
    WADSWORTH LAND COMPANY v. CHARLOTTE ELECTRIC COMPANY and PIEDMONT TRACTION COMPANY, Consolidated with PIEDMONT TRACTION COMPANY, Petitionee, v. WADSWORTH LAND COMPANY.
    (Filed 1 December, 1915.)
    1. Instructions — Railroads—Condemnation—Measure of Damages — Statement of Contentions.
    Where the court substantially instructs the jury in condemnation proceedings for railroad purposes that the measure of damages is the difference between the market value of the land before and after its appropriation for a right of way, it will not be considered as error that, in stating the contentions of the parties, he said more or less about the value of the land for residential, municipal, and industrial purposes.
    2. Trials— Railroads — Condemnation — Argument — Damages — Speculative Tallies — Appeal and Error.
    Argument of counsel on speculative values for the lands taken for railroad purposes in condemnation proceedings will not be considered as ground for reversible error on appeal when it appears that the trial court, at the time of the objection, corrected any erroneous impression they may have made on the jury and afterwards instructed them not to consider anything not based on the evidence in the case relating thereto.
    
      3. Appeal and Error — Objections and Exceptions — Unanswered Questions.
    The exclusion of evidence tending to show the right of the defendant electric company to haul freight over its lines, in these proceedings upon the question of damages recoverable by the owner of lands for a right of way condemned thereover, was proper under the former decision in this case. 162 N. C., 504.
    4. Issues — Condemnation—Special Benefits.
    In these proceedings to assess damages to the owner of lands for a right of way taken in condemnation proceedings, it is held that the issue submitted was sufficient to include any special benefits claimed by the defendant to inure to the lands, and the charge gave the defendant the full benefit thereof.
    5. Condemnation — Kailroads—Measure of Damages — Unsightly Construction —Evidence.
    The exception to the charge of the court in this case allowing damages to the land assessed for a right of way on account of the unsightliness of the street railway construction thereon is not sustained on appeal.
    6. Instructions — Bailroads—Condemnation—Character of lands — Appeal and Error. 0
    It was correct for the judge to refuse to charge that the land over which the defendant railway company had condemned a right of way was unsuitable for high-class residential development, under the evidence in this case.
    Appeal by Piedmont Traction Company from Lane, J., at May Term, 1915, of MeckleNbueg.
    These two actions were consolidated and tried together upon this issue:
    What damages, if any, shall the Piedmont Traction Company be required to pay the Wadsworth Land Company as compensation for the condemnation of the right of way described in the traction company’s amended petition? Answer: “$20,000.”
    From the judgment rendered, defendant the Piedmont Traction Company appealed.
    
      Tillett & Guthrie, J. W. Keerans, Oansler & Gansler for plaintiffs.
    
    
      Osborne, Coche & Robinson, Pharr & Pell, John M. Robinson for defendant.
    
   Pee CueiaM.

The only questions presented on this appeal arise upon the one issue of damages. The Piedmont Traction Company seeks to condemn a right of way for its railroad through the plaintiff’s land. At a former trial the plaintiff recovered a judgment for $35,000, and upon appeal to this Court a new trial was ordered. 162 N. O., 504. Upon the last trial the damages were assessed at $20,000. There seems to have been taken a very large number of exceptions which have been reduced to eigbty-six assignments of error, and these in turn have been reduced to eleven points set out in the able and elaborate brief of counsel for defendant.

1. It is contended tbat tbe court erred in instructing tbe jury to estimate tbe damages to tbe plaintiff’s property upon tbe basis of its use for tbe particular purpose of a bigb-class residential development, and in refusing to instruct tbe jury tbat tbe measure of damages was tbe difference in its market value before and after tbe taking for all purposes. Tbis contention cannot be sustained. It is true, tbe court said more or less about tbe value of tbis property for residential purposes and also for municipal and industrial purposes, but a careful examination of tbe charge shows tbat tbat was largely in stating tbe contentions of both sides. Tbe court, instructed tbe jury substantially, so tbat they could not well have misunderstood what was said, tbat tbe proper measure of damages where lands are taken for railroad purposes is the difference between tbe market value of tbe land before and after its appropriation for a right of way. Tbis is in accord with tbe former opinion in tbis case.

2. It is objected tbat bis Honor erred in permitting counsel for tbe plaintiff, in arguing tbe case to tbe jury, to speculate as to tbe future uses to which tbe property might be put. In trying a case of tbis sort it is very difficult to prevent arguments tbat are not based solely upon tbe evidence. In tbis ease tbe court did all it could in specifically instructing tbe jury to disregard any argument of counsel not based on tbe evidence, and tbis instruction was given at tbe time when tbe counsel for tbe defendant objected to such argument.

3. It is objected that tbe court erred in refusing to allow tbe traction company to show, and in refusing to charge tbe jury, tbat tbe electric company bad tbe right to haul freight, under its contract with tbe Wads-worth heirs, over its property. It was expressly decided by tbis Court in tbe former appeal tbat if tbe electric company bad tbe right to haul freight over tbe land, it could not transfer tbat right to tbis defendant. An examination of tbe contract between tbe electric company and tbe Wadsworth heirs fails to disclose tbat tbe Wadsworths conferred upon tbe electric company tbe right to run freight trains through tbe property. Tbe last clause of tbe contract indicates tbat tbe railway system to be operated was a .street car system, and tbat it was to be operated in connection with tbe street railway system for tbe city of Charlotte, and tbat tbe cars to be used thereon were to be similar to those used on tbe -street railway of Charlotte.

4. It is contended tbat an issue tendered by tbe defendant in reference to special benefits should have been submitted to tbe jury. We think tbe defendant bad ample opportunity to offer all tbe evidence bearing upon any special benefits claimed to inure to tbe property under tbe form of tbe issue as submitted. We think tbe court in tbe charge gave tbe defendant full benefit of its claim in this respect.

5. It is contended that the court should have charged the jury that they had no right to take into consideration the unsightliness and depreciation of the value of the property in consequence of the traction company’s poles and trolley wires. We think his Honor properly charged the jury in this respect and that there was evidence to the effect that the poles projected out into the street, and were unsightly and were a source of danger to persons, and would tend to decrease the value of the property generally.

6. It is contended that the court erred in refusing to charge the jury that the property of the land company was unsuitable for high-class residential development. This was a matter of dispute in the evidence and was properly submitted to the jury for their consideration as an element of value.

7. The defendant insists that it was seriously prejudiced by an unfair statement of the contentions of the parties, as given to the jury by the court. A careful reading of the charge of the court satisfies us that it is not justly amenable to this criticism.

The other four points discussed in the defendant’s brief we do not think necessary to discuss. A careful examination of the voluminous record in this case, assisted as we have been by unusually full briefs, satisfies us that no substantial error has been committed which would justify us in ordering another trial of this case, which has been tried once before.

No error.  