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Duke Power Co. v. Mom 'N' Pops Ham House Inc.

Filed: October 16, 1979.

DUKE POWER COMPANY
v.
MOM 'N' POPS HAM HOUSE, INC.; JOHN W. ERVIN, JR., TRUSTEE FOR NORTHWESTERN BANK; AND NORTHWESTERN BANK



Appeal by the petitioner from Graham, Judge. Judgment entered 22 September 1978 in Superior Court, Catawba County. Heard in the Court of Appeals on 19 September 1979.

Hill, Judge. Judges Vaughn and Erwin concur.

Hill

Three questions are presented for review by this Court as follows:

1. Did the trial court's rulings on the petitioner's motion in limine and the respondents' offer of evidence allow the jury improperly to consider possible specific further uses of the respondents' property in reaching its verdict?

In condemnation proceedings, the determinative question is: In its condition on the day of taking, what was the value of the land for the highest and best use to which it would be put by owners possessed of prudence, wisdom and adequate means? The owner's actual plans or hopes for the future are completely irrelevant. Such aspirations are regarded as too remote and speculative

to merit consideration. State v. Johnson, 282 N.C. 1, 191 S.E.2d 641 (1972); State Highway Commission v. Conrad, 263 N.C. 394, 139 S.E.2d 553 (1965); Wadsworth Land Co. v. Piedmont Traction Co., 162 N.C. 503, 78 S.E. 299 (1913). The respondents in this cause wanted to introduce testimony that they had future plans for the expansion of their office and warehouse building to the north and that northward was the only direction in which they could expand the building, and further, that the imposition of the petitioner's easement had precluded that expansion. Petitioner had filed its motion in limine in an effort to keep this evidence from being put before the jury directly or indirectly. The trial judge was not in error in denying petitioner's motion in limine. Granting of the motion is discretionary with the trial judge. The judge did not abuse his discretion, and as is apparent from the record, no impermissible evidence of future plans was heard by the jury.

2. Did the trial court improperly exclude the value testimony of the petitioner's expert witnesses?

Where only a part of a tract is taken, the measure of damages for said taking shall be the difference between the fair market value of the entire tract immediately prior to said taking and the fair market value of the remainder immediately after said taking . . . .

G.S. 136-112(1).

The judge is required to instruct the jury to use the above standard -- and that standard only -- in computing damages. Board of Transportation v. Jones, 297 N.C. 436, 255 S.E.2d 185 (1979).

However, the real issue is whether expert real estate appraisers must use the before and after formula in determining damages. They do not. Duke Power's easement is situated so that the damage to respondents' land will result from two things. Respondents will suffer loss to the extent of the value of land actually taken. In addition, the easement will isolate the warehouse in the southwest corner of the lot between Southern Railway and Duke Power easements. The northeast corner upon which the smokehouse sits will not be affected.

Petitioner's experts should have been permitted to testify from first-hand knowledge as to ...


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