Barnes v. North Carolina State Highway Commission

• Decision Date: 12 June 1959
• Docket Number: No. 389,389
• Citation: 109 S.E.2d 219,250 N.C. 378
• Court: North Carolina Supreme Court
• Parties: Mary L. BARNES and husband, J. T. Barnes, Jr., Virginia L. Irvin and husband, George L. Irvin, Jr., Barbara L. Hanes and husband, Frank B. Hanes, and Wachovia Bank and Trust Company, Trustee under the Will of Nancy L. Lasater, Petitioners, v. NORTH CAROLINA STATE HIGHWAY COMMISSION, Respondent.

Page 219

109 S.E.2d 219

250 N.C. 378

Mary L. BARNES and husband, J. T. Barnes, Jr., Virginia L.

Irvin and husband, George L. Irvin, Jr., Barbara L. Hanes

and husband, Frank B. Hanes, and Wachovia Bank and Trust

Company, Trustee under the Will of Nancy L. Lasater, Petitioners, v. NORTH CAROLINA STATE HIGHWAY COMMISSION, Respondent.

No. 389

Supreme Court of North Carolina.

June 12, 1959

Vaughn, Hudson, Ferrell & Carter, R. M. Stockton, Jr., and Norwood Robinson, Winston-Salem, for petitioners-appellants.

Malcolm B. Seawell, Atty. Gen., Kenneth F. Wooten, Jr., Asst. Atty. Gen., H. Horton Rountree, Raleigh, and Womble, Carlyle, Sandridge & Rice, Winston-Salem, for respondent-appellee.

MOORE, Justice.

The appellants made thirty-five assignments of error in the record on this appeal. Decision in this case requires discussion of the following questions of law raised by the assignments of error.

(1) Appellants' original petition did not include tract No. 3, the 6.72 acres lying east of Knollwood Street and south of the Easement. Respondent moved before the Clerk to have this portion of the land included in the proceeding. The Clerk denied the motion and respondent excepted. The motion was heard in Superior Court preliminary to the trial. The judge made an order adding tract No. 3 to the proceeding and adjudging, in effect, that the whole property, 46.86 acres, 'is properly to be included for consideration in the assessment of damages and offsetting general and special benefits, if any * * *.'

Appellants contend that the Expressway crosses no part of tract No. 3, that it is separated from tract No. 2 by the Easement, that a portion of it is zoned for business while the other tracts are zoned for residences, and that the inclusion thereof was prejudicial to them. On the other hand, appellee contends that tracts 2 and 3 are logically a single tract crossed only by a private easement, that the portion immediately south of the Easement has the same zoning classification as tract No. 2, that the portion zoned for business is only a small area of about 2 acres abutting on South Stratford Road, and that a fair assessment of damages and benefits requires that the entire tract be considered.

It must be assumed that the respondent desired the inclusion of tract No. 3 because it proposed to offer evidence that this portion was benefitted by the Expressway. It is evident that petitioners desired it excluded for the reason that, in their opinion, they could show no substantial damage to this area by construction of the Expressway.

Where a portion of a tract of land is taken for highway purposes, the just compensation to which the landowner is entitled is the difference between the fair market value of the property as a whole immediately before and immediately after the appropriation of the portion thereof. In arriving at this difference consideration must be given to the general and special benefits accruing to the landowner with respect to the land not taken. That difference includes everything which affects the value of the property taken in relation to the entire property affected. Gallimore v. State Highway and Public Works Commission, 241 N.C. 350, 354, 85 S.E.2d 392.

The question is: Was the 6.72 acres tract No. 3, such an affected part of the whole tract as to require its inclusion in order to determine what was just compensation?

'It is well settled that when the whole or a part of a particular tract of land is taken for the public use, the owner of such land is not entitled to compensation for injury to other separate and independent parcels belonging to him which results from the taking.' Nichols on Eminent Domain (3rd Edition), sec. 14.3, p. 426; Sharp v. United States, 191 U.S. 341, 24 S.Ct. 114, 48 L.Ed. 211, affirming 3 Cir., 112 F. 893, 50 C.C.A. 597, 57 L.R.A. 932. The North Carolina statute provides that 'in all instances (where a portion of a tract of land is taken for highway purposes) the general and special benefits shall be assessed as offsets against damages.' (Parentheses ours.) G.S. § 136-19. It follows that, when the State takes a part or all of a tract of land for highway purposes, it is not entitled to offset against damages the benefits to other separate and independent parcel or parcels belonging to the landowner whose land was taken.

Ordinarily the question, whether two or more parcels of land constitute one tract for the purpose of assessing damages for injury to the portion not taken or offsetting benefits against damages, is one of law for the court. However, where the doubt is factual, depending upon conflicting evidence, the court may submit issues to the jury under proper instructions. Annotation, 6 A.L.R.2d 1207, and cases there cited.

In the instant case the facts are not in dispute.

There is no single rule or principle established for determining the unity of lands for the purpose of awarding damages or offsetting benefits in eminent domain cases. The factors most generally emphasized are unity of ownership, physical unity and unity of use. Under certain circumstances the presence of all these unities is not essential. The respective importance of these factors depends upon the factual situations in individual cases. Usually unity of use is given greatest emphasis.

The parcels claimed as a single tract must be owned by the same party or parties. It is not a requisite for unity of ownership that a party have the same quantity or quality of interest or estate in all parts of the tract. But where there are tenants in common, one or more of the tenants must own some interest and estate in the entire tract. Tyson v. State Highway Commission, 249 N.C. 732, 107 S.E.2d 630. Under some circumstances the fact that the land is acquired in a single transaction will strengthen the claim of unity. But the fact that the land was acquired in small parcels at different times does not necessarily render the parcels separate and independent. However, there must be a substantial unity of ownership. Different owners of adjoining parcels may not unite them as one tract, nor may an owner of one tract unite with his land adjoining tracts of other owners for the purpose of showing thereby greater damages. Nantahala Power & Light Co. v. Moss, 220 N.C. 200, 207, 17 S.E.2d 10.

The general rule is that parcels of land must be contiguous in order to constitute them a single tract for severance damages and benefits. But in exceptional cases, where there is an indivisible unity of use, owners have been permitted to include parcels in condemnation proceedings that are physically separate and to treat them as a unit. It is generally held that parcels of land separated by an established city street, in use by the public, are separate and independent as a matter of law. Todd v. Kankakee & I. Railroad Co., 1875, 78 Ill. 530; Wellington v. Boston & M. Railroad Co., 1895, 164 Mass. 380, 41 N.E. 652. 'When land is unoccupied and so not devoted to use of any character, and especially when it is held for purposes of sale in building lots, a physicial division by wrought roads and streets creates independent parcels as a matter of law * * * (but) If the whole estate is practically one, the intervention of a public highway legally laid out but not visible on the surface of the ground is not conclusive that the estate is separated.' Nichols on Eminent Domain (3rd Edition), sec. 14.31(1), Vol. 4, pp. 437-8. Lots separated by a public alley but in a common enclosure have been held to be a single property. Mere paper division, lot or property lines, and undeveloped streets and alleys are not sufficient alone to destroy the unity of land. 'If the owner's land is merely crossed by the easement of another, the fee remaining in him, and the sections so made are not actually devoted, as so divided, to wholly different uses, they are to be considered actually contiguous and so as a single parcel or tract.' 6 A.L.R.2d 1200, sec. 2.

As indicated above, the factor most often applied and controlling in determining whether land is a single tract is unity of use. Regardless of contiguity and unity of ownership, ordinarily lands will not be considered a single tract unless there is unity of use. It has been said that 'there must be such a connection, or relation of adaptation, convenience, and actual and permanent use between them, as to make the enjoyment of the parcel taken, reasonably and substantially necessary to the enjoyment of the parcel left, in the most advantageous and profitable manner in the business for which it is used.' Peck v. Superior Short Line Railway Co., 1887, 36 Minn. 343, 31 N.W. 217, 218. The unifying use must be a present use. A mere intended use cannot be given effect. If the uses of two or more sections of land are different and inconsistent, no claim of unity can be maintained. But the mere possibility of adaptability to different uses will not render segments of land separate and independent. If a map of a proposed subdivision is made and the lots shown thereon are actually a compact body of land, used and occupied as an entirety, they are to be treated as one tract notwithstanding the division into imaginary lots. It has been held that where suburban lots acquired under separate titles are divided by an established highway, they will be considered as one tract where the owner uses them together for tillage and cultivation in connection with his residence on one of them. Welch v. Milwaukee & St. Paul Railway Co., 1890, 27 Wis. 108. '* * * (I)f a tract of land, no part of which is taken, is used in connection with the same farm, or the same manufacturing establishment, or the same enterprise of any other character as the tract, part of which was taken, it is not considered a separate and independent parcel merely because it was bought at a different time, and separated by an imaginary line, or even if the two tracts are separated by a highway, railroad, or canal.' 18 Am.Jur., Eminent Domain, ...