{ "id": 8567401, "name": "NORTH CAROLINA STATE HIGHWAY COMMISSION v. J. R. HELDERMAN and wife, WILLIE H. HELDERMAN", "name_abbreviation": "North Carolina State Highway Commission v. Helderman", "decision_date": "1974-08-30", "docket_number": "No. 33", "first_page": "645", "last_page": "657", "citations": [ { "type": "official", "cite": "285 N.C. 645" } ], "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": "201 S.E. 2d 568", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "20 N.C. App. 394", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552819 ], "opinion_index": -1, "case_paths": [ "/nc-app/20/0394-01" ] }, { "cite": "52 S.E. 954", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1905, "pin_cites": [ { "page": "960" } ], "opinion_index": 0 }, { "cite": "140 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651979 ], "year": 1905, "pin_cites": [ { "page": "348" } ], "opinion_index": 0, "case_paths": [ "/nc/140/0333-01" ] }, { "cite": "140 S.E. 2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "413" } ], "opinion_index": 0 }, { "cite": "263 N.C. 790", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573199 ], "year": 1965, "pin_cites": [ { "page": "792" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0790-01" ] }, { "cite": "19 Cal. Rep. 473", "category": "reporters:state", "reporter": "Cal.", "year": 1962, "opinion_index": 0 }, { "cite": "57 Cal. 2d 346", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 4375122 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/cal-2d/57/0346-01" ] }, { "cite": "15 Cal. Rep. 19", "category": "reporters:state", "reporter": "Cal.", "year": 1961, "pin_cites": [ { "page": "25" } ], "opinion_index": 0 }, { "cite": "139 S.E. 2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "557" } ], "opinion_index": 0 }, { "cite": "263 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570177 ], "year": 1964, "pin_cites": [ { "page": "399" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0394-01" ] }, { "cite": "7 A.L.R. 2d 781", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1948, "opinion_index": 0 }, { "cite": "7 A.L.R. 2d 773", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1948, "opinion_index": 0 }, { "cite": "250 Ala. 651", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 5211132 ], "weight": 2, "year": 1948, "opinion_index": 0, "case_paths": [ "/ala/250/0651-01" ] }, { "cite": "225 Ore. 62", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 5780045 ], "weight": 2, "year": 1960, "opinion_index": 0, "case_paths": [ "/or/225/0062-01" ] }, { "cite": "177 N.E. 2d 655", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "242 Ind. 206", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1772510 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ind/242/0206-01" ] }, { "cite": "97 S.E. 748", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1918, "pin_cites": [ { "page": "749" } ], "opinion_index": 0 }, { "cite": "177 N.C. 10", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653514 ], "year": 1918, "pin_cites": [ { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/nc/177/0010-01" ] }, { "cite": "147 S.E. 2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "267 N.C. 25", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558224 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/267/0025-01" ] }, { "cite": "137 S.E. 2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "262 N.C. 345", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567557 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/262/0345-01" ] }, { "cite": "136 S.E. 2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "262 N.C. 25", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565180 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/262/0025-01" ] }, { "cite": "136 S.E. 2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "261 N.C. 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575562 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/261/0760-01" ] }, { "cite": "109 S.E. 2d 219", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "250 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623661 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/nc/250/0378-01" ] }, { "cite": "159 S.E. 2d 861", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 368", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575354 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0368-01" ] }, { "cite": "191 S.E. 2d 641", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "655" } ], "opinion_index": 0 }, { "cite": "282 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562551 ], "year": 1972, "pin_cites": [ { "page": "21" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0001-01" ] }, { "cite": "50 S.E. 2d 901", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1948, "pin_cites": [ { "page": "903" } ], "opinion_index": 0 }, { "cite": "229 N.C. 654", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12167447 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/nc/229/0654-01" ] }, { "cite": "373 S.W. 720", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1963, "opinion_index": 0 }, { "cite": "178 S.E. 575", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1935, "pin_cites": [ { "page": "576" } ], "opinion_index": 0 }, { "cite": "207 N.C. 751", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628336 ], "year": 1935, "pin_cites": [ { "page": "753" } ], "opinion_index": 0, "case_paths": [ "/nc/207/0751-01" ] } ], "analysis": { "cardinality": 1189, "char_count": 29823, "ocr_confidence": 0.599, "pagerank": { "raw": 4.947371679573331e-07, "percentile": 0.9348548892232713 }, "sha256": "346ad1ae6ae355b4144b44b7adc095c299a96266ee9ace69078fc535ee19c1c6", "simhash": "1:05aff41337155d04", "word_count": 5014 }, "last_updated": "2023-07-14T22:42:08.335271+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "NORTH CAROLINA STATE HIGHWAY COMMISSION v. J. R. HELDERMAN and wife, WILLIE H. HELDERMAN" ], "opinions": [ { "text": "SHARP, Justice.\nThe position of defendants (appellants here, appellees below) is that plaintiff\u2019s assignments of error neither singly nor collectively disclose any error sufficiently prejudicial to justify the trial de novo ordered by the Court of Appeals.\nOn this appeal we do not consider any assignment which the Court of Appeals decided adversely to plaintiff, that is, overruled. We examine first plaintiff\u2019s assignment No. 3, which the Court of Appeals sustained, that the trial court erred in permitting one of the owners, defendant J. R. Helderman, to express an opinion as to the value of his property before and after the taking without any showing that he was qualified to give such an opinion. This assignment raises the question whether the owner of property is ipso facto presumed qualified to give an opinion as to its market value.\nUnless it affirmatively appears that the owner does not know the market value of his property, it is generally held that he is competent to testify as to its value even though his knowledge on the subject would not qualify him as a witness were he not the owner. \u201cHe is deemed to have sufficient knowledge of the price paid, the rents or other income received, and the possibilities of the land for use, to have a reasonably good idea of what it is worth. The weight of his testimony is for the jury, and it is generally understood that the opinion of the owner is so far affected by bias that it amounts to little more than a definite statement of the maximum figure of his contention. ...\u201d 5 Nichols, Law of Eminent Domain, \u00a7 18.4(2) (3rd ed., 1969), wherein the decisions pro and con are collected. Accord, 32 C.J.S., Evidence \u00a7 546 (116) (1964) ; 32 C.J.S., Evidence \u00a7 545(d)(3) (pp. 305-306) (1942); Jahr, Law of Eminent Domain \u00a7 133 (1953) ; 3 Wigmore on Evidence, \u00a7\u00a7 714, 716 (Chadbourn rev. 1970). See Light Co. v. Rogers, 207 N.C. 751, 753, 178 S.E. 575, 576 (1935). For an exposition of the minority rule that the owner, just as any other witness, must establish his qualifications before expressing his opinion of market value, see Commonwealth, Department of Highways v. Fister, 373 S.W. 720 (Ky., 1963).\nWhen his attorney asked defendant Helderman if he was familiar with the fair market value of real estate in the vicinity of his property and if he had an opinion satisfactory to himself as to the fair market value of his property on and after 7 August 1972, he answered both questions, \u201cYes, sir. I think so.\u201d The market value of land is usually a matter of opinion, and we interpret defendant\u2019s answers as a positive assertion that he knew land values in the vicinity of his property and had an informed opinion, \u201csatisfactory to himself,\u201d as to the value of his property on the pertinent date. In Harrelson v. Gooden, 229 N.C. 654, 50 S.E. 2d 901 (1948), an owner\u2019s similar assertion was held sufficient to establish prima facie his qualifications to testify as to value. The Court said, \u201cThis evidence was not incompetent. Its probative value, subject to being tested on cross-examination, was for the jury.\u201d Id. at 657, 50 S.E. 2d at 903. (See 32 C.J.S., Evidence \u00a7 546 (115), n. 65 at p. 432 (1964), for comment on Harrelson v. Gooden, supra.)\nIn our view, Helderman was entitled to testify to the value of his property. However, the short answer to plaintiff\u2019s contention that it was error to permit him to do so is that counsel did not object to the questions which elicited his estimates of the value of the property before and after the taking. We hold that plaintiff\u2019s assignment of error should have been overruled.\nThe assignment of error No. 5 which plaintiff stresses most forcibly is directed to Judge McLean\u2019s refusal to grant its motion for a mistrial after the following incident, which has been more fully described in the preliminary statement of facts. After the court had ruled that the purchase price paid in asserted \u201ccomparable sales\u201d considered by the realtors in valuing defendants\u2019 land would not be admitted in evidence, defendants\u2019 attorney asked the witness Laughridge what one such \u201ccomparable\u201d, one-acre tract (the Lender lot) \u201csold for.\u201d Notwithstanding the court sustained plaintiff\u2019s objection, the witness answered, \u201c$45,000.\u201d Both the question and answer set at naught the court\u2019s ruling. Right or wrong, the ruling should have been respected by both attorney and witness. At that time no witness except the owner had given his opinion as to the value of the land, and, at that stage of the trial, Judge McLean would have been within bounds had he allowed the motion for a mistrial. Instead, however, he allowed plaintiff\u2019s motion to strike and instructed the jurors that they would \u201cnot consider that statement.\u201d\nWe are unable to determine from the record whether the court correctly ruled that the sales price of the Lender land, or that of the other tracts which defendants\u2019 witnesses considered comparable in arriving at their valuation of defendants\u2019 property, was inadmissible evidence. The question of admissibility was not determined in accordance with the decisions of this Court. If the sales were in fact comparable, the price was admissible ; otherwise, not. If the properties or sales were not comparable the court erred in allowing the witnesses to describe the land sold to the jury, to state that they deemed the sales comparable and had considered the sales prices in determining the values they had placed upon defendants\u2019 property. In any event, the ruling of the court, which permitted the witnesses to describe the sales as comparable while excluding the sales price, was inconsistent. However, neither party excepted to the ruling.\nIn this State the rule is well settled \u201cthat the price paid at voluntary sales of land, similar in nature, location, and condition to the condemnee\u2019s land, is admissible as independent evidence of the value of the land taken if the prior sale was not too remote in time. Whether two properties are sufficiently similar to admit evidence of the purchase price of one as a guide to the value of the other is a question to be determined by the trial judge in the exercise of a sound discretion guided by law.\u201d State v. Johnson, 282 N.C. 1, 21, 191 S.E. 2d 641, 655 (1972). See Redevelopment Comm. v. Panel Co., 273 N.C. 368, 159 S.E. 2d 861 (1968). The approved practice is for the judge to conduct a voir dire, to hear testimony in the absence of the jury as a basis for determining the admissibility of such evidence. Barnes v. Highway Commission, 250 N.C. 378, 109 S.E. 2d 219 (1959) ; Highway Commission v. Pearce, 261 N.C. 760, 136 S.E. 2d 71 (1964) ; Highway Commission v. Coggins, 262 N.C. 25, 136 S.E. 2d 265 (1964) ; Carver v. Lykes, 262 N.C. 345, 137 S.E. 2d 139 (1964).\nAfter the denial of plaintiff\u2019s motion for a mistrial defendants\u2019 witnesses testified without objection as to the valuations which they had placed upon defendants\u2019 land, and plaintiff\u2019s witnesses explained to the jury why, in their opinion, the asserted comparable sales were not, in fact, comparable. In their turn, without the judge having conducted a voir dire, plaintiff\u2019s witnesses likewise described lands which they asserted were comparable to defendants\u2019 and testified that they had based their valuations of defendants\u2019 property upon the sales price of these tracts.\nUnder all the circumstances we cannot say that the court\u2019s failure to allow the motion for a mistrial constituted prejudicial error. Where the judge sustains a motion to strike an answer of a witness and immediately cautions the jury not to consider it, it will be assumed that the jury followed the instruction and no prejudice resulted. Apel v. Coach Co., 267 N.C. 25, 147 S.E. 2d 566 (1966) ; 7 Strong\u2019s North Carolina Index 2d, Trial \u00a7 16 (1968). Assignment of error No. 5 is not sustained.\nPlaintiff\u2019s assignment No. 6 is that the trial court erred \u201cin allowing defendants\u2019 witness Laughridge to testify that in forming his opinion of value he investigated the asking price which owners of similar property in that area were demanding.\u201d (Emphasis added.)\nAs this Court said in Highway Commission v. Coggins, supra at 31, 136 S.E. 2d at 269, \u201cIt is not the offering of property at a given price that furnishes evidence of market value; it is the actual sale by \u2018a seller willing but not obliged to sell, to a buyer willing but not obligated to buy.\u2019 An owner may and frequently does place a higher price on his property than it will bring in the market. It is not until a voluntary buyer is willing to take the property at the stated price that the transaction becomes an indication of market value.\u201d See Canton v. Harris, 177 N.C. 10, 12, 97 S.E. 748, 749 (1918). A mere offer to buy or sell property is incompetent to prove its market value. The figure named is only the opinion of one who is not bound by his statement and it is to unreliable to be accepted as a correct test of value. State v. Lincoln Memory Gardens, Inc., 242 Ind. 206, 177 N.E. 2d 655 (1961) ; State v. Morehouse Holding Company, 225 Ore. 62, 357 P. 2d 266 (1960) ; Thornton v. Birmingham, 250 Ala. 651, 35 So. 2d 545, 7 A.L.R. 2d 773 (1948). See Annot., 7 A.L.R. 2d 781 (1948) ; McCormick on Evidence, \u00a7 166 (1954) ; 1 Orgel, Valuation under Eminent Domain \u00a7 148 (1953).\nThe rule is firmly established that mere offers, whether made by the owner of comparable properties or to him, are inadmissible. \u201cThe objections to the reception of evidence of offers to buy the identical land which is taken are multiplied ten fold in the case of other land in the neighborhood, and if offers for neighborhing land were competent, the trial of a land damage case would degenerate into a confused and endless wrangle in which collateral issues and what is, in substance, hearsay evidence would play the most prominent part.\u201d 5 Nichols, supra, \u00a7 21.4(3) (1969). However, an offer by the owner, made at or about the time of the taking, to sell his land for a lesser price than he now contends it is worth, is competent to contradict his present contention. Id. \u00a7 21.4(2). See Jahar, supra, \u00a7 145 (1953).\nIn his testimony Laughridge did not state the asking price of any of the \u201ccomparable\u201d properties in the vicinity, and he did not base his opinion solely on them or upon any other one factor. His statement was that, among other things, he investigated the asking prices and then considered everything he knew in arriving at his estimates of value. The prejudice here, if any, would not have come from his statement that the asking prices were a part of the general information upon which he based his opinion. The question is whether the fact that these prices were a part of his general knowledge and he did not exclude them from his considerations required the rejection of his opinion. The answer is No.\nAlthough the witness should consider only proper elements of value, unless he \u201chas based his opinion in a material degree upon elements which cannot legally be considered, without separating such elements from those which may legally be considered, without separating such elements from those which may legally be considered, such opinion is not incompetent.\u201d 5 Nichols, supra, \u00a7 18.42 (1) (1969). The element complained of here affects the weight rather than the competency of the evidence. In Highway Commission v. Conrad, 263 N.C. 394, 399, 139 S.E. 2d 553, 557 (1964), this Court quoted with approval the following statement from People v. Gangi Corporation, 15 Cal. Rep. 19, 25 (1961), rev\u2019d on different grounds sub nom. People v. Donovan, 57 Cal. 2d 346, 19 Cal. Rep. 473 (1962) : \u201c \u2018An integral part of an expert\u2019s work is to obtain all possible information, data, detail and material which will aid him in arriving at an opinion. Much of the source material will be in and of itself inadmissible evidence but this fact does not preclude him from using it in arriving at an opinion. All of the factors he has gained are weighed and given the sanction of his experience in his expressing an opinion.\u2019 \u201d This statement appears to describe the manner in which Mr. Laughridge arrived at the opinions he expressed. It was not error for the court to permit him to detail the facts upon which he based his opinions. Highway Commission v. Conrad, supra. However, we again note that his opinions went into evidence without objection from plaintiff. We find no merit in assignment No. 6.\nFinally we consider assignment No. 16, which challenges the following portion of Judge McLean\u2019s charge: \u201cAs the court has heretofore instructed, Members of the Jury, the measure of damages is the difference between the fair market value of the property immediately before the taking and the fair market value of the remainder of the tract after the taking, which shall include the value of the property taken plus damages to the adjoining property.\u201d (Italics ours.) Plaintiff\u2019s exception relates to the use of the italicized word \u201cadjoining-.\u201d What the judge intended to say, of course, was \u201cremaining\u201d property. He had previously instructed that the measure of damages for the taking was \u201cthe difference between fair market value of the entire tract immediately prior to said taking and the fair market value of the remainder immediately after said taking.\u201d (Italics ours.)\nPlaintiff contends that \u201cdamages to the adjoining property have no bearing upon damages to the subject property and do not enter into the case.\u201d We consider this contention so obviously true that it is inconceivable to us the jury could have thought the judge was referring to property belonging to others which adjoined defendants\u2019 original 2.41 acres. On the contrary, the jurors must have understood that his Honor meant defendants\u2019 remaining property which then adjoined the .22 acres taken. Our opinion is bolstered by the fact that defendants owned no other property in the area.\nAfter having examined all of plaintiff\u2019s assignments, it is our decision that none disclose error in law sufficiently prejudicial to require a new trial.\nPlaintiff\u2019s argument on its assignment that the judge erred in refusing to set aside the verdict because it was an excessive award is no doubt the same argument its counsel directed to the jury before verdict and to the judge thereafter. The trial judge\u2019s refusal to set aside a verdict for excessiveness \u201cwill not be disturbed on appeal unless it is obvious that he abused his discretion,\u201d and no such abuse of discretion appears in this case. Right v. Seymour, 263 N.C. 790, 792, 140 S.E. 2d 410, 413 (1965) ; 7 Strong\u2019s North Carolina Index 2d, Trial, \u00a7 52 (1968). Perhaps a comment appearing in Brown v. Power Co., 140 N.C. 333, 348, 52 S.E. 954, 960 (1905) is pertinent here: \u201cAs long as witnesses differ so widely in their opinion as to values, and as long as litigants measure value so entirely by the standard of self-interest, we cannot hope for verdicts that shall be satisfactory to both parties. The utmost to which we can hope to attain is to sometimes reach a verdict that is unsatisfactory to both parties.\u201d\nThe decision of the Court of Appeals is\nReversed.", "type": "majority", "author": "SHARP, Justice." } ], "attorneys": [ "Attorney General Morgan; Deputy Attorney General White; Assistant Attorney General Hamlin for plaintiff appellee.", "Redden, Redden <& Redden for defendant appellants." ], "corrections": "", "head_matter": "NORTH CAROLINA STATE HIGHWAY COMMISSION v. J. R. HELDERMAN and wife, WILLIE H. HELDERMAN\nNo. 33\n(Filed 30 August 1974)\n1. Eminent Domain \u00a7 6\u2014 evidence of value \u2014 testimony by owner\nUnless it affirmatively appears that the owner does not know the market value of his property, it is generally held that he is competent to testify as to its value even though his knowledge on the subject would not qualify him as a witness were he not the owner.\n2. Eminent Domain \u00a7 6\u2014 evidence of value \u2014 opinion of owner\nWhere defendant\u2019s attorney in a land condemnation proceeding asked defendant if he was familiar with the fair market value of real estate in the vicinity of his property and if he had an opinion satisfactory to himself as to the fair market value of his property on and after the date of the taking, defendant\u2019s answer, \u201cYes, sir, I think so,\u201d to both questions was a positive assertion that he knew land value in the vicinity of his property and had an informed opinion satisfactory to himself as to the value of the property on the pertinent date.\n3. Eminent Domain \u00a7 6; Trial \u00a7 16\u2014 evidence of value \u2014 comparable tracts \u2014'testimony stricken\nTrial court\u2019s failure to allow plaintiff\u2019s motion for mistrial in a land condemnation proceeding did not constitute prejudicial error where the court ruled that the purchase price paid in asserted comparable sales considered by realtors in valuing defendants\u2019 land would not be admitted in evidence, defendants\u2019 attorney asked a witness what one such comparable tract sold for, the court sustained plaintiff\u2019s objection but the witness answered anyway, and the trial court allowed plaintiff\u2019s motion to strike and instructed the jurors that they would not consider the witness\u2019s statement.\n4. Eminent Domain \u00a7 6\u2014 evidence of value \u2014 offers inadmissible\nMere offers, whether made by the owner of comparable properties or to him, are inadmissible to establish value in a land condemnation proceeding; however, an offer by the owner, made at or about the time of the taking, to sell his land for a lesser price than he now contends it is worth, is competent to contradict his present contention.\n5. Eminent Domain \u00a7 6\u2014 evidence of value \u2014 opinion based on prices of comparable tracts \u2014 admissibility\nWhere a witness in a land condemnation proceeding stated that, among other things, he investigated asking prices of comparable properties in the vicinity of defendants\u2019 property and then considered everything he knew in arriving at his estimates of value, his opinion was not inadmissible by reason of the fact that the comparable prices were part of his general knowledge and he did not exclude them from his considerations.\n6. Eminent Domain \u00a7 6\u2014 evidence of value \u2014 elements which may be considered\nAlthough a witness should consider only proper elements of value, unless he has based his opinion in a material degree upon elements which cannot legally be considered, without separating such elements from those which may legally be considered, such opinion is not incompetent.\n7. Eminent Domain \u00a7 7\u2014 jury instructions \u2014 no prejudicial error\nPlaintiff was not prejudiced by the trial court\u2019s error in instructing the jury with respect to damages to property adjoining that of defendants where it was obvious that the court meant property remaining in defendants\u2019 tract.\n8. Trial \u00a7 52\u2014 refusal to set aside verdict for excessive award \u2014 no abuse of discretion\nThe trial court\u2019s refusal to set aside the jury verdict in a land condemnation proceeding is not disturbed on appeal where there was no showing that the court abused its discretion.\nAppeal by defendants under G.S. 7A-30(2) from the decision of the Court of Appeals (20 N.C. App. 394, 201 S.E. 2d 568) vacating the judgment of McLean, J., for errors in the trial at the March 1973 Session of Henderson.\nThis proceeding was instituted by the State Highway Commission (now the Board of Transportation) on 7 August 1972 to condemn a portion of land belonging to defendants for its Project 8.1834101 to widen and relocate a portion of U. S. Highway No. 64 in Henderson County. See G.S. 136-18(16) (1964), N. C. Session Laws, ch. 507, sec. 5 (1973), G.S. 136-18(16) (1974). Simultaneously plaintiff filed a declaration of taking and deposited with the Clerk of the Superior Court $3,100 as its estimate of just compensation for the taking. The tract affected, trapezoidal in shape, contains 2.41 acres. Of it plaintiff is taking .22 of an acre. The land is located about one-half mile north of Hendersonville on the west side of U. S. 64, a heavily traveled highway and one the main thoroughfares from Hendersonville to Interstate Highway No. 26.\nAt the time of the taking, on the north the 2.41 acres fronted 228 feet on Linda Vista Drive, a State-maintained, 30-foot, graveled street. On the east it fronted 381.5 feet on No. 64, a two-lane, paved thoroughfare (now denominated \u201cold U. S. 64\u201d). From No. 64 the southern boundary ran northwesterly 428 feet to a corner from which the western boundary coursed northeasterly 321.7 feet to Linda Vista Drive. (These distances embrace all previously existing rights-of-way on the tract.) The property is generally level, vacant land, covered with brambles.\nThe .22 acre condemned extends from the southern boundary of the tract northeasterly along the western right-of-way line of old U. S. 64 to Linda Vista Drive; thence northwesterly with the right-of-way of Linda Vista 77.87 feet to a point. From there the line runs southerly, on three different calls, 387.78 feet to the tract\u2019s southern line; thence with that line 13.94 feet to old U. S. 64.\nControl of access along the entire western line of the .22 acre taken was also condemned. A steel-wire fence, 4-5 feet high, runs the length of this line. Thus, defendants\u2019 remaining land, 2.19 acres, now has no direct access to No. 64. Linda Vista Drive, on which defendants\u2019 frontage is now 155 feet, provides its only access. After driving 70 feet from U. S. 64 on Linda Vist\u00e1 \u201cyou can turn left into the property and come back out the same way. You can drive north down the four-lane highway and from 1-26 and turn from either direction onto Linda Vista Drive and get onto the property.\u201d\nNow, after the date of taking, a portion of new U. S. 64, a four-lane highway, \u201cgets into appproximately 1/3 of the northeast corner of the subject property.\u201d Here it incorporates old U. S. 64 for an undisclosed distance. It then diverges to continue a strighter course south, while old U. S. 64 continues \u201cin front of the subject property\u201d as a one-way street south into Hendersonville.\nPrior to the trial, by a consent order, all issues were eliminated except the amount which defendants are entitled to recover as just compensation for the appropriation on 7 August 1972 of a portion of their property for highway purposes.\nAt the opening of court on Monday, 12 March 1973, Mr. James B. Richmond, a State Highway Commission attorney from Raleigh, appeared for plaintiff and Mr. Monroe Redden of Hendersonville, for defendants. When it developed that this case would be the only jury trial during the week and that a nonjury case would precede it, Judge McLean suggested to counsel that a jury be selected, empaneled, and then excused until Wednesday morning. Both attorneys agreed to this procedure, and a jury, including two alternates, was duly chosen and empaneled. After they had received the instructions usually given to jurors before a recess, the jurors were excused. When the case was called for trial on Wednesday morning Mr. Richmond was not present. Plaintiff was then represented by Messrs. Guy A. Hamlin and G. Edison Hill, attorneys from Asheville. They moved that the jury which had been empaneled on Monday be discharged and that another jury be selected by the attorneys who would try the case. Judge McLean denied this motion, and the Court of Appeals sustained his ruling.\nAt the trial defendant J. R. Helderman and Messrs. B. H. Laughridge, Jr., James M. Edney, Sr., and Grayson Willeford, three realtors doing business in Henderson County, testified for defendants. One local realtor, Mr. John N. Gould, and a salaried appraiser for the State Highway Commission, Mr. Russell Carter, Jr., testified for plaintiff.\nThe witnesses for both plaintiff and defendants agreed that the highest and best use for the 2.41-acre tract prior to the taking was for business and commercial purposes. Defendants\u2019 witnesses specified \u201chighway business,\u201d service station, motel, restaurant, drive-in bank, \u201cthat sort of thing.\u201d Plaintiff\u2019s witnesses testified that the property is located in \u201ca developing business and commercial area just beyond the city limits of Hendersonville\u201d and that \u201cit definitely had commercial potential.\u201d\nDefendant Helderman\u2019s testimony tended to show that he paid between $22,000 and $23,000 for the land 7-8 years ago; that land in the area had steadily increased in value since then; that he knew the market value of his property on 7 August 1972 and, in his opinion, it was worth $40,000 per acre prior to the taking and only $10,000 per acre thereafter (a difference of $67,900). Plaintiff did not object to defendants\u2019 testimony as to value. Mr. Laughridge, basing his appraisal on four sales, which he deemed to be \u201ccomparable sales in the vicinity,\u201d his investigation of \u201casking prices\u201d for similar property, and \u201call that he had learned\u201d with reference to property in the area, valued defendants\u2019 property before the taking at $40,000 an acre. Without objection he testified that, in his opinion, the value of the property was $96,400. before and $29,500 after the taking, a difference of $66,500. Mr. Edney, on the basis of three sales in the vicinity which he \u201cfelt to be comparable,\u201d two of which had been cited by Laughridge, also appraised defendants\u2019 property at $40,000 per acre on 7 August 1972. In his opinion defendants had suffered damages in the amount of $66,630 by reason of the taking. Mr. Willeford testified that he considered defendants\u2019 damage to be $66,835. Plaintiffs made no objection to any part of the testimony of either Edney or Willeford.\nAt the beginning of Mr. Laughridge\u2019s testimony he stated that a sale of comparable property in the vicinity was made on 15 February 1973 by Goodman to Dana Associates. When plaintiff objected on the ground that this sale was made \u201cafter the date of taking,\u201d the court excused the jury. In its absence Laughridge testified that property values in the vicinity were substantially the same in August 1972 and February 1973; that the \u201ccomparable property\u201d consisted of 1.33 acres fronting 280 feet on the east side of the four-lane \u201cnew\u201d U. S. 64, directly across from the subject property; and that Dana paid $65,000 for the land. Laughridge did not know the date on which the four-lane highway was constructed.\nAt the conclusion of the voir dire on this piece of property Judge McLean made the following ruling: \u201cI will sustain the objection as to the price. I will let him describe the property which he deems comparable. He can state whether he examined this piece of property and whether, in his opinion, it is a comparable price.\u201d The jury returned and, without obection, Laugh-ridge testified in accordance with that ruling. He also described an acre of land, adjacent to the Goodman property, which Lender sold to Wright on 16 August 1971. Despite the previous ruling of the court, counsel for defendants asked Laughridge what the one acre sold for. Although plaintiff\u2019s objection was sustained the witness answered, $45,000, ignoring the court\u2019s ruling. Plaintiff\u2019s motion to strike was allowed and the court instructed the jury not to consider the answer. Immediately thereafter counsel asked the witness, \u201cYou did investigate the price and determine for your own satisfiction what it brought?\u201d The witness answered, \u201cYes\u201d, and plaintiffs moved for a mistrial. Their motion was denied.\nLaughridge next testified that he investigated the sale of five acres immediately behind the Goodman property which Thompson made to Dana on 15 February 1973 and also a sale of eight-tenths of an acre which Hyder and Henderson made to Humble Oil Company on 28 April 1966.\nPlaintiff\u2019s witness Carter valued defendants\u2019 property at $29,800 prior to the taking and $13,800 afterwards, \u201cfor a difference of $15,800.\u201d (sic). He testified that in the course of making his appraisal he investigated more than 100 sales in and around Hendersonville, beginning back in 1967. He also made an economic study of the area. In arriving at his evaluation of defendants\u2019 property, however, he considered only three specified sales, which he deemed \u201ccomparable to the subject property.\u201d These sales were made between 18 June 1971 and 7 August 1972. In his deliberations he adjusted these three sales \u201cfor time which was 8-10 percent upwards, a year.\u201d\nAlthough he was familiar with the sales from Goodman to Dana Associates, Lender to Wright, and Thompson to Dana Associates, \u201call being on the east side of the four-lane highway,\u201d Carter did not consider them in arriving at the values he placed upon defendants\u2019 property. He testified that, in his opinion, these were not comparable sales because (1) they occurred after the date of the taking (the majority, after the project was completed), and the new four-lane connector would inflate values; and (2) \u201cthey were sales which were combined for plot-tage.\u201d\nSeveral times during his testimony the court denied Carter\u2019s request that he be allowed to explain his answer during Mr. Redden\u2019s cross-examination. Plaintiff excepted to these rulings, but the explanations nowhere appear in the record.\nMr. Gould gave defendants\u2019 property a valuation of $26,280 before the taking and $13,140 afterwards, a difference of $13,140. Like Mr. Carter he did not consider the sales on which defendants\u2019 witnesses based their appraisals. Despite a 50 % loss in value it was Gould\u2019s opinion that defendants\u2019 remaining 2.19 acres could be used for a number of industrial or commercial enterprises.\nThe jury awarded defendants $47,500 \u201cas just compensation . . . for the appropriation of a portion of their property for highway purposes on the 7th day of August, 1972.\u201d From the judgment entered upon the verdict plaintiff appealed. The Court of Appeals ordered a new trial on the ground that \u201cthe cumulative effect\u201d of numerous errors committed by the trial judge, any one of which might not have been sufficiently prejudicial to warrant a trial de novo, had deprived plaintiff of a fair trial. One member of the panel having dissented, defendants appealed to this Court as a matter of right.\nAttorney General Morgan; Deputy Attorney General White; Assistant Attorney General Hamlin for plaintiff appellee.\nRedden, Redden <& Redden for defendant appellants." }, "file_name": "0645-01", "first_page_order": 677, "last_page_order": 689 }