#### CITY OF GREENSBORO v. A. D. GARRISON and ROXIE M. GARRISON, His Wife.

(Filed 25 November, 1925.)

1. Evidence — Opinion.

The evidence of witnesses who have had observation of certain conditions relevant and material to the inquiry involved in the action, is more broadly received now than heretofore, upon the ground that it is more enlightening to the jury who could not have had this opportunity, and aids them in their conclusion.

2. Same — Municipal Corporations — Cities and Towns — Condemnation— Damages.

Upon the measure of damages to be paid to the owner for the taking of his land for a ditch to be used by a city in connection with its public works, it is competent for a witness to state that before the final completion of the ditch, he had observed the property, and to give his estimate of the difference in value of the owner’s land just before and after the time of its appropriation.

3. Same — Appeal and Error — Harmless Error.

Upon the question of the measure of damages to be paid to the private owner of land for its taking by a city for public use, it is harmless error to the city to reject its testimony tending to show the owner’s idea of his damages in a conversation with an employee of the city, authorized by it as its agent in this matter, when the other evidence in the case sufficiently covers the evidence sought to be elicited.

Appeal by plaintiff from *McElroy, J.,*at March Term, 1925, of Guilpoed.

Under authority conferred by Private Laws 1925, ch. 37, the city of Greensboro instituted a proceeding to condemn a right of way ten feet wide over the land of the respondents for. the construction of a sewer line connecting Arlington and Yance streets. Appraisers were appointed and they made their report, assessing damages. To this award the city and the property owners excepted, and appealed to the Superior Court. It was admitted upon the trial that the respondents are the owners in fee of the land described in the pleadings; that the city has the right of condemnation; that the proceeding was regular; and that only the issue of damages-was to be determined. The jury heard the evidence and assessed damages. Judgment was rendered for owners of the property, and the city appealed assigning error.

*Fentress & Moseley for appellant.*

*Frazier & Frazier for appellees.*

Adams, J.

G. C. Hill, a witness for the respondents, went to Garrison’s home and looked over the premises while the ditch was open. On *578the direct examination he was permitted after objection to express his opinion as to the difference in the fair market value of the property just before and just after the construction of the sewer. He testified on the cross-examination: “I do not know of my own knowledge that this ditch has ever been closed up. I judge that the ditch has been closed up. I am basing my estimate on the ditch open, that is, when I saw it.” On the redirect examination, in answer to a hypothetical question to which there was no objection, he gave his estimate of the decreased value of the property on the assumption that the sewer line had been laid and the ditch closed.

McKelvey, in his work on Evidence, 231, observes there are two classes of witnesses who are ordinarily spoken of as experts, — one class embracing these persons who, by reason of special opportunities for observation, are in a position to judge of the nature and effect of certain matters better than persons who have not had opportunity for like observation. Referring to the subject in *Harper v. Lenoir,*152 N. C., 723, 730, the Court said: “Evidence of this character from witnesses who have had personal observation of relevant facts and conditions, and whose opinion is calculated to aid the jury to a correct conclusion, is coming to be more and more regarded as competent, and its reception has been sanctioned and approved in several recent decisions of the Court.” The general principle upon which this class of evidence is admitted is laid down ■in 4 Wigmore on Evidence, 2 ed. sec. 1917, and approved among others in the following cases: *Taylor v. Security Co.,*145 N. C., 383; *Wade v. Telephone Co.,*147 N. C., 219; *Davenport v. R. R.,*148 N. C., 287, 294; *Wilkinson v. Dunbar,*149 N. C., 20; *Lumber Co. v. R. R.,*151 N. C., 217; *R. R. v. Mfg. Co.,*169 N. C., 156; *Lambeth v. Thomasville,*179 N. C., 452; *Hill v. R. R.,*186 N. C., 476.

The appellant admits the general principle but contends that under the peculiar circumstances of the case the witness was not qualified to express an opinion as to the decreased value of the property after the ditch had been closed. It will be noted that the question objected to was addressed to “the difference in the fair market value of the property of Mr. Garrison just before and just after the taking of the right of way for the sewer line and the building of the sewer line.” Also that the estimate of the witness was based upon his personal observation of the land as he saw it when the ditch was open. As tending to show his estimate of value made upon observation the evidence was not incompetent merely because the work had not then been completed. The dimensions of the ditch had previously been described by Garrison; and as the witness was afterwards permitted without objection to give his estimate of damages resulting from the completed work we see no satis*579factory reason for excluding tbe estimate made upon bis observation of tbe open ditcb. In any event it was a circumstance for tbe consideration of tbe jury.

Tbe second exception was taken to tbe exclusion of tbe testimony of M. M. Boyles, a witness for tbe city. He was an engineer of tbe water and sewer department and supervised tbe construction of tbe sewer line through Garrison’s lot. If admitted, bis testimony would bave been as follows: “When I went to see Mr. Garrison, I told bim that we wanted to run a sewer across bis property. I told bim tbat we wanted to run tbe sewer line where it was finally located, and went into some details about it. Tbe plan and profiles of tbat plan bad already been prepared. He did not make me a proposition to grant tbe easement for so much money but for certain work to be done; tbat is certain work on tbe open ditcb across bis lot.” “Q. What was tbe figure you named as being sufficient to cover tbe ditcb, and which be said would be satisfactory to bim in consideration Of bis giving the city tbe right to build tbe line? A. According to tbe figures I told bim it was $350.00. Q. What did be tell you tbat tbe line could be built for ? A. He told me, basing it on tbe concrete tbat be bad put in tbe sides and bottom, tbat it ought not to cost over $100.00 or $125.00.”

Tbe city contends tbat Garrison’s statement was equivalent to an offer to sell for a named price and involved bis estimate as to tbe value of tbe easement; tbe respondents contend tbat tbe offer was in tbe nature of a compromise and therefore inadmissible.

An unaccepted offer of compromise made pending tbe treaty cannot be proved; but here tbe city insists tbat no treaty was pending. It is true tbat no proceeding bad been instituted for tbe appropriation of tbe property; but this does not mean tbat tbe negotiations of tbe parties were not sanctioned by law. A former charter of tbe city was repealed and another act of incorporation was passed by tbe Legislature in 1923. Private Laws, cb. 37. Section 72 provides tbat if land or a right of way shall be required for any of tbe purposes authorized by tbe charter and tbe owner and tbe city council cannot agree upon tbe compensation tbe property may be condemned; and C. S., 2792(a) (vol. 3), provides tbat tbe powers therein granted cities to improve their streets, drainage, and sewer conditions shall be supplementary to tbe powers granted in th'eir charters, and in case this section shall be in conflict with tbe charter, tbe city may in its discretion proceed in accordance with tbe charter or with tbe statute law. In section 2792 it is said tbat if tbe parties cannot agree for tbe purchase of tbe land condemnation may be made under article 2 in tbe chapter on Eminent Domain.

All these statutes, tbe charter and tbe general law, contemplate negotiations before tbe institution of any proceeding for condemnation; and *580for tbis reason we should hesitate to say that the “proposal of a peace offering” intended to bring about a preliminary agreement as to the compensation was not made pending the treaty. *Poteat v. Badget,*20 N. C., 349; *Sutton v. Robeson,*31 N. C., 381; *Daniel v. Wilkerson,*35 N. C., 329; *Hughes v. Boone,*102 N. C., 137; *Montgomery v. Lewis, 187*N. C., *577.*

But we think the decision of this point is at present unnecessary. If it be conceded that the excluded testimony would have disclosed an offer to grant the easement, it would also have shown that the proposed consideration was “not so much money,” but “certain work to be done.” If it be granted further that it would have disclosed Garrison’s estimate of the cost, is not his estimate practically the same as the estimate accredited to him by Boyles? They were debating the cost of putting a concrete top on a ditch, forty or fifty feet in length, extending diagonally across the lot. Boyles would have said Garrison had fixed the cost at not more than $100 or $125. Garrison testified that he had built the two concrete sides and the concrete bottom at a cost of about $300,— each at a cost of about $100. True, this would not necessarily have made the cost, of the top of $100, but Garrison said also, “I don’t know that the top would cost any more than the bottom or the sides.” Garrison’s estimate was substantially what Boyles offered to prove; and as there was sufficient evidence to enable the jury to determine the cost of building a top for the ditch and as this cost was the consideration named by Garrison for the easement, we see no prejudicial error in the exclusion of the testimony.

No error.