#### C. I. CALHOUN et al. v. STATE HIGHWAY AND PUBLIC WORKS COMMISSION.

(Filed 18 September, 1935.)

1. Appeal and Error B b—

A point of law debated on brief, but not mooted in tbe trial court nor supported by tbe record, will not be decided on appeal, but in tbis case, as a new trial is awarded upon exception to tbe court’s refusal to give instructions requested, tbe parties will bave opportunity to be beard on tbe matter upon tbe subsequent bearing.

2. Eminent Domain O c—

An abutting property owner may not recover for damages to bis land caused by changing tbe grade of an established street or road when such *425change is made pursuant to lawful authority and there is no negligence in the manner or method of doing the work.

3. Trial E e—

When a party tenders a request for a specific instruction, correct in itself and supported by the evidence, the failure of the trial court to give such instruction, in substance at least, either in response to the prayer or in some portion of the charge, is reversible error.

Appeal by defendant from *Alley, J.,*at June Term, 1935, of CHEROKEE.

Civil action for assessment of damages to plaintiffs’ lot in the Town of Murphy, caused by the regrading of Highway No. 28, leading into said town from the west.

It is in evidence that the defendant relocated the road in question, raised the grade in front of plaintiffs’ house 3 or 4 feet, and encroached upon plaintiffs’ property by spreading the base of the road in elevating the grade.

In apt time, the defendant requested the court to instruct the jury as follows:

“The petitioner is entitled to have compensation for the reasonable market value of any part of his property which was taken for the public use, and for any damage to the remaining property caused by such taking, but the petitioner is not entitled to recover damages for raising the grade of the old highway. The old highway already belonged to the public, and the State could either raise or lower the grade of that road without answering to the petitioners in damage. You should not, therefore, allow the petitioners any damage for raising the grade within the limits of the old road, but should confine yourselves to such property as you may find the defendants to have taken, if any, and such damages, if any, as wrere occasioned the petitioners’ property by such taking.” Prayer refused; exception.

From verdict and judgment for plaintiffs, the defendant appeals, assigning errors.

*Moody & Moody and D. Witherspoon for plaintiffs.*

*Charles Boss and Gray & Christopher for defendant.*

Stacy, 0. J.

The principal matter debated on brief is whether the action was commenced within six months from the completion of the project as provided by C. S., 3846 (bb). The question was not mooted in the court below and there is nothing on the record to show whether the action was, or was not, brought within the requisite time. In this state of the record, it would seem that, with justice to all, the question might well be left undecided, as a new trial must be awarded for failure *426*to give*tbe special instruction requested by defendant. Tbis will afford botb sides equal opportunity to be beard on tbe point at tbe next bearing. .

. With respect to tbe special instruction, requested by tbe defendant, it is tbe rule witb us, and very generally beld elsewhere, tbat, unless otherwise provided by statute or constitutional provision, an abutting property owner may not recover for damages to bis land caused by changing tbe grade of an established street or road when such change is made pursuant to lawful authority and there is no negligence in tbe manner or method of doing tbe work. *Wood v. Land Co.,*165 N. C., 367, 81 S. E., 422; *Harper v. Lenoir,*152 N. C., 723, 68 S. E., 228; *Dorsey v. Henderson,*148 N. C., 423, 62 S. E., 547; *Jones v. Henderson,*147 N. C., 120, 60 S. E., 894; *Wolfe v. Pearson,*114 N. C., 621, 19 S. E., 264; *Meares v. Wilmington,*31 N. C., 73. Compare *Bost v. Cabarrus,*152 N. C., 531, 67 S. E., 1066.

Tbe prayer being properly presented, in apt time, and containing a correct legal request, pertinent to tbe evidence and tbe issue in tbe ease, it was error to refuse it. *Michaux v. Rubber Co.,*190 N. C., 617, 130 S. E., 306. Tbe rule of practice is well established in tbis jurisdiction tbat when a request is made for a specific instruction, correct in itself and supported by evidence, tbe trial court, while not obliged to adopt tbe precise language of tbe prayer, is nevertheless required to give tbe instruction, in substance at least, and unless tbis is done, either in direct response to tbe prayer or otherwise in some portion of tbe charge, tbe failure will constitute reversible error. *Parks v. Trust Co.,*195 N. C., 453, 142 S. E., 473; *Marcom v. R. R.,*165 N. C., 259, 81 S. E., 290; *Irvin v. R. R.,*164 N. C., 5, 80 S. E., 78; C. S., 565.

Tbe defendant is entitled to a new trial. It is so ordered.

New trial.