City of Winston-Salem v. Tickle
| Decision Date | 01 September 1981 |
| Docket Number | No. 8121SC55,WINSTON-SALEM,8121SC55 |
| Court | North Carolina Court of Appeals |
| Parties | CITY OFv. Katie S. Ziglar TICKLE (Widow), James N. Ziglar, Jr., and wife, Barbara C. Ziglar. |
Womble, Carlyle, Sandridge & Rice by Roddey M. Ligon, Jr., Winston-Salem, and City Attys. Ronald G. Seeber and Ralph D. Karpinos, Winston-Salem, for plaintiff-appellant.
Petree, Stockton, Robinson, Vaughn, Glaze & Maready by Dudley Humphrey, F. Joseph Treacy, Jr. and Gray Robinson, Winston-Salem, for defendants-appellees.
The issue in this case is which of the two measures of damages allowed in G.S. 136-112 should be applied in fixing compensation for the taking of Parcel A. The statute provides:
"The following shall be the measure of damages to be followed by the commissioners, jury or judge who determines the issue of damages:
(1) Where only a part of a tract is taken, the measure of damages for said taking shall be the difference between the fair market value of the entire tract immediately prior to said taking and the fair market value of the remainder immediately after said taking, with consideration being given to any special or general benefits resulting from the utilization of the part taken for highway purposes.
In a case involving a landfill, which would not be expected to benefit surrounding property, it would be to the landowner's advantage to have damages assessed under G.S. 136-112(1) in order to include the diminution in value to surrounding land in the computation of damages in addition to the value of the land actually taken. The issue for the trial court was whether any or all of the previously described parcels constituted a single unified tract for purposes of assessing damages. Plaintiff assigns error to the
court's ruling that the 156 acres constituted a single, unified family farm at the time of the taking.
THE TEST FOR UNITY OF LANDS
The principles which must guide our decision in this case are discussed fully in the decision of Barnes v. Highway Commission, 250 N.C. 378, 109 S.E.2d 219 (1959) (Moore, J.):
"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. 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. 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. Railroad Co., 78 Ill. 530 (1875); Wellington v. 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 physical 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, 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 For a full discussion, exhaustive annotation and citations of authority with respect to the principles of law set out in the four preceding paragraphs, see 6 A.L.R.2d 1200-1214, and Nichols on Eminent Domain (3rd Edition), sections 14.3, 14.31 and 14.4, Vol. 4, pp. 426-445."
Railway Co. (1887), 36 Minn. 343, 31 N.W. 217. 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. [53 N.C.App. 524] 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. 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, sec. 270, p. 910.
Id. 250 N.C. at 384-86, 109 S.E.2d at 224-26.
Since Barnes characterizes use as the most important of the factors to be considered in determining the unity of lands, we first consider the use to which the 156 acres were being put at the time of the taking. The record reveals that all of the property, except for Parcel D, was being used together as a family farm. Plaintiff argues that the parcels were being devoted to at least five separate uses: "A portion was used for raising cattle and hay, a portion was used for the single-family residence of Dr. Ziglar and his wife, a portion was used as the single-family original farm residence of Mrs. Tickle, a portion was used as multi-family rental property and a wood lot, and a portion was not being used for any present purpose." Our examination of the record and exhibits in this case satisfies us that with a single exception the property was devoted to the single use of cattle farming. The fact that all of the land was not cleared does not indicate to us that it was not farmland. Dr. Ziglar's testimony made it clear that somewhere in every parcel (except Parcel D) some aspect of the farm operation was being carried out. True, not every parcel was presently being used as grazing land. Some was being cultivated to produce hay to eventually feed to the cattle. Some was being cleared of its pulpwood or being seeded so that grass could be produced thereon for grazing or haying. Portions of some of the parcels had not yet been cleared at all, but Dr. Ziglar's testimony made it clear that the work of developing the land was an ongoing process already in progress when Parcel A was taken. The only portions of the property not in grassland (or in the process of being transformed into grassland) were the portions devoted to his residence, his mother's residence, the apartment house lot, the portions of certain tracts which he had not yet had opportunity to clear, and areas that were not "level enough to negotiate." We hold that all these uses (with the exception of the apartment house) are consistent with land devoted to the operation of a family cattle farm, and note in passing that it would be difficult indeed to find a farm in North Carolina which did not encompass at least some wooded area.
The use of part of two of the tracts (Parcels B and C) for residential...
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