NORTH ASHEBORO-CENTRAL FALLS SAN. DIST. v. Canoy

114 S.E.2d 577 (1960)

252 N.C. 749

NORTH ASHEBORO-CENTRAL FALLS SANITARY DISTRICT, Petitioner, v. R. L. CANOY and wife, Myrtle Canoy, Defendants.

No. 528.

Supreme Court of North Carolina.

June 10, 1960.

*580 H. Wade Yates, Asheboro, for petitioner appellant.

Ottway Burton, Asheboro, for defendants appellees.

WINBORNE, Chief Justice.

When the North Asheboro-Central Falls Sanitary District, in the exercise of its power of eminent domain, took the easements and rights of way over the lands of defendants hereinabove described, it became obligated by the North Carolina Constitution and by the statute under which it acted to pay to defendants just compensation for the damage done.

In this connection the petition sought and the judgment granted it the easements, rights of way and privilege as hereinabove set forth to construct and maintain in and upon and over and through the easements, as described, in a proper manner and with such apparatus and equipment as shall be necessary, sanitary sewer lines as a part of the sanitary sewer system of the petitioner, together with the perpetual and permanent right at all times to enter upon said easement for the purpose of inspecting said sanitary sewer lines and making the necessary repairs, replacements, additions and alterations thereon, and that except for said purposes, the petitioner shall not interfere with the rights of the respondents, and the respondents shall have the full power and right to use the lands over which said right of way and easements have been condemned and secured and located, for all lawful purposes, so long as such purposes are not inconsistent with the rights to be acquired therein, and do not interfere with the use and maintenance of the rights of way and easements granted and acquired by the petitioner.

Thus it appears by express language that the respondents retained the fee and have a right to use the property so long as such use does not interfere with the proper use by petitioner for the maintenance and operation of its sewer lines. Petitioner does not seek and did not acquire an absolute fee simple. It acquired merely an easement. And the court was under duty to lay down the correct rule to guide the jury as to what was just compensation for the damage done. In the performance of his duty the presiding judge told the jury: "(It is necessary for you to know what the rule is for measuring damages in such a case as this and the court charges you that the rule is that a petitioner such as the one in this case, a sanitary district, takes by condemnation a perpetual easement or right of way entitling it to occupy and use the entire surface of a part of a tract of land or to erect sewer lines, through and under said lands, such as is sought in this case, the landowners are entitled to recover just compensation from said petitioner for the easements taken, and just compensation in such case includes the reasonable market value of the part of the tract covered by the easement and damages, if any, done to the remainder of the tract by the taking of the easements and rights of way)." Petitioner excepts to the foregoing portion in parenthesis. Exception 25.

And continuing in this respect "(the court further charges you that since the condemnor, that is, the petitioner in this case, acquires the complete right to occupy and use the entire surface of the part of the land covered by the perpetual easements and rights of way for all time to the exclusion *581 of the landowner, subject to his right to use it as I read in paragraph 6 of the petition where the petitioner sets forth the rights it desires to acquire, the bare fee then remains in the landowner, that is, Canoys, and for all practical purposes is of no particular value, and the value of the perpetual easements and rights of way acquired by the petitioner is virtually the the same as the value of the land embraced in it; and the court further instructs you that any use which the landowner may make of any part of the land embraced in the perpetual easement is necessarily permissive and limited in character, and what, if anything, that may be worth in diminution of the compensation to which the respondents are entitled, if any, is to be determined by you under the evidence and the law as I give it to you in this case)." Petitioner excepts to the foregoing portion of charge in parenthesis. Exception 26. Compare with opinion in Carolina Power & Light Co. v. Clark, 243 N.C. 577, 91 S.E.2d 569.

In this respect petitioner appellant concedes in its brief that the law as thus charged is correct in the acquisition of certain easements, but that it is not a correct charge in connection with the easements and rights of way sought in this proceeding and by the petitioner in consideration of the express rights described in petition. Petitioner could use the property taken for only a limited purpose, and any other use by it or anyone else would require additional compensation. See Grimes v. Virginia Electric & Power Co., 245 N.C. 583, 96 S.E.2d 713; Carolina Power & Light Co. v. Clark, supra; Hildebrand v. Southern Bell Telegraph Co., 219 N.C. 402, 14 S.E.2d 252; Crisp v. Nantahala Power & Light Co., 201 N.C. 46, 158 S.E. 845; Hodges v. Western Union Telegraph Co., 133 N.C. 225, 45 S.E. 572; and Atlantic Coast Line R. R. v. Bunting, 168 N.C. 579, 84 S.E. 1009.

Indeed, if the Sanitary District should arbitrarily or capriciously interfere with respondents' use of the surface, interference could be enjoined and the damage resulting from such interference would constitute a cause of action.

The landowner is entitled to the right to surface use. He is not required to seek permission for such use from the Sanitary District. To say in effect that such right or use has no value seems to be contrary to law and an expression of opinion prohibited by statute, G.S. § 1-180.

The jury should have been instructed as to the respective rights of the petitioner and respondents. Petitioner should be required to pay the difference in the market value of respondents' property free of the easement and subject to the easement. Such difference is a fair compensation.

For error pointed out there must be a

New trial.