Nantahala Power & Light Co. v. Moss

*210 ClaeksoN, J.,

concurring in result: Tbe principle of law governing tbis case is stated as follows in McCandless v. United States, 298 U. S., 343 : “Tbe rule is well settled tbat, in condemnation cases, tbe most profitable use to wbicb tbe land can probably be put in the reasonably near future may be shown and considered as bearing upon tbe market value; and tbe fact tbat sucb use can be made only in connection ivith other lands does not necessarily exclude it from consideration if the possibility of such connection is reasonably sufficient to affect market value. Olson v. United States, 292 U. S., 246 (255-6), 78 L. Ed., 1244 .” (Italics mine).

In tbe case of Olson v. United States, supra, Mr. Justice Butler, speaking for tbe Court, said, at page 248: “The only substantial question is wbetber, on tbe facts disclosed by tbe record and others of wbicb judicial notice may be taken, tbe actual use and special adaptability of petitioners’ sborelands for tbe flowage and- storage of water, tbat inter alia will be available for tbe generation of power, may be taken into consideration in ascertaining tbe just compensation to wbicb petitioners are entitled . . . (p. 255). Just compensation includes all elements of value tbat inhere in tbe property, but it does not exceed market value fairly determined. Tbe sum required to be paid tbe owner does not depend upon tbe uses to wbicb be has devoted bis land but is to be arrived at upon just consideration of all tbe uses for wbicb it is suitable. Tbe highest and most profitable use for wbicb „tbe property is adaptable and needed or likely to be needed in tbe reasonably near future is to be considered, not necessarily as tbe measure of value, but to tbe full extent tbat tbe prospect of demand for sucb use affects tbe market value while tbe property is privately held. . . . (citing authorities). Tbe fact tbat tbe most profitable use of a parcel can be made only in combination with other lands does not necessarily exclude tbat use from consideration if tbe possibility of combination is reasonably sufficient to affect tbe market value. Nor does tbe fact tbat it may be or is being acquired by eminent domain negative consideration of availability for use in tbe public service. New York v. Sage, 239 U. S., 57 (61), ( 60 L. Ed., 143, 146 , 36 S. Ct., 25 ). It is common knowledge tbat public service corporations and others having tbat power frequently are actual or potential competitors not only for tracts held in single ownership but also for rights of way, locations, sites and other areas requiring tbe union of numerous parcels held by different owners. And, to tbe extent tbat probable demand by prospective purchasers or condemnors affects market value, it is to be taken into account. Mississippi & R. River Boom Co. v. Patterson, 98 U. S., 403 ( 25 L. Ed., 206 ), ubi supra. But tbe value to be ascertained does not include, and tbe owner is not entitled to compensation for, any element resulting subsequently to or because of tbe taking. *211 Considerations that may not reasonably be held to affect market value are excluded. Value to the taker of a piece of land combined with other parcels for public use is not the measure of or a guide to the compensation to which the owner is entitled. . . . (p. 25?). In respect of each item of property that value may be deemed to be the sum which, considering all the circumstances, could have been obtained for itthat is, the amount that in all probability would have been arrived at by fair negotiations between an owner willing to sell and a purchaser desiring to buy. In making that estimate there should be taken into account all considerations that fairly might be brought forward and reasonably be given substantial weight in such bargaining. Brooks-Scanlon Corp. v. United States, 265 U. S., 106 (124), ( 68 L. Ed., 934, 941 , 44 S. Ct., 471 ). The determination is to be made in the light of all facts affecting the market value that are shown by the evidence taken in connection with those of such general notoriety as not to require proof.”

The most recent decision, which I think is directly in point, is the case of United States v. Powelson, 118 Fed. (2d), 79. This was an opinion from this circuit, written by Judge Parker. Quoting from the Powelson opinion, Judge Parker says, at p. 84: “The fact that the most profitable use of a parcel can be made only in combination with other lands does not necessarily exclude that use from consideration if the possibility of combination is reasonably sufficient to affect market value. Nor does the fact that it may be or is being acquired by eminent domain negative consideration of availability for use in the public service. New York v. Sage, 239 U. S., 57 (61). It is common knowledge that public service corporations and others having that power frequently are actual or potential competitors, not only for tracts held in single ownership but also for rights of way, locations, sites and other areas requiring the union of numerous parcels held by different owners. And, to the extent that probable demand by prospective purchasers or condemnors affects market value, it is to be taken into account. Boom Co. v. Patterson, ubi supra,” citing and quoting from Olson v. U. S., supra.

In North Carolina the principle above enumerated is stated in Brown v. Power Co., 140 N. C., 336 , and R. R. v. Gahagan, 161 N. C., 190 .

In the Brown case, supra, pp. 341-345, it is written: “It is well settled that when, for the purpose of meeting and providing for a public necessity, the citizen is compelled to sell his property or permit it to be subjected to a temporary or permanent burden, he is entitled by way of compensation, to its actual market value. Lewis on Em. Domain, sec. 478. The difficulty arises not so much in fixing the standard of the right, as in ascertaining what elements or factors may be shown in applying the standard. Certainly where by compulsory process and for the public good the State invades and takes the property of its citizens, *212 in the exercise of its highest prerogative in respect to property, it should pay to him full compensation. The highest authorities are to that effect. 'The 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 the capabilities of the property and all the uses to which it may be applied or for which it is adapted may 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.’ Lewis Em. Dom., supra. Mr. Justice Field, in Boom Co. v. Patterson, 98 U. S., 403 , says: 'In determining the value of land appropriated for public purposes, the same considerations are to be regarded as in a sale of property between private parties. The inquiry in such cases must be what is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted; that is to say, what is it worth from its availability for valuable uses. Property is not to be deemed worthless because the owner allows it to go to waste, or be regarded as valueless because he is unable to put it to any use. Others may be able to use it. Its capability of being made thus available gives it a market value which can be readily estimated.’ In L. R. Junction Ry. v. Woodruff, 49 Ark., 381 ( 4 Am. St. Rep., 51 ), it is said: 'Since, then, the market value is the true criterion of damages, we are led to inquire — what is the market value ? The word market conveys the idea of selling and the market value, it would seem to follow, is the selling value. It is the price which an article will bring when offered for sale in the market. It is the highest price which those having the ability and the occasion to buy are willing to pay.’ Referring to the range which the testimony may take in ascertaining the market value, the Court says: 'As a general guide to the range which the testimony should he allowed to assume, we think it safe to say that the landowner should be allowed to state, and have his witnesses state, every fact concerning the property which he would naturally be disposed to adduce in order to place it in an advantageous light if he were attempting t.o negotiate a sale of it to a private individual. On the other hand, the jury and the opposing counsel, for the information of the jury, should he allowed to make every inquiry touching the property which one about to buy would feel it to his interest to make.’ 'If a tract of which the whole or a part is taken for public use, possesses a special value to the owner, which can he measured by money, he is entitled to have that value considered in the estimate of compensation and damages.’ 15 Cyc., 724; Cooley Const. Lim., secs. 567-8. . . . (p. 345). The rule is thus stated by Mr. Lewis (Lewis Em. Dom., supra) : 'The market value of property includes its value for any use to which it may he put. If, by *213 reason of its surroundings, or its natural advantages, or its artificial improvements, or its intrinsic character, it is peculiarly adapted to some particular use, all the circumstances which make up this adaptability may be shown and the fact of such adaption may be taken into consideration in estimating the compensation. Some of the authorities hold that its value for a particular use may be proved, but the proper inquiry is, what is its market value in view of any use to which it may be applied and of all the uses to which it is adapted.’ ”

Arnold H. Yanderhoof, a civil engineer for 30 years, who had wide experience in hydroelectric developments, testified for respondents in regard to the use connected with other lands sufficient to be submitted to the jury: “It is my opinion it would be feasible to do it, practical. The power facilities are not great enough in the country for the demand.”

The material vice, I think, in the case is the admission of the following questions and answers, elicited on the part of respondents from their witness Yanderhoof: “Q. Now, I will ask you this question: Mr. Yanderhoof, it is alleged in the petition of the Nantahala Power & Light Company, and also these landowners admit it in their answer, that the diversion of this river through their property, and the building of the tunnel are essential and necessary in order for the Nantahala Power & Light Company to develop its proposition, that is alleged and admitted. I wish you would state whether or not, in your opinion, the Nantahala Power & Light Company could probably or profitably develop and operate its project without the diversion of the Tuckaseegee River under the mountain and away from these landowners’ property? (Petitioner objects — overruled—exception.) Ans.: I am of the opinion, without making a careful study of it, that the Nantahala Power & Light Company could develop power at the base of their dam, but without diverting the water from this stream. The available head would be greatly reduced and, therefore, the power which could be developed would be greatly reduced. Q. Then in forming your opinion as to the market value of these landowners’ property you took into consideration in giving the larger figure that it ivas a part and parcel of this hydroelectric development? (Petitioner objects — overruled'—exception.) Ans.: I did. Q. And in making your calculations and figures when you considered it and treated it as you say it should be, as a part and parcel of the larger development, you placed the higher value of the two on it? (Petitioner objects — overruled—exception.) Ans.: Yes, sir.” There was other evidence of similar import objected to.

In the charge of the court below based on this incompetent evidence, it is said: “On the re-direct examination he said in substance it would be an advisable proposition to build a dam on the respondents’ property *214 before the water was diverted, that the demand for electric power is much greater at this time than the supply. He says he has not made his figures for a plant under the dam; that the most practicable place would be below the dam and at the southern end of the property which would give something over 400 foot fall; that he has made his estimate on the basis of a unit by the owners, and also in connection with the petitioner j that the petitioner could not profitably or practically 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.”

In Ayden v. Lancaster, 197 N. C., 556 (559), this Court quotes with approval the following language from the case of U. S. v. Chandler-Dunbar Co., 229 U. S., 53 , 57 Law. Ed., 1063: “The value should be fixed as of the date of the proceedings with reference to the loss the owner sustains, considering the property in its condition and situation at the time it is taken and not as enhanced by the purpose for which it is taken.”

I think in the charge this incompetent evidence was not so erased from the minds of the jury that they could render an impartial and unpreju-dicial verdict. After the jury had deliberated until the following morning they requested further instructions. I think these instructions did not eliminate the baneful effect of this incompetent evidence.

There is nothing in the evidence to indicate that these property owners, whose land was taken by the petitioner, wanted anything more than just compensation. There is no evidence that they were seeking to “hold up” or force “strategic” values. Some of the other phases dealt with in the main opinion I think were not so prejudicial as to merit the serious consideration given them. The judge trying the case was learned in the law and in the trial of this cause seemed to be familiar with the authorities and the subject and gave study to the case. The case was well tried, but in so long and varied attitudes (the record contains 420 pages) casualties will sometimes happen to the best of trial judges.