman, 229 N.C. 682, 51 S.E.2d 191. Necessarily, that use will be limited; but it cannot be said that the right to use it and to traverse it freely has no value to them.
The jury should have been instructed that petitioner was required to pay respondents "the difference in the market value of (their) property free of the easement and subject to the easement." North Asheboro-Central Falls Sanitary District v. Canoy, supra at 754, 114 S.E.2d at 581. Stated more fully:
"The measure of permanent damages for the appropriation of a right of way for the construction of an electrical overhead system is the difference between the fair market value of the tract as a whole before the right of way was taken and its impaired market value directly, materially and proximately resulting to the respondents' land by the placing of a power line across the premises in the manner and to the extent and in respect to the uses for which the easement was acquired." Nantahala Power & Light Co. v. Carringer, 220 N.C. 57, 58-59, 16 S.E.2d 453, 454; accord, Carolina Power & Light Co. v. Clark, supra.
The rule given by his Honor is the rule ordinarily applicable to the assessment of damages in condemnations of railroad, highway and other rights of way in which the bare fee remaining in the landowner, for all practical purposes, has no value to him and the value of the easement is virtually the value of the land it embraces. North Carolina State Highway Commission v. Black, 239 N.C. 198, 79 S.E.2d 778; Carolina & Y. R. R. v. Armfield, 167 N.C. 464, 83 S.E. 809; see Caldwell Power Co. v. Russell, 188 N.C. 725, 125 S.E. 481. Whether there is any substantial difference in the easement condemned and a fee simple estate in the land depends upon the nature and extent of the easement acquired. "Each case must stand on its exact facts." Carolina Power & Light Co. v. Clark, supra, 243 N.C. at 582, 91 S.E.2d at 572; Nantahala Power & Light Co. v. Rogers, 207 N.C. 751, 178 S.E. 575 and Caldwell Power Co. v. Russell, supra, cited by appellee, appear to have involved more extensive easements then the one here condemned, but, however that may be, to the extent that they conflict with this opinion, they have been superseded by Carolina Power & Light Co. v. Clark, supra, and North Asheboro-Central Falls Sanitary District v. Canoy, supra.
Petitioner's second assignment of error is that the judge failed to instruct the jury as to the rights acquired by petitioner and what rights respondents retained in the land covered by the easement. This assignment of error does not comply with our rules in that petitioner did not set out at the end of the charge what it contends *248 the judge should have told the jury. Nevertheless, since the case goes back for retrial we take note of the court's omission. The judge should have instructed the jury as to the respective rights of petitioner and respondents and explained to them what use each was entitled to make of the strip condemned. North Asheboro-Central Falls Sanitary District v. Canoy, supra; Carolina Power & Light Co. v. Clark, supra.
For the errors indicated, there must be a
New trial.