North Carolina State Highway & Public Works Commission v. Privett

99 S.E.2d 61, 246 N.C. 501, 1957 N.C. LEXIS 481
CourtSupreme Court of North Carolina
DecidedJune 28, 1957
StatusPublished
Cited by18 cases

This text of 99 S.E.2d 61 (North Carolina State Highway & Public Works Commission v. Privett) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
North Carolina State Highway & Public Works Commission v. Privett, 99 S.E.2d 61, 246 N.C. 501, 1957 N.C. LEXIS 481 (N.C. 1957).

Opinion

Bobbitt, J.

The front portions of two buildings were on the condemned portion of the Privett property. These buildings were (1) a 1%-story frame building, converted into a two family apartment, with four rooms and a bath on each floor and a connecting garage at the rear; and (2) a 2-story concrete block building, the ground floor of which had been used by Privett for his grocery and general merchandise business.

Other buildings on the Privett property, east of the condemned portion, are (1) the Privett residence, ten rooms and a bath, near the center of the Privett property; (2) a new 2-story concrete block building, fronting on US #74, the ground floor of which is now used by Privett for his grocery and mercantile business, with six rooms and a bath [505]*505upstairs; and (3) a new frame building, farther back from US #74, with nine rooms and two baths.

The Liles map shows the location of each of the several buildings and the portions of the two buildings fronting on US #1 within the condemned portion of the Privett property.

Petitioner and respondents offered opinion evidence as to the fair market value of the Privett land before and after the taking by petitioner of the portion condemned. The verdict indicates acceptance by the jury of the testimony that was more favorable to the respondents.

PETITIONEE’S APPEAL

Petitioner brings forward 28 assignments of error based on 44 exceptions. They relate to (1) rulings on evidence, (2) the charge, and (3) sundry matters.

Each exception to a ruling on evidence has been given close attention. No prejudicial error has been shown. It is deemed unnecessary to discuss any of the assignments relating to rulings on evidence except those considered below.

Where the court sustained objections to questions by petitioner’s counsel, the subject of assignments 3, 5, 7 and 8, it is sufficient to say: “The record fails to show what the witness would have testified had he been permitted to answer. Hence, there is no basis for a consideration of these exceptions.” Hatcher v. Clayton, 242 N.C. 450, 88 S.E. 2d 104, and cases cited.

The cross-examination of respondents’ witness Cockman explored in detail the bases upon which the witness arrived at his opinion that the fair market value of the Privett property was $135,500.00 before the taking and $95,500.00 thereafter. The witness was questioned as to his valuation of the land itself and of each building thereon. In giving his opinion that the 2-story store building on the portion condemned should be valued at $27,500.00, he stated that he based this figure upon estimates he had obtained as to replacement cost; and the cross-examiner elicited testimony that the witness had made no allowance for depreciation of this replacement cost, notwithstanding the building had been there 20-25 years.

Petitioner’s counsel moved that “his testimony there be stricken, because the courts have said replacement cost is not the proper measure of damages.” Exception #5, upon which assignment #4 is based, is to the court’s denial of said motion. The court aptly observed that petitioner’s counsel had “brought it out.” This testimony, it would appear, tends to impair the weight that should be given to the testimony of Cockman on direct examination as to over-all values; and, independent of the fact that it was elicited by petitioner’s counsel, we detect nothing therein unfavorable to petitioner.

[506]*506It must be kept in mind that respondents did not offer evidence as to the separate value of the land, considered alone, or of any building, considered alone. Nor did the court intimate that the replacement cost of any building was the proper measure of respondents’ damage. The jury was given this instruction: "... the Court charges you that your measure of damages in this case is the difference between the fair market value of the entire tract of land, including the buildings thereon, immediately before the taking and the fair market value of what is left immediately after the taking. After weighing and considering all the evidence, you will determine by its greater weight, the burden being upon the landowner, the respondent, what amount, if any, would be just compensation for the appropriation of their land over and above all general and special benefits, if any, accruing to said lands.” It is noted that petitioner does not assign the quoted instruction as error, nor the court’s prior instructions as to fair market value and special and general benefits.

Before respondents’ witnesses Haywood and McDonald had testified to their opinions as to the fair market value of the Privett property before and after the taking, petitioner’s counsel moved that they be permitted to examine these witnesses to determine whether they “may have taken into consideration elements and followed methods” believed by counsel to be improper. Assignments #6 and #9, based on exceptions 7, 8, 9, 13 and 14, are based on the court’s denial of these motions for such preliminary examination or cross-examination of respondents’ said witnesses. Each witness had testified as to his familiarity with the Privett property and with market values in the area and that he had opinions satisfactory to himself relevant to the issue. Cross-examination was the available medium whereby the weight of the testimony might be impaired by showing that the witness “considered elements and followed methods” that did not reflect fair market value either before or after the taking. Suffice to say, petitioner’s counsel fully embraced the opportunity so afforded by the privilege of cross-examination.

The eight exceptions on which assignments 13, 14 and 15 are based relate to the overruling of petitioner’s objections to questions asked by respondents’ counsel in their cross-examination of petitioner’s witness Rice. Rice had testified to his opinions as to the fair market value of the Privett property before and after the taking. The cross-examiner wanted to know whether Rice knew the values of any other property in the area near the Privett property, or the prices at which such properties had been sold; and to all these questions the witness gave negative answers. The testimony so elicited was relevant solely to the credibility of the witness, and the weight, if any, to be given his testimony. Let it be noted that none of the questions undertook to elicit [507]*507testimony as to the valuations or sale prices of other properties, the questions being directed to whether the witness had opinions or knowledge with reference thereto.

Assignment #19 is to the refusal of the court to admit in evidence photographs of the buildings on the condemned portion of the Privett property, taken 15 November, 1956, after each building had been partially demolished. The argument in support of this assignment implies that these buildings had been partially demolished by Privett before the petitioner took possession; and it is submitted “that the pictures are themselves mute evidence that the respondent Privett was stripping the buildings of certain parts which he considered of value and that he had done so before possession was surrendered to the Commission.”

Petitioner’s witness Southall had identified these photographs as representing the condition of these buildings on 15 November, 1956, “the day the first work was done by the Commission.” His testimony is silent as to whether the partial demolition of the buildings when the photographs were taken had been effected by Privett or by petitioner.

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NORTH CAROLINA STATE HIGHWAY, ETC. v. Privett
99 S.E.2d 61 (Supreme Court of North Carolina, 1957)

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Bluebook (online)
99 S.E.2d 61, 246 N.C. 501, 1957 N.C. LEXIS 481, Counsel Stack Legal Research, https://law.counselstack.com/opinion/north-carolina-state-highway-public-works-commission-v-privett-nc-1957.