Duke Power Co. v. Ribet , 25 N.C. App. 87 ( 1975 )

212 S.E.2d 182 (1975) 25 N.C. App. 87

DUKE POWER COMPANY
v.
Ferdinand Arthur RIBET, Jr., et al.

No. 7425SC992.

Court of Appeals of North Carolina.

March 5, 1975.

Patton, Starnes & Thompson, by Thomas M. Starnes, Morganton, for petitioner.

John H. McMurray, Morganton, for the respondent.

BROCK, Chief Judge.

The power to condemn private property for electric transmission lines is granted to Duke Power Company, a public utility, by the provisions of G.S. § 40-2. Where an agency has the power of condemnation, the choice of route is primarily in its discretion 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 discretion. City of Charlotte v. McNeely, 281 N.C. 684, 190 S.E.2d 179 (1972). "Upon specific allegations tending to show bad faith, malice, wantonness, or oppressive and manifest abuse of discretion by the condemnor, the issue raised becomes the subject of judicial inquiry as a question of fact to be determined by the judge." City of Charlotte v. McNeely, supra at 690, 190 S.E.2d at 185. However, the exercise of discretion by the condemnor will not be interfered with on the ground that condemnor acted unreasonably and without justification when there is neither allegation nor evidence that condemnor acted either arbitrarily or capriciously or in a manner constituting an abuse of discretion in the selection of the route to condemn. Highway Commission v. Board of Education, 265 N.C. 35, 143 S.E.2d 87 (1965). Respondent neither alleged nor offered evidence that petitioner acted in such a manner.

The measure of damages or just compensation to be paid to the landowner is the difference in the fair market value of the land immediately before the taking and the fair market value immediately after the taking of the easement. 3 Strong, N.C. Index 2d, Eminent Domain § 5 (1967). Respondent neither alleged nor offered evidence of such fair market value.

Obviously the respondent did not want the electric transmission line constructed on his property. However, he has failed to allege or offer evidence of facts justifying judicial review of the exercise of the petitioner's discretion in choosing the route. In a like manner he has failed to allege or offer evidence of damages which would justify submitting an issue thereon to the jury. The directed verdict and judgment entered thereon are

Affirmed.

VAUGHN and MARTIN, JJ., concur.