Wake electric1/28/2024 In light of these facts, we think this appeal may be disposed of by the consideration and determination of these questions: (1) Is the defendant entitled to relocate its power line on the premises of the plaintiff under the terms of the easement held by it, without paying additional compensation therefor? (2) Did the plaintiff have the right to determine where the new right of way should be located, and if so, did he waive such right by his failure to object to the location chosen by the defendant until the work in connection with the relocation of the line was approximately two-thirds finished? Hence, the defendant cut its right of way through the woods near the top of the embankment. Consequently, there is no room between the southbound lane of the dual highway and the highway bank to the west of said lane for the location of the defendant's power line. Therefore, since the plaintiff's land slopes toward the highway at a grade of about forty-five per cent, the Highway Commission, in grading for the new highway, necessarily left a high bank west of the new southbound lane through the plaintiff's farm. However, in constructing the southbound lane of the new dual highway, the Highway Commission left a strip of land approximately 30 feet wide between the north and south lanes of the new highway and extended its right of way, according to plaintiff's Exhibit A, approximately 50 feet west of the western edge of the pavement of the southbound lane of the dual highway. 1 and approximately the same distance therefrom as the present power line does from the western edge of the present right of way of the new dual-lane highway. 1, the defendant's power line occupied space west of the right of way of U. The sole question presented on this appeal is whether or not the court below committed error in sustaining the defendant's motion for judgment as of nonsuit and in entering judgment accordingly.Īs we interpret plaintiff's evidence, before the Highway and Public Works Commission *354 built the southbound lane of the dual highway to the west of what is now the northbound lane of U. Yarborough, Hill Yarborough, Louisburg, for plaintiff appellant.ĭonald Gulley, Wake Forest, Malone & Malone, Louisburg, for defendant appellee.
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