City of Statesville v. Bowles

Annotate this Case

180 S.E.2d 111 (1971)

278 N.C. 497

CITY OF STATESVILLE, a Municipal Corporation, Petitioner, v. Louis G. BOWLES and wife, Eugenia W. Bowles, Howard Holderness and the Jefferson Standard Life Insurance Company, a Corporation, Respondents.

No. 35.

Supreme Court of North Carolina.

April 14, 1971.

*113 Sowers, Avery & Crosswhite, Statesville, for petitioner appellant.

McElwee, Hall & Herring, North Wilkesboro, for respondent appellees.

*114 SHARP, Justice:

Judge Beal's findings of fact support his judgment, and the evidence supports his findings of fact. Thus, unless it appears that the findings were influenced by incompetent evidence, the judgment must be affirmed. Reid v. Johnston, 241 N.C. 201, 85 S.E.2d 114; Gasperson v. Rice, 240 N.C. 660, 83 S.E.2d 665.

Petitioner, contending that the court acted upon incompetent evidence, assigns as error the admission of certain testimony with reference to another possible location of the sewer line over respondents' property. Respondents elicited this evidence in their cross-examination of E. B. Stafford, the engineer who designed the City sewer system. On direct examination, without objection, Stafford testified that in locating a sewer line professional ethics required an engineer to consider the interest of all property owners affected by its location; that after consultation with Mr. Bowles and the others, he had put the sewer "on what (he) felt would be the most equitable location for all parties concerned."

On cross-examination, counsel for respondents sought to extract from Mr. Stafford an admission that he ran the sewer line through the middle of the 21-acre tract rather than "through the lower part of Mr. Bowles' property" in order to spare the City the expense of a lift station, which the latter location would have required. Counsel showed Stafford a map (not made a part of the case on appeal) and, over objection, questioned about a dotted line thereon. Stafford said it showed "an approximate possible lower elevation location." However he also testified in substance as follows: He had never discussed with Mr. Bowles any possible lower elevation location of the sewer. Mr. Bowles' concern was that the entire sewer line be put underground. Stafford chose the location in suit because (1) it was good engineering practice to construct a sewer line so that the pull of gravity would deliver the sewage to the treatment plant; (2) the chosen route "was the logical location for all the property that the line was to serve"; and (3) it was the "economical long range plan" considering any future expansion by the City.

Petitioner contends that the court having heard evidence of another possible route "such evidence was taken into consideration by it in arriving at its verdict." Actually the court heard no testimony that the City had ever considered an alternative route. It was error, however, for the court to have permitted the cross-examination with reference to another possible route. In the first place "the choice of a route in a condemnation proceeding is primarily within the political discretion of the grantee of the power and will not be reviewed on the ground that another route may have been more appropriately chosen unless it appears that there has been an abuse of the discretion." Charlotte v. Heath, 226 N.C. 750, 754, 40 S.E.2d 600, 603. That there was no abuse of discretion, and that the City had acted in good faith in selecting the sewer route, had been adjudicated approximately three years earlier. In the second place, the location of the easement was a fait accompli, and the parties had stipulated that the only issue before Judge Beal was what damages, if any, had resulted to respondents' land from the sewer line as laid.

Petitioner's representation of the virtues of the chosen route and respondents' insinuations that another and better route was rejected at respondents' expense were diversionary tactics which have obviously served no useful purpose for either party. However, petitioner's assumption that prejudice necessarily resulted from the challenged evidence is not borne out by the record. It contains no suggestion that Judge Beal penalized the City for failing to put the sewer at some "possible lower elevation location." The presumption is to the contrary. In a nonjury trial, in the absence of words or conduct indicating otherwise, the presumption is that *115 the judge disregarded incompetent evidence in making his decision. Anderson v. Allstate Insurance Co., 266 N.C. 309, 145 S.E.2d 845; Chappell v. Winslow, 258 N.C. 617, 129 S.E.2d 101; Reverie Lingerie, Inc. v. McCain, 258 N.C. 353, 128 S.E.2d 835; Bizzell v. Bizzell, 247 N.C. 590, 101 S.E.2d 668; Stansbury, N.C. Evidence 2d ยง 4a (1963).

Since 29 August 1966, the date the easement was taken, the only real question in this case has been what damages, if any, respondents were entitled to recover. Judge Beal, with the consent of the parties, has answered that question in a trial in which we find no prejudicial error.

No error.