WILSON REDEVELOPMENT COMMISSION v. Stewart

164 S.E.2d 495 (1968)

3 N.C. App. 271

WILSON REDEVELOPMENT COMMISSION, Petitioner, v. Best STEWART and Marjorie Fulcher Stewart, Respondents.

No. 687SC432.

Court of Appeals of North Carolina.

December 18, 1968.

Certiorari Denied January 31, 1969.

*496 Lucas, Rand, Rose, Meyer & Jones, by David S. Orcutt, Wilson, for petitioner appellee.

Carr & Gibbons, by L. H. Gibbons, and Farris & Thomas, by Robert A. Farris, Wilson, for respondent appellants.

BRITT, Judge.

The first assignment of error is stated thusly: Did the trial court err in overruling the objection to testimony brought out on cross-examination of respondents' witness regarding sales which petitioner deemed to be comparable to the property condemned without first making a preliminary finding that the sales were, in fact, comparable?

The respondents' witness testified to the value of certain property which he deemed comparable and on which he had relied in appraising the property in question. Thereafter, on cross-examination, the witness was questioned about these parcels and was then asked about the price paid by the witness himself for certain other property. Over respondents' objection, he was required to answer.

The view of our Supreme Court on this question was well expressed in the case of Barnes v. North Carolina State Highway Commission, 250 N.C. 378, 109 S.E.2d 219, as follows: "It would seem that the utmost freedom of cross-examination with reference to sales and sales prices in the vicinity should be accorded the landowner, subject to the right and duty of the presiding judge to exercise his sound discretion in controlling the nature and scope of the cross-examination in the interest of justice and in confining the testimony within the rules of competency, relevancy, and materiality." It follows that the condemnor should be accorded similar freedom. The Barnes case also sets out the prevailing view that sales prices of nearby property are admissible on cross-examination to test the witness' knowledge of values and for the purposes of impeachment. The Barnes decision was followed in Templeton v. State Highway Commission, 254 N.C. 337, 118 S.E.2d 918. See also the case of Bennett v. Winston-Salem Southbound R.R., 170 N.C. 389, 87 S.E. 133, L.R.A.1916D, 1074; Stansbury, N.C. Evidence 2d, § 100, p. 234.

The more desirable manner of framing the question was set out in Carver v. Lykes, 262 N.C. 345, 137 S.E.2d 139, where the court also noted, as is true in the case *497 before us, that the appellant had waived his objection by allowing evidence of similar import to be admitted without objection. The assignment of error is overruled.

Appellants assign as error the admission of expert testimony of the value of the property based upon appraisals made some eighteen months before the taking and an appraisal made three years and four months before the taking.

On these assignments of error, respondents contend that the testimony of petitioner's witnesses Hackney, Chesson and Taylor should have been excluded, because it was on its face too remote in point of time to have any probative value and because there was no evidence before the court to show what relationship, if any, the value of the property at the time of the appraisals in July 1965 and August 1963 had to its value in December 1966, the date of taking.

In State Highway & Public Works Comm. v. Hartley, 218 N.C. 438, 11 S.E.2d 314, in an opinion written by Stacy, C. J., we find the following:

"In determining the fair market value of property taken in condemnation, it is generally regarded as competent to show the value of the property within a reasonable time before and/or after the taking as bearing upon its value at the time of the appropriation. Town of Ayden v. Lancaster, 197 N.C. 556, 150 S.E. 40; DeLaney v. Henderson-Gilmer Co., 192 N.C. 647, 135 S.E. 791; Wyatt v. Seaboard R. R., 156 N.C. 307, 72 S.E. 383; Grant v. Hathaway, 118 Mo.App. 604, 96 S.W. 417; 8 R.C.L. 489. The rule is necessarily one of variableness in the time limits depending upon the nature of the property, its location and surrounding circumstances, and whether the evidence offered fairly points to its value at the time in question. Newsom v. Cothrane, 185 N.C. 161, 116 S.E. 415; Powell v. Seaboard R. R., 178 N.C. 243, 100 S.E. 424; Myers v. City of Charlotte, 146 N.C. 246, 59 S.E. 674; Wade v. Carolina Tel. & Tel. Co., 147 N.C. 219, 60 S.E. 987."

The rule allowing evidence of value at times before or after the taking is analogous to the rule which allows evidence of the purchase price paid for property sometime prior to the date of taking. The admissibility of such evidence and its probative value is not dependent solely on the time elapsed but on the similarity of conditions at the time of the appraisal or sale and at the time of the taking. Redevelopment Commission of Winston-Salem v. Hinkle, 260 N.C. 423, 132 S.E.2d 761. In determining whether evidence of the value at sometime prior to the taking is admissible to show fair market value at the time of the taking, the inquiry is whether under all the circumstances that appraisal fairly points to the value of the property at the time of the taking. Northgate Shopping Center v. State Highway Commission, 265 N.C. 209, 143 S.E.2d 244; Redevelopment Commission of Winston-Salem v. Hinkle, supra.

Not only is the record in the instant case void of evidence of any change in the subject property which would have made evidence of value eighteen monthsor even forty monthsbefore the taking completely invalid and without probative force to aid the jury in determining fair market value at the date of taking, but, to the contrary, the evidence indicated there had been no substantial changes. Witness Hackney testified that he viewed the property practically every month between July 1965 and December 1966 and that there was no substantial change in value. Petitioner's witness George Morris testified that he visited the area of the subject property several times weekly from 1962 until December 1966, on which occasions he viewed the subject property, and that there was no material change in value during that period.

*498 Considering all the evidence, we hold that the challenged testimony was not too remote in point of time, and the assignments of error relating thereto are overruled.

Finally, respondents contend that the charge of the court failed to comply with G.S. § 1-180 in that the judge failed to instruct the jury that they "should give the appraisals either no consideration or substantial consideration, depending upon what conditions they found had influenced the value of the property during the intervening period, if any."

There was no evidence offered by either party tending to show material change in conditions affecting the value of the property during the intervals in question, therefore, it is difficult to conceive of prejudice resulting from this omission. Moreover, it is not error to fail to instruct on a point not presented by the evidence. 7 Strong, N.C. Index 2d, Trials, § 33, p. 331.

The record shows no request for the desired instructions, and though it would not have been error for these instructions to have been given, North Carolina State Highway Commission v. Coggins, 262 N.C. 25, 136 S.E.2d 265, the charge, when considered as a whole, was in compliance with G.S. § 1-180. The judge noted the times when the appraisals were taken and the amount of subsequent contact the witnesses had had with the property. Later, he charged the jury that they were authorized to believe all, none, or part of what any witness said, the jury being the sole judge of the credibility of the testimony. This was mentioned a second time in the charge, in the course of instructing on the burden of proof. There is no reason to believe that the jury was misled or misinformed. The assignment of error relating to the charge is overruled.

No error.

BROCK and PARKER, JJ., concur.