De Bruhl v. State Highway and Public Works Commission, 98

Decision Date26 February 1958
Docket NumberNo. 98,98
Citation247 N.C. 671,102 S.E.2d 229
CourtNorth Carolina Supreme Court
PartiesArthur M. DE BRUHL and wife, Janie W. De Bruhl, Petitioners. v. STATE HIGHWAY AND PUBLIC WORKS COMMISSION, Respondent.

George B. Patton, Atty. Gen., R. Brookes Peters, Asst. Atty. Gen., and McLean, Gudger, Elmore & Martin, Associate Counsel, Asheville, for respondent-appellant.

Sanford W. Brown, Asheville, for petitioners-appellees.

PARKER, Justice.

For the six years prior to 1948 petitioners were the owners of a lot on the south side of Druid Drive in the City of Asheville, fifty feet wide and about one hundred and forty-eight feet deep. Situate on the lot was a brick veneer house in which petitioners lived. Work for relocating and reconstructing U. S. Highways 19-23 through a section of West Asheville was begun under Project 9075 for the first land by respondent in 1949. For this purpose respondent in 1949 purchased from petitioners for $4,700 a right of way across the back portion of their lot and the back part of their house on the right of way.

Petitioners continued to live in their house. In March 1952 respondent began work for widening U. S. Highways 19-23 to dual lane highways under Project 9086. To do this it was necessary for respondent to acquire all the remaining part of petitioners' lot and all the remaining part of their house thereon. On 7 May 1952 the respondent in the exercise of its power of eminent domain appropriated all this remaining property of petitioners by going thereon and delivering to petitioners a copy of the letter and notice of condemnation, and erected a sign thereon reading: 'This lot appropriated for highway purposes. SH & PWC, May 7, 1952.' Petitioners continued to live in the house, until they were ejected therefrom and from the lot, under a court judgment in a proceeding brought by respondent for that purpose. In June or July 1952 respondent completely demolished the house. It would seem, though the evidence is not entirely clear, that the back portion of the house purchased by respondent in 1949 which was fifteen feet on the west side, and eleven feet on the east side, was not torn down until after 7 May 1952.

Petitioners and respondent being unable to agree upon the compensation justly owing to the petitioners for the taking under the power of eminent domain of their property by respondent, the petitioners on 24 November 1952 instituted a proceeding under the provisions of Ch. 40 of the General Statutes to recover just compensation. G.S. § 136-19; Proctor v. State Highway Commission, 230 N.C. 687, 55 S.E.2d 479. In their petition, petitioners alleged that they were entitled to recover $22,800. Respondent in its answer denied that petitioners are entitled to recover that amount, but do not allege what amount they should recover.

Commissioners appointed by the Clerk of the Superior Court of Buncombe County reported to the court in August 1953 that compensation in the amount of $4,750 ought justly to be made to petitioners. Exceptions to the report were filed by respondent in August 1953, and by petitioners in September 1953. Pursuant to notice and motion, the Clerk on 30 September 1953 overruled the exceptions, and entered judgment confirming the report of the commissioners, and ordering that petitioners have and recover from respondent the sum of $4,750. Respondent in open court gave notice of appeal from the judgment, and demanded a jury trial. On 5 October 1953 the Clerk transferred the proceeding to the civil issue docket of Buncomber County.

At the 4 October 1954 Civil Term of the Superior Court of Buncombe County, Judge Dan K. Moore at a pre-trial conference ordered this one issue to be submitted to the jury: 'What amount are petitioners entitled to recover of respondent for the land, excluding the house thereon, condemned for highway purposes on the 7th day of May 1952?' Petitioners excepted to the order, and appealed to the Supreme Court. In this Court the appeal was dismissed as premature, but without prejudice (1) to petitioners' exception to the order, or (2) to their rights in accordance with law and procedure in such cases. DeBruhl v. State Highway Commission, 241 N.C. 616, 86 S.E.2d 200.

The proceeding came on to be heard at the March Term 1956 of Buncomber County Superior Court before Judge P. C. Froneberger and a jury. At a pre-trial conference Judge Froneberger held that the issue settled by Judge Moore was correct. This issue was submitted to the jury, and it was answered by them $12,500. Judgment was entered on the verdict, and the respondent excepted, and appealed to the Supreme Court.

The appeal is reported in 245 N. C. 139, 95 S.E.2d 553, 558. Rodman, J., in concluding the opinion for the Court, said:

'Since defendant did not acquire, in 1948 and 1949, any portion of the building or land lying outside the right of way conveyed to it, it follows that plaintiffs are entitled to be fairly compensated for the part of the house as well as the land taken by the Highway Commission. The amount to be paid must be determined upon an appropriate issue submitted at a time when both plaintiffs and defendant have an opportunity to submit evidence as to the value of the property so taken.'

A new trial was ordered.

After the second appeal respondent by leave of court filed an amended answer, and an amended further answer, admitting, as held in the opinion, that it did not acquire in 1949 any portion of the house or lot lying outside the right of way it purchased from petitioners.

At the trial at the March-April 1957 Civil Term of the Buncombe County Superior Court, petitioners and respondent offered evidence tending to show the fair market value of the property when it was condemned by respondent on 7 May 1952.

Respondent assigns as error the part of the charge quoted below, which is in parentheses:

'Now the Court charges you that the respondent, that is the Highway Commission, had a right under the law to acquire this property, but in doing so the law forbids and prohibits the respondent, that is the Highway Commission, taking the property of the petitioners other than by the law of the land, and pursuant thereto the Highway Commission is forbidden to take private property except upon paying just compensation for it, that is, paying the fair market value for the property, (the theory of such a case being that the obligation of the Highway Commission is to put the owners of the property in as good position pecuniarily, that is from a monetary standpoint, as if the use of their property had not been taken, so that the petitioners, the owners of the property, are entitled to have the full equivalent of the value of such use at the time of the taking, and to have that paid contemporaneously with the taking, so that the Court charges you) that while interest on the money is not involved, and the petitioners are not entitled to recover any interest on their property, (nevertheless you should take into consideration, and the Court charges you that you will take into consideration, the intervening delay since June, 1952, when the petitioners were deprived of their property; you will consider that delay up till this time, that is the time when the award is allowed, and you will affix your award accordingly, so that the petitioners will be made whole and will be compensated fully for their property which has been taken, based upon the fair market value of that property on May 7, 1952, when it was taken, together with the delay in actually awarding that money to them).'

'Eminent domain is the power of the sovereign to take or damage private property for a public purpose on payment of just compensation.' Hedrick v. Graham, 245 N.C. 249, 96 S.E.2d 129, 134.

Article I, Section 17, of the North Carolina Constitution states that no person ought to be in any manner deprived of his property, but by the law of the land. 'The law of the land and due process of law are interchangeable terms.' Eason v. Spence, 232 N.C. 579, 61 S.E.2d 717, 721.

Practically every State in the Union, North Carolina excepted, contains an express constitutional provision against the taking of private property for public use without the payment of just compensation. Jahr, Eminent Domain, Sec. 36. However, North Carolina recognizes this fundamental right to just compensation as so grounded in natural law and justice that it is part of the fundamental law of the State, and imposes upon a governmental agency taking private property for public use a correlative duty to make just compensation to the owner of the property taken. This principle is considered in North Carolina as on integral part of 'the law of the land' within the meaning of Article I, Section 17, of the State Constitution. Sale v. State Highway Commission, 242 N.C. 612, 89 S.E.2d 290; Eller v. Board of Education, 242 N.C. 584, 89 S.E.2d 144; Proctor v. State Highway Commission, supra; Sanders v. Atlantic Coast Line R., 216 N.C. 312, 4 S.E.2d 902; Ivester v. City of Winston-Salem, 215 N.C. 1, 1 S.E.2d 88.

Under the due process clause of the 14th Amendment to the United States Constitution no State can deprive an individual of his property without just compensation. Delaware, L., & W. R. Co. v. Town of Morristown, 276 U.S. 182, 48 S.Ct. 276, 72 L.Ed. 523, 56 A.L.R. 756; Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322, 28 A.L.R. 1321. This amendment is a limitation on the powers of the States. Sale v. State Highway Commission, supra; Yarborough v. North Carolina Park Commission, 196 N.C. 284, 145 S.E. 563. It adds nothing to the rights of one citizen against another. It simply furnishes a guaranty against any encroachment by the State on the fundamental rights belonging to every citizen. United States v. Cruikshank, 92 U.S. 542, 554, 23 L.Ed. 588, 592. 'The constitutional guaranty of just compensation is not a limitation of the power to take, but only a condition of its exercise.' Long Island Water-Supply...

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