State v. Johnson

191 S.E.2d 641 (1972)

282 N.C. 1

STATE of North Carolina v. James E. JOHNSON, Jr., et al.

No. 55.

Supreme Court of North Carolina.

October 11, 1972.

*650 Atty. Gen. Robert Morgan, Asst. Atty. Gen., T. Buie Costen, and Staff Atty. Ernest L. Evans, Raleigh, for the State.

Marshall, Williams, Gorham & Brawley, by Alan A. Marshall and Lonnie B. Williams, Wilmington, for Killingsworth and Johnson, respondent appellees.

SHARP, Justice:

The State assigns as error, inter alia, the admission into evidence of (1) respondents' Exhibits B and C; (2) testimony that respondents had sold eight acres of the land condemned, embracing twenty lots of Section One, for $160,000.00; (3) testimony that lots in a development on Shell Island were selling for $15,000.00 each (Exceptions 137-145); (4) the price which the State paid for three small tracts adjacent to the land taken; (5) testimony tending to show respondents' plans for the future use of the property taken; (6) a portion of the charge with reference to the character of respondents; (7) the court's order allowing expert witness fees to four of respondents' witnesses. (The foregoing enumeration is ours for convenience of discussion.)

The State's contentions with reference to assignments (1)-(3) are that the development of Ramsgate was still in the *651 embryonic stage; that the challenged evidence, which tended to portray it and to value it as a finished subdivision, caused the jury to assess damages in excess of just compensation. Respondents contend that under the decisions of this Court Exhibits B and C were competent to illustrate the testimony, and that "no value on a per lot basis was stated or suggested by any witness."

In condemnation proceedings, the well established rule is that in determining fair market value the essential inquiry is, "what is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adaptedthat is to say, what is it worth from its availability for all valuable uses?" Barnes v. North Carolina State Highway Commission, 250 N.C. 378, 387, 109 S.E.2d 219, 227 (1959). The following very perceptive comment on this rule appears in 4 Nichols, The Law of Eminent Domain § 12.3142(1) (3rd ed. 1971) (hereinafter cited as Nichols):

"The most characteristic illustration of the rule that market value is not limited to value for the existing use and the situation in which [the rule] is most frequently invoked (and also most frequently abused), is where evidence is offered of what the value of a tract of land that is used for agricultural purposes (or is vacant and unused) would be if cut up into house lots. It is well settled that if land is so situated that it is actually available for building purposes, its value for such purposes may be considered, even if it is used as a farm or is covered with brush and boulders. The measure of compensation is not, however, the aggregate of the prices of lots into which the tract could be best divided, since the expense of clearing off and improving the land, laying out streets, dividing it into lots, advertising and selling the same, holding it and paying taxes and interest until all the lots are disposed of cannot be ignored and is too uncertain and conjectural to be computed." (Emphasis added.)

The last two sentences of the foregoing quotation from Nichols was quoted, and accepted as the law of this State, in Barnes v. North Carolina State Highway Commission, supra at 388-389, 109 S.E.2d at 228. To further amplify the rule, Justice Clifton L. Moore, writing for the Court added: "It is proper to show that a particular tract of land is suitable and available for division into lots and is valuable for that purpose, but it is not proper to show the number and value of lots as separated parcels in an imaginary subdivision thereof. In other words, it is not proper for the jury in these cases to consider an undeveloped tract of land as though a subdivision thereon is an accomplished fact. Such undeveloped property may not be valued on a per lot basis. The cost factor is too speculative." Id. at 389, 109 S.E.2d at 228. Accord, State Highway Commission v. Conrad, 263 N.C. 394, 139 S.E.2d 553 (1965). Thus, in appraising an undeveloped tract of land which is adaptable to subdivision, the question is not what the tract might be worth if subdivided and sold as improved lots but what it was worth in the open market in its existing condition on the day of the taking. Northern Indiana Public Service Co. v. McCoy, 239 Ind. 301, 157 N.E.2d 181 (1959).

In Barnes, the Highway Commission took 12.19 acres of the petitioners' 46.86-acre tract for a limited access highway (expressway), and the petitioners brought a proceeding to obtain compensation. After the taking they had a civil engineer to make two maps of the property. One, made without reference to the expressway, showed a residential subdivision containing streets and 86 building lots. The other showed the expressway, streets, and 62 lots. At the trial, the petitioners offered the maps as substantive evidence that the land was capable of being subdivided into residential lots. The Commission's objection was sustained.

*652 Later, after an expert realtor had testified that the property, both before and after the taking, was adaptable to practical residential subdivision, the judge admitted the maps to illustrate and explain the testimony of the witness. He excluded testimony as to the value of the property based on the number of lots before and after taking and the value per lot, less estimated cost of subdividing and developing. Disappointed in the verdict, the petitioners appealed, assigning as error the judge's refusal to admit the two maps as substantive evidence and to permit the undeveloped property to be valued on a per lot basis. This Court held that the maps were properly excluded as substantive evidence and that the property could not be valued on a per-lot basis.

Although the Highway Commission had not appealed and no assignment of error challenged the use of the maps of the two "supposed subdivisions" for the purpose of illustrating the testimony of the witnesses, there appears in the opinion "a remark by the way" that "the maps showing subdivisions were relevant and competent to illustrate and explain the testimony as to the possibility and manner of subdividing. . .," id. 250 N.C. at 390, 109 S.E.2d at 229, and that "petitioners had the full benefit of the maps upon those phases of the case to which they properly pertained." Id. at 391, 109 S.E.2d at 229. Clearly this remark was dictum.

In State Highway Commission v. Conrad, supra, the landowner offered in evidence a map showing a proposed subdivision of condemned property upon which no improvements had been made and no lots laid out. The map was offered for the purpose of illustrating testimony that the highest and best available use of the land was for a residential subdivision. The trial judge excluded the map. On appeal his ruling was affirmed because (1) there was no showing that the map was prepared by an engineer from an actual survey; (2) there was no contest as to the best and highest capability of the property; and (3) the jury had viewed the premises. Justice Moore, again writing the Court's opinion, said that "under proper circumstances" a map of a proposed subdivision is admissible to illustrate and explain the testimony of witnesses as to the highest and best use of the property and to show that it is capable of subdivision; that the trial judge, in his discretion, may admit or exclude such evidence in accordance with the particular circumstances presented. He was careful to point out, however, that "such map should not be admitted where it is calculated to mislead the jury into allowing damages for improvements not in existence" and that where such a map is admitted in evidence testimony placing a price per lot should be excluded. Id. 263 N.C. at 398, 139 S.E.2d at 556.

Because "[e]xceptional circumstances will modify the most carefully guarded rule," 4 Nichols § 12.314, we make no attempt here to define the "proper circumstances" which will render a map of a proposed subdivision of undeveloped land admissible to explain the testimony of a witness. The opinion in Conrad suggests that when the highest and best use of the property is in dispute a subdivision map made by an expert engineer from an actual survey would be competent to illustrate his testimony that a subdivision was possible and practical. See Campbell v. City of New Haven, 101 Conn. 173, 125 A. 650 (1924), where the court in admitting such a map carefully limited it to that purpose and instructed the jury that it was not evidence of the use which the owner intended to make of the property at some future time. Certainly the admission of a map showing a subdivision which was not an accomplished fact would be an invitation to the jury to value improvements not in existence. In the absence of most positive instructions that the jury could not value the land on a per-lot basis, and an explanation of the reasons why it would be improper to do so, prejudice may be assumed.

*653 On their facts, Barnes and Conrad cannot be regarded as authorizing the admission of either Exhibit B or C in evidence in this case. We hold that the admission of these maps constituted prejudicial error.

Although the highest and best use for other portions of the 268.5 acres taken was in dispute, all the evidence tended to show that the 28.5 acres comprising Section One were adaptable to practical resort residential development. Exhibit B, therefore, was not offered to counter any contention by the State that a subdivision of Section One was either impossible or impractical. By survey and computation an expert civil engineer had determined that the plan could become an accomplished fact and, to that end, the streets shown on Exhibit B had been rough graded and could be seen on the groundnothing else. The development of Section One was far from being an accomplished fact. The Board of County Commissioners had not approved the plat of the proposed subdivision, and it had not been recorded. The plan could, therefore, have been changed at the will of the owners. To have sold a lot with reference to the plat would have been a misdemeanor. G.S. § 153-266.6 (1964). The rough-graded streets had been neither dedicated nor accepted. Even assuming eventual approval by the county commissioners of the planned subdivision, extensive and expensive work remained to be done before the realtor who was to handle the sale of the lots could go into action. The cost of developing the land into salable lots and then advertising and selling them, the amount of taxes, interest and maintenance to be paid until all the lots should be soldall of these items were clearly speculative and not susceptible of proof.

With reference to Exhibit B the judge told the jury only that the map was not substantive evidence and that its sole purpose was to illustrate the testimony of the witness Killingsworth. We apprehend that, as a practical matter, all the jury understood about Exhibit B from this instruction was that it showed 28.5 acres of the 268.5 taken to have been divided into 79 lots.

Thereafter Exhibit C was admitted in evidence. This map of the entire property taken showed not only respondents' immediate plans for 28.5 acres but their aspirations for much of the remaining acreage. It depicted the 79 lots of Section One laid out on the east side of the base of the Y, leaving approximately four-fifths of the entire ocean frontage apparently available for subdivision. By hatched lines it designated 20 lots which had been "sold" to DeLoach and Del-Cook. In addition, by dotted lines, it purported to show Section Two as 106 lots adjoining Section One on the west and extending south about halfway along the western stem of the Y. Section Two, which existed only in the minds of the planners, was indeed an imaginary subdivision on raw land in its original undeveloped state. Further, Exhibit C designated the entire north end of the base of the Y, which extended about 900 feet along the government taking line and over 600 feet along the ocean front, as a "Hotel-Motel Site" and "Proposed Development Office Site." The south end of the western prong was designated as "Marina and Marine Facility, Docks, Repairs, Fuel, Restaurant, etc." See Illustrative Maps Nos. 2 and 3.

At the time Exhibit C was received in evidence and placed on the wall, the jury was instructed to consider it for no purpose whatever except to illustrate the testimony of the witness Moorman and to disregard "any references thereon or any designation or information disclosed therein except that which illustrates the testimony of this witness." This instruction asked too much of the jury. The probability that this map, which showed nonexistent subdivisions, would mislead the jury into valuing nonexistent improvements created a risk which outweighed its value for illustrative purposes. We note that the judge at no time told the jury that in determining the market value of the land taken they could not consider the number of lots shown on the *654 map or value the undeveloped property on a per-lot basis. Exhibit C remained on the wall and was also used to illustrate the testimony of two other witnesses.

Moorman used Exhibit C to point out to the jury the 20 lots of Section One which respondents had conditionally sold to DeLoach and Del Cook for $160,000. Testimony by Killingsworth, admitted over the State's objection, tended to show lots in Section One had been sold for $8,000 each and that, on a per-lot basis, Section One had a value of $632,000. This evidence refutes respondents' contention that "no value on a per lot basis was stated or suggested by any witness." Whether the jury applied this evidence of value to the 106 lots shown in proposed Section Two we cannot know. The admission of the maps and the evidence of these two conditional sales, however, set the stage for the jury to value undeveloped land on a per-lot basis without reference to the cost of development.

Assuming the good faith of the transactions between respondents and DeLoach and Del-Cook, at most they were but conditional sales, dependent upon future accomplishments which the condemnation proceeding made impossible. Since payment of the purchase price was conditioned upon the completion of the subdivision at what cost per lot no one could then say the transactions in nowise disclosed what DeLoach or Del-Cook would have been willing to pay for the property as it was on 6 June 1968, the date of the "sales." The escrow arrangement, however, conclusively proved the unwillingness of each to pay $80,000.00 for 10 lots which then existed only on the map of a subdivision, the development of which had just been started. The admission of this evidence contravened decisions of this Court and constituted prejudicial error.

Similarly prejudicial was the evidence that lots, fronting 200 feet on the ocean and extending back 100 feet in the developed portion of Shell Island, were selling for $75.00 per front foot or $15,000.00 a lot. Respondents elicited this testimony during the cross-examination of the State's expert witness Cantwell, who had testified on direct examination to his opinion of the fair market value of the land taken. It was competent for respondents to question Cantwell's knowledge of the value of coastal lands in that area and, in response to such questions, he had said that he himself had appraised Shell Island and knew at what price lots thereon had been sold and the price at which the remaining lots were listed for sale. This information satisfied the only legitimate purpose the question could have had. The record does not disclose whether Shell Island, before it was developed, was land comparable to the land in suit, the extent of its present development, or any other facts which would make values on Shell Island evidence of the value of the subject property. Respondents' purpose in eliciting the figures $75.00 and $15,000.00 before the jury could only have been "to induce thereby a liberal award. This within itself would violate the applicable rule of evidence, since such evidence under the circumstances cannot be considered on the question of value." Barnes v. North Carolina State Highway Commission, supra 250 N.C. at 396, 109 S.E.2d at 233.

Question (4) involves the admissibility of the purchase price of the three adjacent small tracts which the State obtained from Morton and Orrell. The State argues (1) the disparity in size between each of the three lots and the subject property made the tracts dissimilar as a matter of law; (2) all the evidence tends to show dissimilarities which negate the court's findings that the tracts were in fact "sufficiently comparable" to render the purchase prices properly admissible in evidence; and (3) evidence of the price for which a condemnor purchased other land required for a project is not admissible as evidence of a value of land being condemned for it.

When it was first offered, and on a number of occasions thereafter, the State *655 forcefully objected to any evidence of the purchase price of these three tracts. However, on at least one occasion, this evidence went in without objection. Ordinarily such a failure to object would waive the previous objections. Price v. Whisnant, 232 N.C. 653, 62 S.E.2d 56 (1950). However, in view of the highly prejudicial nature of that evidence, we consider this assignment of error. The questions it poses are certain to recur upon the retrial of this case.

It is the rule in this State that the price paid at voluntary sales of land, similar in nature, location, and condition to the condemnee's 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. Redevelopment Comm. v. Denny Roll & Panel Co., 273 N.C. 368, 159 S.E.2d 861 (1968); State Highway Commission v. Conrad, supra.

It would seem that because of the difference in size between the 268.5 acres condemned and the three tracts purchased, and because of other differences, the trial judge should have ruled that the three tracts were not comparable properties. As one of respondents' expert witnesses pointed out, the largest of the three tracts "is not even five percent of the total of the subject property."

As pointed out in 5 Nichols § 21.31[3] (1969): "It is not necessarily objectionable that the lot of land, the price of which it is sought to put in evidence, is of different size and shape from the lot taken; nevertheless, the court may properly exclude evidence of the price paid for similar land in close proximity to the land taken if the lot sold is much smaller than the land in controversy. A large piece of land cannot usually be applied profitably to the same uses as a small piece, and if the large piece is to be cut up into lots of the same size as the small piece, the length of time necessary to dispose of the lots to different purchasers is so uncertain that the price at which one such lot would sell multiplied by the number of lots is no criterion of the present value of the entire parcel." See also Annot., 85 ALR2d 110, 143-149 (1962).

It is quite probable that the judge's findings with reference to the three tracts in question was materially influenced by the State's failure on voir dire to offer its evidence on this point. However, because of the view we take with reference to State's contention (3) above, it is not necessary for us to decide whether the judge's finding of similarity exceeded sound judicial discretion or was error as a matter of law.

The majority rule is "that evidence as to the price paid by the same or another condemning agency for other real property which, although subject to condemnation, was sold by the owner without the intervention of eminent domain proceedings, is rendered inadmissible to prove the value of the real property involved merely because the property was sold to a prospective condemnor." Annot., 85 ALR2d 110, 163 (1962). Accord, 5 Nichols § 21.33 (1969); 27 Am.Jur.2d Eminent Domain § 430 (1966). The rationale is that a sale to a prospective condemnor is in effect a forced sale; that at best it represents a compromise and consequently furnishes no true indication of the price at which the property could be sold in the open market to a "willing buyer"; that the condemnor may pay more in order to avoid the expense and uncertainty of the condemnation proceeding, while the seller may accept less in order to avoid the same or similar burdens. 1 Orgel, Valuation under the Law of Eminent Domain § 147 (2d ed. 1953). This reasoning also applies to amounts paid by a condemnor for neighboring land taken for the same projecthowever similar the lands may bewhether the payment was made as the result of a voluntary settlement, *656 an award, or the verdict of a jury. 5 Nichols § 21.33 (1969). See also 29A C.J. S. Eminent Domain § 273(7) (1965).

In some jurisdictions it is held that evidence of a sale otherwise competent is not necessarily inadmissible because the purchaser had the power of eminent domain. However, the burden is upon the party who offers such evidence to establish as a preliminary fact not only that the respective properties are comparable but also that the purchase was not so influenced by compromise or compulsion as to influence the price and therefore to destroy its usefulness as a standard of value. See authorities collected in Hannan v. United States, 76 U.S.App.D.C. 118, 131 F.2d 441, 442 (1942). See also Stewart v. Commonwealth etc., 337 S.W.2d 880 (Ky.1960); State v. McDonald, 88 Ariz. 1, 352 P.2d 343 (1960); Amory v. Commonwealth, 321 Mass. 240, 72 N.E.2d 549, 174 A.L.R. 370 (1947); I Wigmore, Evidence § 18(E) (3d ed. 1940). In Transwestern Pipeline Co. v. O'Brien, 418 F.2d 15 (CA 5th Cir. 1969), it is said that the burden of establishing the admissibility of evidence as to the price paid by a condemnor for other similar property "is a heavy one." Id. at 19.

This Court held in Nantahala Power & Light Co. v. Sloan, 227 N.C. 151, 41 S.E.2d 361 (1947), that the amount which the condemnor paid the respondent under a consent judgment for land taken in condemnation proceedings was incompetent to establish the value of additional land subsequently taken from the respondent. This rule was approved in Barnes v. North Carolina State Highway Commission, supra. See also North Carolina State Highway Commission v. Pearce, 261 N.C. 760, 136 S.E.2d 71 (1964). In Carver v. Lykes, 262 N.C. 345, 356, 137 S.E.2d 139, 148 (1964), we quoted with approval the following excerpt from II Wigmore, Evidence § 463 (3d ed. Supp.1962): "[E]vidence of amounts paid by the condemnor for property similarly situated, in the absence of extraordinary circumstances, (is) inadmissible, because such sales are involuntary and therefore, under the substantive law, run counter to the essential ingredient of fair market value."

It is our opinion that any sale to a prospective condemnor is highly unlikely to be a fair test of market value, and that a preliminary determination by the trial judge that the sale was not tainted by compulsion or compromise cannot establish it as a reliable standard. As the Court of Appeals of Kentucky said in Stewart v. Commonwealth, etc., supra, "We think that such an inquiry into matters of motivation ventures too far into the realm of speculation and is not a satisfactory substitute for the rule of nonadmissibility. We therefore adhere to the latter rule." Id. 337 S.W.2d at 882. For the same reason we hold that the admission of the prices paid for the three tracts, which tended to show an approximate per-acre valuation of from $5,000.00 to $9,700.00 for land adjacent to the 268.5 acres taken, constituted prejudicial error.

Question (5) is whether respondent Killingsworth's testimony that "at a future date" respondents "proposed" to construct a marina, a motel, and condominiums on the 268.5 acres condemned was incompetent and prejudicial. The answer is Yes.

It was entirely proper for respondents to offer evidence tending to show the highest and best use to which different areas of the 268.5 acres taken were adapted whatever that use might have been. However, "[I]t is not ordinarily competent for the owner to show what use he intended to put the property, nor what plans he had for its improvement, nor the probable future use of the property, nor the profits which would arise if the property were devoted to a particular use." 27 Am.Jur.2d Eminent Domain § 435 (1966).

In Wadsworth Land Co. v. Piedmont Traction Co., 162 N.C. 503, 78 S.E. 299 (1913), the sole issue was the market value *657 of land which defendants had condemned. The trial judge admitted evidence that the owner intended to convert a part of the condemned property into a park and beautify it "by laying off walks and building summer houses and otherwise." Upon appeal the Court awarded the defendants a new trial because the judge "erred in admitting evidence as to the speculative uses to which the owner intended to put the property and as to its contemplated improvement.. . ." Id. at 505, 78 S.E. at 299. Chief Justice Clark pointed out that, although it was proper to show the condition of the property, its surroundings and all the uses to which the land was adapted, it was not competent to prove by the owner the uses to which he had intended to devote it. Accord, Carolina Power & Light Co. v. Clark, 243 N.C. 577, 91 S.E.2d 569 (1956).

In condemnation proceedings the determinative question is: In its condition on the day of the 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 being "regarded as too remote and speculative to merit consideration." 4 Nichols § 12.314 (1971).

Here it was competent for the owners to show that, on the day of the taking, streets had been rough graded and surveyor's control stakes placed on the 28.5 acres as initial steps in laying out a subdivision on that portion of the condemned property. This evidence bore directly upon the value of the land on the day of the taking. (1) The actual laying out of streets tended to show that this section was adapted to use as a residential subdivision, and (2) the grading which had been done was a part of the overall condition of the land on the day it was taken and one of the factors to be considered in determining the value which Section One had at that time for development as a residential subdivision. However, the value of the property was not augmented because the condemnation proceeding prevented respondents from carrying out their plans to develop a subdivision. "[T]he value of the property may not be enhanced by reason of the frustration of the owner's plans with respect to his property. . . ." 4 Nichols § 12.3142[3] (1971).

Of course, the actual laying out of streets also evidences the owner's intended use of the property, but such evidence is not prejudicial when its purpose and effect is simply to show or illustrate the adaptability of a condemnee's land for the proposed use. However, evidence as to intended use "becomes improper and prejudicial if and when its purpose and effect is `to show enhanced loss because the owner is prohibited from carrying out that particular improvement',. . . or `if the object is to enhance the damages by showing such a [proposed] structure would be a profitable investment.'" Empire Dist. Electric Co. v. Johnston, 241 Mo.App. 759, 766, 268 S.W.2d 78, 82 (1954). Obviously, appropriate instructions are required to avoid confusion in the minds of the jurors when an owner's plans for his property have been demonstrably thwarted by a condemnation proceeding.

Question (6) is a challenge to the following portions of the charge:

"The payment of just compensation does not depend on whether the owners are of good character or otherwise. That is not the criterion. In this case the owners, from outward appearance and insofar as we know, are fine high quality citizens, good people, and they are entitled to just compensation. No more and no less. If there was any reason to suspect or know that they were less than good people, your duty would remain the same. They would be entitled to just compensation. No less and no more. Because it is a cardinal principle upon which our government is founded, that all citizens are entitled to just treatment whether they be high, low, rich or poor, humble or proud, and regardless of *658 race, color or creed. If there are times and occasions when our State or any governmental agency or local part thereof does not attain that ideal it is because of human weaknesses and limitations and it behooves all citizens and governmental agencies to strive constantly to overcome those shortcomings."

The character of an owner is clearly irrelevant to his right to receive just compensation when his land is taken by the State. Evidence of the good or bad character of a party to a civil action is generally inadmissible. Such evidence, inter alia, offers "a temptation to the jury to reward a good life or punish a bad man instead of deciding the issues before them." Stansbury, N.C. Evidence § 103 (2d ed. 1963). Until the credibility of a party who has testified in his own behalf has been impeached by imputations of bias, inconsistencies in his statements, or otherwise, his good character may not be proved to corroborate his testimony. Id. § 50.

In this case only one of the owners, respondent Killingsworth, testified. Neither the State nor respondents offered any evidence bearing upon his general character. The State contends that, in telling the jury the owners appeared to be "fine high quality citizens, good people and they are entitled to just compensation," in effect, the judge made himself a character witness for the owners and thereby bolstered the credibility of Killingsworth's estimate as to the value of the land and other disputed portions of his testimony. The State further contends that the court's admonition that it behooves all citizens and governmental agencies to strive constantly to overcome any shortcomings on the part of the State carried the implication that the State had not dealt fairly with respondents, as well as the suggestion that the jury should right the wrong.

The State's contentions have merit. The quoted charge was uncalled for in this case, and we apprehend that the jurors may have misinterpreted it to the State's prejudice. Such a result, of course, the judge did not intend. However, it is error for the court to charge upon an abstract principle of law or duties not applicable to the evidence in the case. White v. Cothran, 260 N.C. 510, 133 S.E.2d 132 (1963); Modern Electric Co. v. Dennis, 259 N.C. 354, 130 S.E.2d 547 (1963).

The State's final assignment of error for discussion is that the court erred in taxing against the State expert witness fees totaling $1,600.00 for four of respondents' witnesses: Walter Moorman, whom the court found to be an expert engineer in the field of land development, planning, and drainage$300.00; J. K. Taylor, Jr., Richard Kepley, and D. M. Stout, each of whom the court found to be an expert appraiser of real property$300.00, $400.00, and $600.00 respectively. The State's contention is that none of these witnesses were under subpoena and the court was, therefore, without authority to allow them expert witness fees. Respondents contend that, in contrast to other witnesses, there is no requirement that an expert witness must be under subpoena to collect a witness fee.

The court's power to tax costs is entirely dependent upon statutory authorization. City of Charlotte v. McNeely, 281 N.C. 684, 190 S.E.2d 179 (1972). In support of respective positions the parties rely upon G.S. § 7A-314 (Supp.1971) which, in pertinent part, provides:

"(a) A witness under subpoena, bound over, or recognized, other than a salaried State, county, or municipal law-enforcement officer, or an out-of-state witness in a criminal case, whether to testify before the court, jury of view, magistrate, clerk, referee, commissioner, appraiser, or arbitrator shall be entitled to receive five dollars ($5.00) per day, or fraction thereof, during his attendance, which must be certified to the clerk of superior court.

(d) An expert witness, other than a salaried State, county, or municipal law-enforcement officer, shall receive such *659 compensation and allowances as the court, in its discretion, may authorize. A law-enforcement officer who appears as an expert witness shall receive reimbursement for travel expenses only, as provided in subsection (b) of this section.

(e) If more than two witnesses are subpoenaed, bound over, or recognized, to prove a single material fact, the expense of the additional witnesses shall be borne by the party issuing or requesting the subpoena."

Respondents' position is that Section (a) above has no application to Section (d). As we interpret G.S. 7A-314, however, Sections (a) and (d) must be considered together. Section (a) makes a witness fee for any witness, except those specifically exempted therein, dependent upon his having been subpoenaed to testify in the case, and it fixes his fee at $5.00 per day. As to expert witnesses, Section (d) modifies Section (a) by permitting the court, in its discretion, to increase their compensation and allowances. The modification relates only to the amount of an expert witness's fee; it does not abrogate the requirement that all witnesses must be subpoenaed before they are entitled to compensation.

Since the witnesses Moorman, Taylor, Kepley, and Stout did not testify in obedience to a subpoena, we hold that the court was without authority to allow them expert fees or to tax the State with the costs of their attendance. "A witness who attends court without having been summoned is not entitled to prove his attendance so as to charge the losing party with the amount of his tickets." State v. Means, 175 N.C. 820, 822, 95 S.E. 912, 913 (1918). See also G.S. § 6-53 (Supp.1971). This holding renders Section (e) immaterial to decision here. However, we note that the testimony of witnesses Taylor, Kepley, and Stout tended to prove a single material fact, the fair market value of the land being taken. Thus, had these three witnesses been subpoenaed, under Section (e) the fees of only two could have been taxed against the State.

We deem it unnecessary to discuss the State's remaining assignments of error since they raise questions not likely to recur at the next trial. For the errors pointed out in the opinion the judgment of the Superior Court is vacated, and this cause is remanded for a retrial.

New trial.

MOORE, J., took no part in the consideration or decision of this case.

HIGGINS, J., concurs in result.