
    12788
    SPARTANBURG COUNTY HIGHWAY COMMISSION v. SOUTHERN RY. CO.
    (150 S. E., 894)
    
      Messrs. H. B. DePass and Prank G. Tompkins, for .appellant.
    
      
      Messrs. Nicholls, Wyche & Byrnes, for respondent.
    December 17, 1929.
   The opinion of the Court was delivered by

Mr. Justice Cothran.

This is an appeal from a verdict and judgment in a condemnation proceeding.

The land of the railway company, through which the commission sought to condemn a right of way, consists of a tract containing 50 or more acres; the highway with its right of way cuts off a small triangular piece of land separated from the major portion of the land.

The jury rendered a verdict to the effect that the benefits to the landowner counterbalanced any damage sustained.

The railway company has appealed upon the sole ground of error in the Judge’s charge to the effect: “If you come to the conclusion that the premises in question, the small tract of land, or any land adjoining it, has been benefited by reason of the construction of the road, then you will assess that benefit and take it away from the damages.”

The contention is that the jury was permitted to consider the benefit to other adjoining lands which belonged to other persons, and was not confined, as it should have been, to the ■ land of the railway company.

We think that the expression used by his Honor, Judge Sease, clearly referred to the triangular piece of land and to the land of the Railway Company which adjoined and was separated from it by the highway. This appears to have been the understanding at the time of all parties, and, if the jury might have been misled by the expression which is claimed to have been ambiguous and misleading, doubtless his Honor would have made the matter clear if he had been so requested.

The judgment of this Court is that the judgment of the Circuit Court be affirmed.

Mr. Chief Justice Watts and Messrs. Justices Brease, Stabler and Carter concur.  