{
  "id": 8548406,
  "name": "DUKE POWER COMPANY, Petitioner v. GEORGE H. PARKER and wife, HILDA W. PARKER; W. O. McGIBONY, Trustee for the Federal Land Bank of Columbia; FEDERAL LAND BANK OF COLUMBIA, Respondents",
  "name_abbreviation": "Duke Power Co. v. Parker",
  "decision_date": "1973-05-23",
  "docket_number": "No. 7329SC94",
  "first_page": "242",
  "last_page": "245",
  "citations": [
    {
      "type": "official",
      "cite": "18 N.C. App. 242"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "16 S.E. 2d 453",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "220 N.C. 57",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11298944
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/220/0057-01"
      ]
    },
    {
      "cite": "156 S.E. 2d 244",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "271 N.C. 318",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8563772
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/271/0318-01"
      ]
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  ],
  "analysis": {
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  "last_updated": "2023-07-14T21:14:36.293491+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Parker and Hedrick concur."
    ],
    "parties": [
      "DUKE POWER COMPANY, Petitioner v. GEORGE H. PARKER and wife, HILDA W. PARKER; W. O. McGIBONY, Trustee for the Federal Land Bank of Columbia; FEDERAL LAND BANK OF COLUMBIA, Respondents"
    ],
    "opinions": [
      {
        "text": "BROCK, Judge.\nPetitioner assigns as error the instructions of the trial judge to the jury upon the measure of damages applicable to the condemnation of an easement for transmission lines. Defendant argues that the trial judge, in effect, instructed the jury to arrive at its determination of damages as though the fee title to the right-of-way was being condemned. Petitioner cites Power Co. v. Rogers, 271 N.C. 318, 156 S.E. 2d 244.\nIn our opinion the error in Power Co. v. Rogers is not present in the case before us. We agree with petitioner that the instructions given by the trial court would have been more satisfactory had they included the rule as stated in Light Co. v. Carringer, 220 N.C. 57, 16 S.E. 2d 453, as follows:\n\u201cThe 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\u2019 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.\u201d\nNevertheless, we find that the trial judge instructed as follows:\n\u201cNow, the Court instructs you that the yard stick or guide to be used in determining what the fair and ample compensation for the taking of the property of the respondents in this case constitutes the difference between the fair market value of the entire tract of land which was some 88 acres immediately before this property was taken and its fair market value of the property immediately after the right of way was taken.\u201d\nFurther in the charge the trial judge instructed:\n\u201cMembers of the jury, in arriving at the fair market value of the tract of land immediately after the taking, you will consider the fact that the Power Company is taking only an easement in the land appropriated rather than a fee simple title.\u201d\nWe recognize petitioner\u2019s criticism of certain portions of the judge\u2019s charge and conceded technical defects. However, when we read the charge as a whole, as we must do, it is our opinion that the jury understood they should not award damages as though the fee title in the right-of-way was being condemned, but should award only those damages resulting from the imposition of the easement upon the property.\nNo error.\nJudges Parker and Hedrick concur.",
        "type": "majority",
        "author": "BROCK, Judge."
      }
    ],
    "attorneys": [
      "Crowell and Crowell, by Harold J. Pi\u00f1ales, and William I. Ward, Jr., for petitioner-appellant.",
      "Prince, Youngblood & Massagee, by George Carson, II, for respondents-appellees."
    ],
    "corrections": "",
    "head_matter": "DUKE POWER COMPANY, Petitioner v. GEORGE H. PARKER and wife, HILDA W. PARKER; W. O. McGIBONY, Trustee for the Federal Land Bank of Columbia; FEDERAL LAND BANK OF COLUMBIA, Respondents\nNo. 7329SC94\n(Filed 23 May 1973)\nEminent Domain \u00a7 5 \u2014 \u25a0 condemnation of right-of-way for power lines \u2014 instructions as to damages\nIn this proceeding brought by a power company to condemn a right-of-way and easement for its transmission lines, the charge of the court, when read as a whole, did not instruct the Jury to arrive at its determination of damages as though the fee title to the right-of-way was being condemned.\nAppeal by petitioner from Wood, Judge, 11 September 1972 Session of Superior Court held in Henderson County.\nThis is a condemnation proceeding instituted by Duke Power Company as petitioner to acquire a right-of-way and easement for transmission lines between its Pisgah Forest Substation and the Skyline Substation in Henderson County.\nCommissioners were appointed by the Clerk of Superior Court in Henderson County, and they returned an award for damages in the amount of $12,000. Petitioner excepted to the commissioners\u2019 report. The clerk confirmed it, and petitioner demanded a trial by jury.\nThe date of. the taking of the right-of-way was 26 October 1970, and petitioner acquired possession on 17 February 1971. The easement and right-of-way crossed a portion of an 88-acre tract of land owned by respondents in the Mills River Township, Henderson County, approximately 10 miles from the Hender-sonville city limits. The principal right-of-way is 150 feet wide by 1105.8 feet centerline distance and consists of 3.81 acres. The easement includes tree cutting rights on each side of the extension lines of the right-of-way, and a 30 foot access right-of-way consisting of 1.29 acres.\nThe rights acquired by petitioner are subject to respondents\u2019 right to use the right-of-way property in any manner not inconsistent with the rights acquired by petitioner. The fee of the property remained in respondents.\nThe parties stipulated that the only issue to be answered by the jury was: \u201cWhat amount are the respondents, land owners, entitled to recover of the petitioner, Duke Power Company, for the taking of the right of way across their lands?\u201d\nPetitioner presented evidence which tended to show the following: that the. highest and best use of the property immediately prior to the taking was for residential homesites; that one realtor and appraiser testified that.in his opinion the difference between the fair market value .of the entire tract immediately before the taking of the right-of-way and immediately after the taking was $4,350; that another realtor and appraiser agreed that the best use of the property was for residential homesites, and stated that in his opinion- the difference in value before/after the taking of the right-of-way was $4,800.\nRespondents presented evidence which tended to show the following: that the best use of the property was for residential homesites; that a landowner testified that in his opinion the difference in the fair market value before and after the taking of the right-of-way was $25,050; that a dairy farmer familiar with respondents\u2019 property stated that in his opinion the difference in value was $20,230; that two realtors testified as to their opinion of the difference in value \u2014 one stating the difference to be $24,350, another stating it to be $21,600.\nA jury granted an award of $16,500 damages to respondents.\nPetitioner appealed.\nCrowell and Crowell, by Harold J. Pi\u00f1ales, and William I. Ward, Jr., for petitioner-appellant.\nPrince, Youngblood & Massagee, by George Carson, II, for respondents-appellees."
  },
  "file_name": "0242-01",
  "first_page_order": 266,
  "last_page_order": 269
}