#### THOMAS GREER, et al. v. BOARD OF COMMISSIONERS OF WATAUGA COUNTY et al.

(Filed 15 December, 1926.)

1. Reference — Evidence—Findings of Fact — Appeal and Error — Review.

Upon tbe coming in of tbe report of tbe referee, it is required of tbe trial judge to pass upon tbe evidence and tbe findings of fact, with the power to change or modify tbe findings upon supporting evidence, and when this is done in conformity with tbe law, the findings so made are not reviewable on appeal in the Supreme Court.

2. Same — Presumptions.

Where tbe Superior Court judge reverses tbe conclusions of law of tbe referee and tbe record is silent as to any findings of fact made by him, it will be presumed that be approved of the findings of fact by tbe referee set out in the record.

3. Same — Conclusions of Daw — Record.

Where the plaintiff seeks to recover damages for the taking of bis land for the use of a public highway, without compensation, and the cause has been referred to a referee, who has found as a fact that the special advantages will equally offset the value of the land so taken, a conclusion of law of tbe judge thereon awarding plaintiff additional damages without change in the referee’s findings of fact, is unsupported by the facts found and the cause will be remanded' to be proceeded with in tbe due course and practice of' tbe courts.

Civil actioN, before Lane, J., at September Term, 1926, of Wa-tauga.

The plaintiff instituted an action against the board of county commissioners and the good road commission of Watauga County, alleging that the defendants “without any condemnation proceedings, and without the consent of plaintiff, and without any notice to plaintiff, entered upon” the lands of plaintiff and appropriated part of his land; and, further, that in the construction of the road, certain personal property, to wit, rails and corn, was destroyed, and also certain fruit trees, and that the total damage suffered by him by reason of such unlawful taking was $3,500.

By consent of the parties, the matter was referred to J. H. Burke as referee, who was authorized to hear the entire controversy and to report to the court his findings of fact and conclusions of law. Thereupon the referee heard all of the evidence and argument of counsel and filed a report.

The referee found that the plaintiff had suffered damage in the sum of $1,065.00, but paragraph nine of his report is as follows: “That the plaintiff received special benefits from the construction of the highway, which was not common to other landowners along said highway, *715in. that tbe highway made accessible a very fine view, suitable for development, and by so doing greatly enhanced the value of the plaintiff’s property, and the benefits to the plaintiff on this occount, which is found not to be common to other property owners, in a sum equal to or greater than the sum of $1,065; and I find the benefits to the plaintiff to be $1,065, which is found to be a proper set-off as against the items found as damages to the plaintiff, and that after deducting the benefits as herein referred to, being special benefits, that the plaintiff has not sustained any damages.

“Conclusions of Law: That upon the foregoing findings of fact, I conclude that as a matter of law, the plaintiff is not entitled to recover any sum whatever, for the reason that the special benefits received fully cover any damage that he sustained otherwise.

J. H. Bukke, Referee

The plaintiff duly filed exceptions to the referee’s report as follows: “That the plaintiff excepts and objects to Item No. 9 of the referee’s report, for the reason that the same is against the greater weight of the evidence, and for the further reason that there is no evidence in the record of any special benefits received by the plaintiff over and above the general benefit received by other landowners through whose land the highway was constructed.”

The matter came on for hearing upon the report and exception thereto, and the following judgment was rendered: “This cause coming on to be heard before his Honor, Henry P. Lane, judge presiding, upon exceptions filed to the report of the referee in this cause, and being heard, it is considered and adjudged by the court that the exceptions filed by the plaintiff to the referee’s report be, and the same are hereby overruled and reversed:

It is, therefore, upon motion of T. C. Bowie, attorney for plaintiff, considered and adjudged that the plaintiff recover of the defendant the sum of $1,065 and the costs of this action to be taxed by the clerk.

Henry P. Lane, Judge Presiding.”

From the judgment so rendered the defendant appealed.

T. C. Bowie for plaintiff.

Brown & Bingham and F. A. Linneg for defendant.

Brogden, J.

The trial judge sustained the exception to the referee’s report, and rendered judgment for the plaintiff without finding any facts.

The referee found the facts, and also found as a conclusion of law upon such facts that the plaintiff was not entitled to recover for the *716reason “that tbe plaintiff received special benefits from tbe construction of tbe highway wbicb was not common to other landowners along said highway, in that tbe bigbway made accessible a very fine view, suitable for development, and by so doing greatly enhanced tbe value of plaintiff’s property, and tbe benefits to tbe plaintiff on this account, wbicb is found not to be common to other property owners, in a sum equal to or greater than tbe sum of $1,065, . . . and that after deducting tbe benefits as herein referred to, being special benefits, that tbe plaintiff has not sustained any damages.”

“Tbe Judge having made no specific findings of fact, be is presumed to have adopted those of tbe referee.But tbe finding of tbe referee was adverse, and we cannot review bis findings of fact. Tbe judge below possessed that power, but be approved tbe referee’s findings.” McEwen v. Loucheim., 115 N. C., 348. If tbe trial judge bad found tbe facts on exceptions filed to tbe referee’s report, such findings are not reviewable in tbe Supreme Court, if there is evidence to support them. Miller v. Groome, 109 N. C., 148; Dumas v. Morrison, 175 N. C., 431; Caldwell v. Robinson, 179 N. C., 518; Hardy v. Thornton, ante, 296.

Tbe judge, upon exceptions duly filed to a referee’s report, may set aside, modify or confirm tbe report of tbe referee, but if be does not find tbe facts, tbe facts found by tbe referee are presumed to have been adopted by tbe judge. So that, in this case, we have this situation: Tbe referee has found, as a fact, that tbe construction of tbe bigbway made available to tbe plaintiff certain special benefits not common to other property in tbe neighborhood and similarly situated. By reason of tbe failure of tbe trial judge to find tbe facts in regard to tbe special benefits alleged, tbe finding by tbe referee stands.

Therefore, tbe judgment is not supported by tbe facts found.

In Davis v. Davis, 184 N. C., 108, tbe proper procedure, in such cases, is stated thus: “When exceptions are taken to a referee’s findings of fact and law, it is tbe duty of tbe judge to consider tbe evidence and give bis own opinion and conclusion, both upon tbe facts and tbe law. He is not permitted to do this in a perfunctory-way, but be must deliberate and decide as in other cases — use bis own faculties in ascertaining tbe truth, and from bis own judgment as to fact and law. This is required not only as a check upon tbe referee and a safeguard against any possible error on bis part, but because be cannot review tbe referee’s findings in any other way.”

Upon tbe present record, therefore, in accordance with established principles of law, tbe judgment is set aside and tbe cause remanded for further consideration of tbe report of tbe referee, in conformity to tbe course and practice of tbe Court.

Remanded.