{ "id": 8566932, "name": "C. M. COGDILL v. NORTH CAROLINA STATE HIGHWAY COMMISSION; - and - GEORGE G. WESTFELDT, JR. v. NORTH CAROLINA STATE HIGHWAY COMMISSION", "name_abbreviation": "Cogdill v. North Carolina State Highway Commission", "decision_date": "1971-07-30", "docket_number": "No. 100", "first_page": "313", "last_page": "327", "citations": [ { "type": "official", "cite": "279 N.C. 313" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "22 S.E. 2d 633", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "222 N.C. 242", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629744 ], "opinion_index": 0, "case_paths": [ "/nc/222/0242-01" ] }, { "cite": "152 S.E. 2d 448", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "269 N.C. 417", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564002 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/nc/269/0417-01" ] }, { "cite": "131 S.E. 2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "259 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560878 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/259/0400-01" ] }, { "cite": "153 S.E. 2d 737", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "270 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565183 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/270/0050-01" ] }, { "cite": "179 F. 2d 377", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1255867 ], "year": 1950, "opinion_index": 0, "case_paths": [ "/f2d/179/0377-01" ] }, { "cite": "130 S.E. 205", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "190 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609697 ], "opinion_index": 0, "case_paths": [ "/nc/190/0554-01" ] }, { "cite": "129 S.E. 2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "258 N.C. 617", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561935 ], "opinion_index": 0, "case_paths": [ "/nc/258/0617-01" ] }, { "cite": "157 S.E. 2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "271 N.C. 662", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566385 ], "opinion_index": 0, "case_paths": [ "/nc/271/0662-01" ] }, { "cite": "101 S.E. 2d 668", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 590", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628037 ], "opinion_index": 0, "case_paths": [ "/nc/247/0590-01" ] }, { "cite": "180 S.E. 2d 111", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "278 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560771 ], "opinion_index": 0, "case_paths": [ "/nc/278/0497-01" ] }, { "cite": "155 S.E. 2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "271 N.C. 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562382 ], "opinion_index": 0, "case_paths": [ "/nc/271/0040-01" ] }, { "cite": "144 S.E. 2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "265 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575375 ], "opinion_index": 0, "case_paths": [ "/nc/265/0373-01" ] }, { "cite": "166 S.E. 2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "275 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558275 ], "opinion_index": 0, "case_paths": [ "/nc/275/0175-01" ] }, { "cite": "112 S.E. 2d 751", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "252 N.C. 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617275 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/252/0040-01" ] }, { "cite": "152 S.E. 2d 341", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "269 N.C. 81", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561869 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/269/0081-01" ] } ], "analysis": { "cardinality": 1000, "char_count": 29072, "ocr_confidence": 0.554, "pagerank": { "raw": 1.3141366519896705e-06, "percentile": 0.9895812458564186 }, "sha256": "259fb25f06c33385e5c55874751a4f26d7a87c2ecc2c5cf056763701e08a3386", "simhash": "1:b7f6b56ac12e87b3", "word_count": 4957 }, "last_updated": "2023-07-14T15:36:58.436463+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "C. M. COGDILL v. NORTH CAROLINA STATE HIGHWAY COMMISSION \u2014 and \u2014 GEORGE G. WESTFELDT, JR. v. NORTH CAROLINA STATE HIGHWAY COMMISSION" ], "opinions": [ { "text": "MOORE, Justice.\nThe parties stipulated that the hearing before Judge Thorn-burg was for a determination of all issues except damages, under G.S. 136-108.\nG.S. 136-108 provides:\n\u201cDetermination of issues other than damages. \u2014 After the filing of the plat, the judge, upon motion and ten (10) days\u2019 notice by either the Highway Commission or the owner, shall, either in or out of term, hear and determine any and all issues raised by the pleadings other than the issue of damages, including, but not limited to, if controverted, questions of necessary and proper parties, title to the land, interest taken, and area taken.\u201d\nDefendant contends that the trial court erred in hearing evidence of damages to the quarry and in making findings that the value of Cogdill\u2019s lease and the fair market value of the fee simple reversionary interest had been substantially reduced by reason of the flooding and the probability of future flooding.\nMuch of the testimony concerning damages to plaintiffs\u2019 property was introduced without objection. Where there is no objection to the admission of evidence, the competency of the evidence is not presented. State v. McKethan, 269 N.C. 81, 152 S.E. 2d 341; Abbitt v. Bartlett, 252 N.C. 40, 112 S.E. 2d 751; Stansbury, N. C. Evidence \u00a7 27 (2d ed., 1963) [hereinafter cited as Stansbury]. This Court ordinarily will not consider questions not properly presented by objections duly made. State v. Brooks, 275 N.C. 175, 166 S.E. 2d 70; Stansbury, supra; 1 Strong, N. C. Index 2d, Appeal and Error \u00a7\u00a7 1 and 24. Some evidence as to damages, however, was allowed over defendant\u2019s objection. The trial court found that the \u201ctaking\u201d in this case resulted from a permanent and continuing nuisance created by the fill for 1-26, and allowed the evidence as to damages and made findings of fact based upon such evidence only \u201cfor the purpose of this hearing.\u201d The trial court\u2019s findings as to damages would not be competent at the trial on the issue of damages. The evidence as to damages was competent and necessary for the limited purpose of making a prima facie showing that the plaintiffs had suffered substantial and measurable damages. In Midgett v. Highway Commission, 265 N.C. 373, 144 S.E. 2d 121, a case in which the plaintiff claimed damages to his property by flooding caused by a highway fill, the Court said:\n\u201c ... In an action for damages based on an alleged nuisance, the injury suffered by plaintiff must be substantial. [Citations omitted.] . . . One who seeks damages for the taking of property by the sovereign by reason of the alleged creation and maintenance by it of a permanent and continuing nuisance must make a prima facie showing of substantial and measurable damages.\u201d\nThis assignment of error is overruled.\nDefendant next contends that the findings of fact made by the trial court were in conflict with the stipulated and competent evidence and were based on incompetent testimony of the plaintiffs and plaintiffs\u2019 witnesses, in that the testimony of plaintiff Cogdill as to various elevations was in conflict with those shown on the map which were stipulated to be correct, defendant contending that it would appear conclusive that the flood water would have to reach an elevation of 2,067.6 feet to break over the dike at the old quarry, and that before it would do so, it would flood plaintiffs\u2019 quarry since the spillway along this quarry is 5 feet below the dike. However, the plaintiffs\u2019 witnesses, Cogdill and Lance, testified that the water did back up into the old quarry pond, broke through the dike, and then entered plaintiffs\u2019 quarry. Any inconsistency in the testimony between plaintiffs\u2019 witnesses, defendant\u2019s witness, and the maps was a matter to be resolved by the trial court in its findings of fact. Reynolds Co. v. Highway Commission, 271 N.C. 40, 155 S.E. 2d 473. \u201cIn a nonjury trial, in the absence of words or conduct indicating otherwise, the presumption is that the judge disregarded incompetent evidence in making his decision.\u201d City of Statesville v. Bowles, 278 N.C. 497, 180 S.E. 2d 111. And the court\u2019s findings of fact will not be reversed unless based only on incompetent evidence. Bizzell v. Bizzell, 247 N.C. 590, 101 S.E. 2d 668; Stansbury \u00a7 4A; 7 Strong, N.C. Index 2d, Trial \u00a7 58. If the findings are supported by competent evidence, they are binding on this Court even though there is evidence to the contrary. Huski-Bilt, Inc. v. Trust Co., 271 N.C. 662, 157 S.E. 2d 352; Chappell v. Winslow, 258 N.C. 617, 129 S.E. 2d 101.\nDefendant further contends that the court erred in admitting the testimony of Claude Lance, a witness for the plaintiff. Lance testified that he had worked on the Westfeldt property for fifteen years. He further testified:\n\u201cI am familiar with the Atled bottomlands that lie upstream from the fill before the highway was constructed. We had sufficient drainage ditches. I mean there were several ditches. I\u2019d say there is at least four or more. These drain ditches carried off water during time of rainfall. When the fill was built by the Highway Commission they put culverts in. There were a few places that they did not. I mean the little small places, but in the main places they did. They didn\u2019t culvert all of them.\n\u201cSome of the drain ditches were eight or ten foot open ditches. I observed the culverting work taking place on the Atled property before the fill was put in.\n\u201cQ. Did you form an opinion satisfactory to yourself at that time as to whether or not the space at the Cane Creek Bridge and the three 7x7 box culverts and the 36 inch corrugated pipe would be sufficient to carry off the flood waters of the Kimsey Creek and those drain ditches and Cane Creek in time of high water?\n\u201cObjection. Overruled. Exception No. 5.\n\u201cA. I definitely did and I . . .\n\u201cMr. McDaniel: Wait just a minute.\n\u201cQ. You did?\n\u201cObjection. Overruled. Exception No. 6.\n\u201cQ. What was your opinion?\n\u201cObjection. Overruled. Exception No. 7.\n\u201cA. I said it would not carry it. They were not adequate.\u201d\nSimilar testimony by plaintiff Cogdill was introduced over defendant\u2019s objection. Defendant contends that Lance and Cogdill were not experts and that under the conditions existing it would require an expert engineer to give an opinion as to the sufficiency of the drainage provided. Lance testified that he was familiar with the floods which had occurred on this property over the years; that it had flooded before this particular occasion ; that before the highway was constructed they had several ditches and these ditches carried off the water during the time of rainfall; and that he observed the culvert work taking place before the fill was put in. Cogdill testified he had been familiar with this property 52 years and had operated a quarry there 21 years.\nWe hold the opinion testimony of Cogdill and Lance is competent because of their knowledge of the terrain and of the drainage problems involved. An expert witness is one better qualified than the jury to draw appropriate inferences from the facts. Stansbury \u00a7 132 states:\n\u201cThe question, then, in every case involving expert testimony, ought to be, Is this witness better qualified than this jury to form an opinion from these facts? If the answer is Yes, his opinion is admissible whether he is called a \u2018true expert\u2019 or is mildly disparaged by being classified as a \u2018witness specially qualified as to facts,\u2019 or an \u2018expert on the facts,\u2019 or \u2018not strictly an expert.\u2019 \u201d\nThis is stated in State v. Brodie, 190 N.C. 554, 130 S.E. 205:\n\u201cIt is familiar principle that one who is called to testify is usually restricted to facts within his knowledge; but if by reason of opportunities for observation he is in a position to judge of the facts more accurately than those who have not had such opportunities, his testimony will not be excluded on the ground that it is a mere expression of opinion.\u201d\nOr, as said in Chappell v. Winslow, supra, a case involving the sufficiency of a drainage system (headnote 6):\n\u201cPersons who live and work in a locality of flat land with constant problems of drainage of surface waters may testify that the drainage of an additional specified acreage into a ditch would cause the ditch to overflow periodically, and may testify as to the size of ditches and culverts which would be necessary to carry such additional drainage, the testimony being testimony of common observers as to the results of their observation.\u201d\nAccord, Stansbury \u00a7 125. This assignment is overruled.\nA more serious question is presented by the exclusion of the opinion evidence offered by the defendant from the witness, C. R. Edgerton. Edgerton was an admitted expert in the field of hydraulic engineering and design, who approved the plans for the drainage in this area and who went over the area on the grounds prior to construction and also after the flooding on the dates in question. A statement by Judge Sanborn in Builders Steel Co. v. Commissioner of Internal Revenue, 179 F. 2d 377 (8th Cir., 1950), is pertinent:\n\u201cIn the trial of a non jury case, it is virtually impossible for a trial judge to commit reversible error by receiving incompetent evidence, whether objected to or not. . . . [But he] can easily get his decision reversed by excluding evidence which is objected to, but which, on review, the appellate court believes should have been admitted.\u201d\nThe witness Edgerton was asked: \u201cBased upon your analysis and the investigation and your qualifications as an expert witness and an expert engineer, hydrographic engineer, do you have an opinion satisfactory to yourself as to the effects of the interstate highway and culverts built for the same in the vicinity of the Westfeldt and Cogdill property with respect to the flood waters of October fourth, or fifth, 1964?\u201d The witness answered, \u201cYes,\u201d but was not allowed to give his opinion. For the record, he stated: \u201cFrom a study of the information obtained, it is my opinion that while some minor back water was created by the construction of the 1-26 fill across the floodplains of Cane and Kimsey Creeks, it was not physically possible for it to have caused the break of the dike at the upper end of the quarry.\u201d\nMr. Edgerton also testified for the record after objection was sustained:\n\u201cFrom the analysis and investigation that I made and was made under my supervision, I have an opinion satisfactory to myself that water during October the fourth or fifth, 1964 did not back up from a point where the culvert carries Kimsey Creek under the interstate to a point where the dike is located.\n\u201cIf you draw a line from the top of the triple barrel culvert as indicated on the plat on a straight plane back toward the Cogdill property and water was level with that line, a level line from the top or crown of the triple 7x7 box culvert would go upstream and intersect the bed of the creek approximately 1300 feet from the box culvert or in the area of the elevation 2,057.30 shown on the plaintiffs\u2019 map.\n\u201cQ. Now, Mr. Edgerton, do you have an opinion as to whether under such circumstances as you have just described as to how far it would go back, whether any water would have gone into that area indicated as boundaries of the Cogdill quarry?\n\u201cMr. Hyde: Objection.\n\u201cMr. Bennett: Objection. There\u2019s no evidence that it did.\n\u201cThe Court: Sustained.\n\u201cException No. 16.\n\u201cA. No, it would not.\u201d\nAnother question was then asked Edgerton:\n\u201cQ. Now, Mr. Edgerton, based upon your personal investigation and investigation of your staff, made by your staff under your supervision, have you formed an opinion satisfactory to yourself as to the cause from a hydraulic standpoint of water entering the Cogdill limestone quarry property in October, 1964?\n\u201cMr. Hyde and Mr. Bennett : Objection.\n\u201cThe Court : Sustained. Answer for the record.\n\u201cException No. 19.\n\u201cA. Yes, sir, I have.\n\u201cQ. What is that opinion?\n\u201cMe. Hyde and Me. Bennett: Objection.\n\u201cThe Couet: Sustained. Answer for the record.\n\u201cException No. 20.\n\u201cA. In my opinion the channel along the northwest side of the quarry property was not of sufficient capacity to carry the flood flows occurring in Kimsey Creek and coming through the old quarry and that the dike between the old quarry and the limestone quarry became overtopped and failed due to overtopping.\n\u201cQ. Do you have an opinion from this same investigation mentioned previously as to whether the highway fill of interstate 26 had any effect on this?\n\u201cMe. Bennett: Objection.\n\u201cMe. Hyde: Objection.\n\u201cThe Couet : Sustained. Answer for the record.\n\u201cException No. 21.\n\u201cA. In my opinion the fill had no effect on the high water elevation in the abandoned quarry whatsoever.\u201d\nEdgerton was then asked the following hypothetical question:\n\u201cQ. Mr. Edgerton, if the presiding judge should find, by the greater weight of the evidence in this case, that an excessive rainfall referred to as a flood occurred on or about October 4, 1964, on Kimsey Creek, in Henderson County; that located on Kimsey Creek in a northerly direction from U. S. Highway 1-26 is a tract of land referred to as the Westfeldt Property, containing 5.2 acres, in which is located in the southern area of said tract a rock quarry which was in operation by the plaintiff on October 4, 1964, and prior thereto; that said quarry was bordered on the west by Kimsey Creek; that on the north the quarry is bordered by an area shown on the. map referred to as \u2018Plaintiffs\u2019 Exhibit 8\u2019 as an \u2018abandoned quarry\u2019; that the \u2018abandoned quarry\u2019 on October 4, 1964 contained a dike for the purpose of holding water out of the rock quarry operated by the plaintiff; that the \u2018abandoned quarry\u2019 also contained a spillway which permitted the overflow of water from the \u2018abandoned quarry\u2019 to enter Kimsey Creek; that in the construction of 1-26, there had been constructed a triple barrel culvert 7 foot by 7 foot, through which Kim-sey Creek extended; that at the point of entrance of Kimsey Creek to said culvert the existing headwall elevation was 2,058.75; that the top of the old dike elevation existing on October 4, 1964, was 2,067.60; that on October 4th or October 5th, 1964, the water in Kimsey Creek had spread itself over an area south and west of the rock quarry lands of 5.2 acres because of the excessive rainfall; that on the morning of October 4th or 5th, 1964, the water had risen to a point approximately 12 inches below the top of the culvert and when seen at that time, the dike at the south end of the \u2018abandoned quarry\u2019 had already broken, having found a weak point in the dike, and the water flowing from Kimsey Creek into the \u2018abandoned quarry\u2019 was entering the rock quarry through the dike which had given way \u2014 if the Court should find these facts to be true, by the greater weight of the evidence, have you an opinion satisfactory to yourself as to whether or not back water created by the 1-26 fill and the structures thereunder caused the breaching of the dike located at the south end of the abandoned quarry \u2014 have you an opinion based on those facts?\n\u201cA. Yes.\n\u201cQ. What is your opinion?\n\u201cMr. Hyde: Objection.\n\u201cMr. Bennett: Objection.\n\u201cThe Court: Sustained.\n\u201cException No. 25.\u201d\nThe witness was allowed to answer for the record:\n\u201cA. In my opinion in order \u2014 in my opinion the back water from 1-26 could not have caused the breach in the dike below the abandoned quarry. To do so would have required the water at the 1-26 fill to reach an elevation at least 8.85 feet above the top of the headwall. Since it did not reach near this elevation, it would be physically impossible for this to have been the cause.\n\u201cQ. I see. Now, if the Court should find the facts to be true, by the greater weight of the evidence, which has just been recited to you in the previous question, have you an idea \u2014 opinion, rather, have you an opinion satisfactory to yourself as to what did cause the dike to break?\n\u201cA. Yes, I have.\n\u201cQ. All right, now what is your opinion?\n\u201cMr. Bennett: Objection.\n\u201cMr. HYDE: Objection.\n\u201cThe Court: Sustained.\n\u201cException No. 26.\u201d\nThe witness was allowed to answer for the record:\n\u201cA. In my opinion, the flood waters reaching the abandoned quarry were in a greater quantity than Kimsey Creek below the quarry could adequately discharge, therefore, creating an impoundment in the abandoned quarry which overtopped the dike causing it to fail.\u201d\nSome of Edgerton\u2019s testimony was properly excluded because it was based upon hearsay as to the height of the flood marks on the highway fill. An engineer for defendant measured these flood marks but for some reason was not called as a witness. However, the questions set out above were based upon facts known to Edgerton, or, as in the hypothetical questions, based upon facts known to Edgerton and testimony of the plaintiffs\u2019 witness Allison. From Allison\u2019s testimony the judge could have found that the dike at the old quarry broke allowing the water to pour into the new quarry before the box culverts at the fill were full \u2014 in fact, while these culverts lacked some 12 inches being full.\nWhere an expert witness testifies as to facts based upon his personal knowledge, he may testify directly as to his opinion. Rubber Co. v. Tire Co., 270 N.C. 50, 153 S.E. 2d 737; Service Co. v. Sales Co., 259 N.C. 400, 131 S.E. 2d 9; Stansbury \u00a7 136; 31 Am. Jur. 2d, Expert and Opinion Evidence \u00a7 37 (1967); 3 Strong, N. C. Index 2d, Evidence \u00a7 49. Generally, however, an expert witness cannot base his opinion on hearsay evidence. Todd v. Watts, 269 N.C. 417, 152 S.E. 2d 448; Stansbury \u00a7\u00a7 136 and 143; 2 Jones on Evidence \u00a7 421 (5th ed., 1958); 32 C.J.S. Evidence \u00a7 546(63) (1964). And when the facts are not within the knowledge of the witness himself, the opinion of an expert must be upon facts supported by evidence, stated in a proper hypothetical question. Todd v. Watts, supra. If the expert witness has personal knowledge of some of the facts, but not all, a combination of these two methods may be employed. State v. David, 222 N.C. 242, 22 S.E. 2d 633; Stans-bury \u00a7\u00a7 136 and 137. The questions set out above contained facts within the personal knowledge of the witness Edgerton or facts which had been testified to by other witnesses. The trial court erred in sustaining objections to these questions.\nPlaintiffs\u2019 witnesses, Cogdill and Lance, not engineers, were permitted by the court to give their opinion as to the sufficiency of the drainage provided for the fill in question and as to the cause of the flooding and the resulting damage to the Cogdill quarry. Edgerton, an admitted expert in the field of hydraulic engineering and design and head of the hydro-graphic department of the Highway Commission, who was familiar with the design of this highway project, who had been over the grounds foot by foot prior to construction, who described the drainage pattern in detail, and who after the flood went upon the grounds personally and made studies as to the effect of the fill on the flooding of plaintiffs\u2019 quarry, was prevented from expressing his opinion as to the sufficiency of the drainage or as to the cause of the flooding. By so doing the court did not permit \u201cthe witnesses for both parties to testify upon equal terms.\u201d Rubber Co. v. Tire Co., supra. This was error.\nFor the reasons stated, the cases are remanded to the Superior Court of Henderson County for a new G.S. 136-108 hearing.\nError and remanded.", "type": "majority", "author": "MOORE, Justice." } ], "attorneys": [ "Attorney General Robert Morgan, Deputy Attorney General R. Bruce White, Jr., and Assistant Attorney General Andrew McDaniel, for defendant appellant.", "Bennett, Kelly & Long and Van Winkle, Buck, Wall, Starnes & Hyde for plaintiff appellees." ], "corrections": "", "head_matter": "C. M. COGDILL v. NORTH CAROLINA STATE HIGHWAY COMMISSION \u2014 and \u2014 GEORGE G. WESTFELDT, JR. v. NORTH CAROLINA STATE HIGHWAY COMMISSION\nNo. 100\n(Filed 30 July 1971)\n1. Eminent Domain \u00a7 13\u2014 inverse condemnation \u2014 trial without jury \u2014 consideration of damages\nThe trial judge in a nonjury inverse condemnation proceeding against the Highway Commission could consider evidence of damages for the limited purpose of finding that the plaintiffs had made a prima facie showing of substantial and measurable damages, although his finding as to damages would not be competent at the jury trial on the issue of damages. G.S. 136-108.\n2. Appeal and Error \u00a7 24\u2014 competency of evidence \u2014 necessity for objection\nWhere there is no objection to the admission of evidence, the competency of the evidence is not presented.\n3. Evidence \u00a7 25\u2014 inverse condemnation proceeding \u2014 inconsistency in the evidence \u2014 duty of the trial judge\nIn an inverse condemnation proceeding heard by the trial judge without a jury, any inconsistency in the testimony of plaintiffs? witnesses, the witness of the Highway Commission, and the maps introduced in evidence was a matter to be resolved by the trial court in its findings of fact.\n4. Appeal and Error \u00a7 48\u2014 nonjury trial \u2014 admission of incompetent evidence \u2014 presumption\nIn a nonjury trial, in the absence of words or conduct indicating otherwise, the presumption is that the judge disregarded incompetent evidence in making his decision.\n5. Appeal and Error \u00a7 57\u2014 findings of fact \u2014 review\nThe trial court\u2019s findings of fact will not be reversed unless based only on incompetent evidence.\n6. Appeal and Error \u00a7 57\u2014 findings of fact \u2014 review on appeal\nIf the findings of fact are supported by competent evidence, they are binding on the Supreme Court even though there is evidence to the contrary.\n7. Evidence \u00a7 40\u2014 opinion testimony \u2014 lay witnesses \u2014 capacity of drainage culverts to carry off flood waters\nLay witnesses who were familiar with bottomland traversed by several creeks and who had observed the flooding of the bottomland were competent to give an opinion as to whether the drainage culverts installed on a highway project adjacent to the bottomland would be sufficient to carry off the flood waters of the creeks.\n8. Evidence \u00a7 48\u2014 competency of expert witness\nAn expert witness is one better qualified than the jury to draw appropriate inferences from the facts.\n9. Evidence \u00a7 54\u2014 expert witness \u2014 capacity of highway drainage culverts to carry off flood waters\nAn expert witness in the field of hydraulic engineering and design is competent to give an opinion as to the capacity of a highway drainage culvert to carry off the flood waters of creeks traversing the locality, and to give an opinion on the cause of the flooding of a rock quarry that was adjacent to the drainage culvert.\n10.Evidence \u00a7 49\u2014 examination of expert witness \u2014 hearsay evidence\nGenerally, an expert witness cannot base his opinion on hearsay evidence.\nAppeal by defendant from Thorribwrg, S.J., 17 August 1970 Special Session Henderson Superior Court, transferred to this Court for initial appellate review by virtue of the general trans\u00ederral order of 31 July 1970, entered pursuant to G.S. 7A-31 (b) (4).\nThese are two separate inverse condemnation actions\u2014 the Cogdill claim for relief concerns a lessee\u2019s interest and the Westfeldt claim for relief concerns a fee interest in the same property \u2014 consolidated for the purpose of hearing a joint motion of plaintiffs and defendant for a determination of all issues raised by the pleadings, other than the issue of damages, pursuant to G.S. 136-108. The Cogdill action was commenced 7 December 1965. The Westfeldt action was commenced 16 August 1967.\nA 5.2 acre tract in which Westfeldt has a fee interest was leased to Cogdill for a limestone quarry operation and is a part of a 13 acre Westfeldt tract. Prior to 4 October 1964 defendant State Highway Commission constructed a segment of Interstate Highway 26 (1-26) in Henderson County across a portion of the property owned by Atled Corporation which adjoins the Westfeldt property. This section of 1-26 traversed a floodplain made up of Cane Creek, Kimsey Creek, and the French Broad River. Kimsey Creek flowed from the northeast to the southwest into and out of an abandoned quarry pond, thence along the northwestern boundary of the Westfeldt property and passed through a fill for 1-26 by means of a \u201ctriple 7\u2019 x 7\u2019 box culvert.\u201d' Other drainage facilities for 1-26 on the Atled Corporation property included the bridge opening for\nCane Creek, 24\u201d and 36\u201d reinforced concrete pipes, and side ditches joining the main and secondary drainage facilities.\nMaps were introduced with the stipulation that the elevations shown on the maps are correct. One of these maps, Plaintiffs\u2019 Exhibit 8, is attached. This map shows that the floodplains of Cane Creek and Kimsey Creek were approximately 2,050 feet above sea level. (All elevations given herein are with reference to sea level.) The fill for 1-26 constructed through the floodplain area had an elevation of 2,070 feet. The concrete head-wall (top) of the triple box culvert through the fill was 2,058.75 feet. The water elevation of Kimsey Creek at its entrance to the box culvert was 2,050.86 feet. Northeast of the highway fill was an old abandoned quarry filled with water, the water elevation being 2,064.04 feet. The Westfeldt 13 acre tract was between the abandoned quarry and 1-26; 7.8 acres of this tract joined the abandoned quarry and lay between the abandoned quarry and the new quarry leased and operated by Cogdill on the 5.2 acre tract. The 7.8 acre tract apparently was not being used for any purpose at the time in question. A dike with an elevation of 2,067.6 feet kept the water in the old qu\u00e1rry from running into the new quarry. Kimsey Creek ran out of the abandoned quarry and formed the northwestern boundary of the Westfeldt property. A concrete spillway built by plaintiffs along the boundary line prevented the water of Kimsey Creek from flowing into the new quarry. This spillway had an elevation of approximately 2,062 feet. At a point near the upper end of the new quarry, Kimsey Creek had an elevation of 2,059.1 feet.\nPlaintiffs in summary contend and offered evidence tending to show that on 4 and 5 October 1964 a heavy rain \u2014 not unusual for the area \u2014 fell, causing C\u00e1ne Creek to flood and back water northwest toward Kimsey Creek; that the water became so voluminous that the drainage ditches were unable to carry it, and the waters of Cane Creek and Kimsey Creek intermingled near the triple box culvert; that the combination of the waters from the two streams was too much for the culvert and the water dammed up above the culvert to a height of approximately 2,067 feet \u2014 the 1-26 fill acting as a dam. As a result, the water backed up Kimsey Creek and into the old quarry, a distance of approximately 2,350 feet. The pressure from the additional water broke the dike containing the water in the old quarry, and this water then poured into the new quarry leased and operated by Cogdill, damaging the quarry, and reducing the value of the lease and the market value of the fee interest.\nThe only witness offered-by defendant was C. R. Edgerton, the State hydrographic engineer, who was qualified as an expert witness in the field of hydraulic engineering and design. He testified that the project was designed by a consulting engineering firm in New York, and that the plans for the drainage of this particular section were reviewed and approved by him, the engineering staff of the Highway Commission, and the engineers for the Bureau of Public Roads. He further testified that before the contract was let he went over the project foot by foot on the grounds, and that after the flooding complained of in these actions he personally went upon the grounds, directed the gathering of information, and made studies of the flooding to determine what effects, if any, the design of 1-26 had on the adjacent properties. Much of Edgerton\u2019s testimony, on objection by the plaintiffs, was excluded by the court, but he was allowed to answer for the purpose of the record. His admitted testimony, and that which was included for the record, tends to show that the breakage of the dike holding the water in the old quarry and thereby flooding the new quarry was caused by the inability of the concrete spillway along the Westfeldt property to carry the water of Kimsey Creek from the old quarry to the highway fill. His testimony further tends to show that this spillway along the new quarry is at an elevation of 2,062 feet; that the dike at the old quarry is at an elevation of 2,067.6 feet, and any back water would necessarily flow into the new quarry before backing into the old quarry; and that the dike holding the water of the old quarry broke because of the volume of water in Kimsey Creek and not because of any impoundment caused by the fill for 1-26.\nJudge Thornburg found facts substantially as contended by the plaintiffs and concluded as a matter of law that the fill in question constituted a permanent nuisance, resulting in substantial reduction in value of Cogdill\u2019s lease and Westfeldt\u2019s ownership; that this constitutes a \u201ctaking\u201d in the constitutional sense, and that the damages to plaintiffs were proximately caused by the erection and maintenance of the fill with insufficient drainage space and culverting. Judge Thornburg then ordered each action calendared for trial upon the issue of damages. From this order, defendant appealed.\nAttorney General Robert Morgan, Deputy Attorney General R. Bruce White, Jr., and Assistant Attorney General Andrew McDaniel, for defendant appellant.\nBennett, Kelly & Long and Van Winkle, Buck, Wall, Starnes & Hyde for plaintiff appellees." }, "file_name": "0313-01", "first_page_order": 341, "last_page_order": 355 }