Department of Transp. v. Rowe, COA97-1470.

CourtCourt of Appeal of North Carolina (US)
Citation531 S.E.2d 836,138 NC App. 329
Decision Date20 June 2000
Docket NumberNo. COA97-1470.,COA97-1470.
PartiesDEPARTMENT OF TRANSPORTATION, Plaintiff, v. Joe C. ROWE and wife, Sharon B. Rowe; Howard L. Pruitt, Jr., and wife, Georgia Pruitt; Robert W. Adams, Trustee; Aline D. Bowman; Frances Bowman Bollinger; Lois Bowman Moose; Dorothy Bowman Abernethy and husband, Kenneth H. Abernethy; Martha Bowman Caudill and husband, Jack Caudill; Appalachian Outdoor Advertising Co., Inc. (formerly Appalachian Poster Advertising Company, Inc.), Lessee; and Florence Bowman Bolick, Defendants.

531 S.E.2d 836
138 NC App.
329

DEPARTMENT OF TRANSPORTATION, Plaintiff,
v.
Joe C. ROWE and wife, Sharon B. Rowe; Howard L. Pruitt, Jr., and wife, Georgia Pruitt; Robert W. Adams, Trustee; Aline D. Bowman; Frances Bowman Bollinger; Lois Bowman Moose; Dorothy Bowman Abernethy and husband, Kenneth H. Abernethy; Martha Bowman Caudill and husband, Jack Caudill; Appalachian Outdoor Advertising Co., Inc. (formerly Appalachian Poster Advertising Company, Inc.), Lessee; and Florence Bowman Bolick, Defendants

No. COA97-1470.

Court of Appeals of North Carolina.

June 20, 2000.


531 S.E.2d 838
Attorney General Michael F. Easley, by Assistant Attorney General J. Bruce McKinney, for plaintiff-appellee

Lewis & Daggett, P.A., by Michael J. Lewis; and Bell, Davis & Pitt, PA, by Stephen M. Russell, Winston-Salem, for defendants-appellants.

WYNN, Judge.

On 26 June 1995, the North Carolina Department of Transportation brought a declaration of taking action in Superior Court, Catawba County condemning 11.411 acres of the 18.123 acres of land belonging to Joe C. Rowe and his wife, Sharon B. Rowe, and Howard L. Pruitt, Jr., and his wife, Georgia M. Pruitt. However, because the Department of Transportation concluded that the benefits to the defendants' remaining 6.712 acres of property outweighed any loss to the defendants due to the taking, it did not make a deposit of estimated compensation for the 11.411 acres of taken property.

The defendants answered alleging that the "special or general benefits" provision of the condemnation statute, N.C. Gen.Stat. § 136-112(1) (1999), denied them equal protection in violation of the North Carolina and United States Constitutions. The defendants also challenged the Department of Transportation's claim that all of the defendants' remaining tracts of land should be considered in comparing the benefits of the taking to the defendants' resulting loss.

The trial court conducted a pretrial hearing under N.C. Gen.Stat. § 136-108 to settle issues other than the amount of damages. The evidence showed that after the taking the defendants were left with four small tracts of land identified as tracts A, B, C, and D, totaling 6.712 acres. Before the taking, tract A connected to the easternmost part of the property taken by the Department of Transportation and tract B connected at the westernmost part of the taken property. A 70 foot strip of land owned by the City of Hickory separated tract B from tracts C and D. A 60 foot strip of land owned by the City of Hickory separated tracts C and D from each other. The evidence showed that the City of Hickory intended to construct streets on the 60 and 70 foot strips; but, no streets had been constructed on the strips as of the date of the taking.

The trial court determined that the defendants' four remaining tracts had "physical unity" with the condemned property and were therefore, affected by the taking. The trial court also rejected the defendants' claim that the condemnation statute, N.C.G.S. § 136-112(1), was unconstitutional.

Following the preliminary hearing, the matter of just compensation was tried before a jury in the Superior Court, Catawba County. At trial, the trial court instructed the jury that it could consider any special and general benefits to the defendants' property which was not taken, including tracts C and D. The jury returned a verdict concluding that the defendants were not entitled to any compensation for the involuntary taking of their 11.411 acres because the increased value of the remaining four tracts offset the loss of the taken property.

From the trial court's judgment consistent with the jury's verdict, the defendants appeal contending that: (I) the trial court erred in including tracts C and D in the area affected, thereby treating all of the defendants' property as a "unified tract" and (II) N.C.G.S. § 136-112(1), which allows a deduction from just compensation for "special or general benefits" resulting from the taking, is unconstitutional on its face and as applied to these defendants.

I. AREA AFFECTED BY THE TAKING

The defendants first contend that the trial court erred in including tracts C and D in the area affected by the condemnation proceeding. In support, they argue that tracts C and D have neither physical unity nor unity of use with the land taken by the Department of Transportation.

531 S.E.2d 839
In most cases, the landowner is the party who seeks to add additional property to the area affected by a condemnation taking of his property in an attempt to increase his damages. See e.g., City of Winston-Salem v. Yarbrough, 117 N.C.App. 340, 451 S.E.2d 358 (1994). But in this case, it is the condemning authority—the Department of Transportation —which seeks to: (1) include tracts C and D in the area affected by the taking and (2) show that tracts C and D are benefitted by the taking to the extent that the Department of Transportation may avoid paying the landowner defendants any compensation whatsoever for the condemned 11.411 acres

The determination of whether there is a unity of lands in a condemnation proceeding must be based on the facts of each case. The factors which are usually emphasized in such a determination include "unity of ownership, physical unity and unity of use." Barnes v. North Carolina State Highway Comm'n, 250 N.C. 378, 384, 109 S.E.2d 219, 224-25 (1959). Although unity of use is given great weight, the tracts claimed as a single tract "must be owned by the same party or parties." Id. at 384, 109 S.E.2d at 225.

In this case, the parties stipulated that there was unity of ownership as to all tracts, including tracts C and D. The parties also agreed that a strip of land owned by the City of Hickory separates tracts C and D and that another strip of land owned by the City of Hickory separates tracts C and B.

In general, parcels of land must be contiguous to constitute a single tract for the purpose of determining severance damages and benefits. Id. "Contiguous" means "[t]ouching at a point or along a boundary." Black's Law Dictionary, p. 315 (7th Ed.1999). "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." Barnes, 250 N.C. at 385, 109 S.E.2d at 225.

It is generally held that parcels of land separated by an established city street, in the use by the public, are separate and independent as a matter of law. `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 and streets 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 wholly contiguous and so as a single parcel or tract.' 6 A.L.R.2d 1200, sec. 2.

Barnes, 250 N.C. at 385, 109 S.E.2d at 225 (citations omitted).

In this case, the defendants did not retain any interest in the strips of land deeded to the City of Hickory for streets, thereby tending to support a finding that there was no physical unity between tracts C and D and the tracts identified as A and B. Even assuming there was physical unity between the aforementioned tracts, lands will not normally be considered to constitute a single tract for the purpose of determining severance damages and benefits unless there is unity of use.

In Barnes, our Supreme Court set out the common law test for unity of use holding that:

`there must be a connection or relation of adaption, convenience, and actual and permanent use, as to make the enjoyment of the parcel taken reasonable 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.' The unifying use must be a present use. A mere intended use cannot be given effect.

Id. at 385, 109 S.E.2d at 224 (citation omitted).

531 S.E.2d 840
Applying this rule in City of Winston-Salem v. Tickle, 53 N.C.App. 516, 281 S.E.2d 667 (1981), disc. review denied, 304 N.C. 724, 288 S.E.2d 808 (1982), our Court held that all of the tracts making up a family owned cattle farm was property affected by the taking of a portion of the property although the farm was divided by two roads and a railway. This Court found "that with a single exception the property was devoted to the single use of cattle farming." Id. at 524-25, 281 S.E.2d at 672. But our Court in Tickle did exclude one of the parcels from the area affected because that parcel was not used for farming. See id. at 527, 281 S.E.2d at 674

Our General Assembly codified the Barnes rule in 1981 providing that "all contiguous tracts of land that are in the same ownership and are being used as an integrated economic unit shall be treated as if the combined tracts constitute a single tract." N.C. Gen.Stat. § 40A-67 (emphasis added); see also Department of Transportation v. Nelson Co., 127 N.C.App. 365, 368, 489 S.E.2d 449, 451 (1997) (holding that a partially completed office park being constructed as part of a master development plan met the unity of use requirement). It follows that where the uses of the tracts in question are independent of the portion which is taken rather than a part of the integrated economic unit, the...

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