John R. Taylor Co. v. North Carolina State Highway and Public Works Commission

• Decision Date: 12 June 1959
• Docket Number: No. 610,610
• Citation: 250 N.C. 533,109 S.E.2d 243
• Court: North Carolina Supreme Court
• Parties: JOHN R. TAYLOR COMPANY, Inc., Petitioner, v. NORTH CAROLINA STATE HIGHWAY AND PUBLIC WORKS COMMISSION Respondent.

Page 243

109 S.E.2d 243

250 N.C. 533

JOHN R. TAYLOR COMPANY, Inc., Petitioner, v. NORTH CAROLINA STATE HIGHWAY AND PUBLIC WORKS COMMISSION Respondent.

No. 610

Supreme Court of North Carolina.

June 12, 1959

Hoyle & Hoyle, by J. Sam Johnson, Jr., Greensboro, for petitioner, appellant.

Malcolm B. Seawell, Atty. Gen., Kenneth Wooten, Jr., Asst. Atty. Gen., H. Horton Rountree, Trial Attorney, Raleigh, and

Falk, Carruthers & Roth, by Joseph T. Carruthers, Jr., Greensboro, for respondent, appellee.

PARKER, Justice.

All petitioner's assignments of error, except formal ones and one to a ruling of the court as to the date of the taking of the land by respondent, relate to the charge of the court to the jury.

Petitioner's assignment of error Number 2 is to this part of the charge: 'Market value of property is the price which it would bring when it is offered for sale by one who desires to sell but is not obliged to sell it and is bought by one who is under no necessity of having it.' Petitioner contends that the learned judge omitted an essential element of market value in that he should have charged in part as follows: Is bought by one who desires but is not required to buy it. In support of its contention it cites Moses v. Town of Morganton, 195 N.C. 92, 141 S.E. 484, 487, where this language is used: 'The principle of damages is laid down thus in 10 R.C.L., § 112: 'When a parcel of land is taken by eminent domain, the measure of compensation to be awarded the owner is the price which would be agreed upon at a voluntary sale between an owner willing to sell and a purchaser willing to buy; in other words the test is the fair market value of the land.' ' The identical language quoted from R.C.L. now appears in 18 Am.Jur., Eminent Domain, § 242. It also cites to the same effect 29 C.J.S. Eminent Domain § 137, p. 974; 18 Am.Jur., Eminent Domain, § 242; Talbot v. City of Norfolk, 158 Va. 387, 163 S.E. 100. Petitioner could have cited to the same effect Gallimore v. State Highway and Public Works Commission, 241 N.C. 350, 85 S.E.2d 392.

The above language of the trial judge assigned as error is taken practically verbatim from Nantahala Power & Light Co. v. Moss, 220 N.C. 200, 17 S.E.2d 10. Similar language is used in Brown v. W. T. Weaver Power Co., 140 N.C. 333, 52 S.E. 954, 3 L.R.A.,N.S., 912; Carolina & Y. R. R. R. v. Armfield, 167 N.C. 464, 83 S.E. 809; Commander v. Smith, 192 N.C. 159, 134 S.E. 412.

Further on in the charge the judge instructed the jury as follows: 'The value of the property is the yardstick by which compensation for the taking of land or any interest therein is to be measured. And the market value of property is the price which it will bring when it is offered for sale by one who desires but is not obliged to sell and is bought by one who is under no necessity of having it. In estimating its value, all of the capabilities of the property and all the uses to which it may be applied or for which it is adapted which affect its value in the market are to be considered by the jury and not merely the condition it is in at the time of the taking and the use to which it was then applied by the owner. The measure of compensation is the sum which would be arrived at as a result of fair negotiations in a private transaction by an owner willing to sell and a purchaser willing to buy after due consideration of all evidence reasonably affecting value.' Petitioner's assignments of error Numbers 7 and 8 relate to the repetition of the definition of market value in the above excerpt from the charge, and to its last sentence.

The last sentence in the above excerpt is in accord with the quotation from 10 R.C.L., sec. 112--now 18 Am.Jur., Eminent Domain, § 242--in Moses v. Town of Morganton, supra. In 29 C.J.S. Eminent Domain § 137, p. 974, cited by petitioner, it is said: 'The market value of property injured or taken for public use is commonly defined as the price it will bring when offered for sale by one who desires, but is not required, to sell, and is sought by one who desires, but is not required, to buy, after due consideration of all the elements reasonably affecting value.'

Reading the charge as a whole, and not in detached fragments (Vincent v. Woody, 238 N.C. 118, 76 S.E.2d 356), it leaves us with the opinion that the jury must have understood that market value must be determined by what the land taken by respondent would bring if sold by a willing seller, not required to sell it, to a wanting buyer, not required to buy it, after due consideration of all the evidence reasonably affecting market value. Petitioner's assignments of error Numbers 2, 7 and 8 are overruled.

After the jury was impaneled, and before evidence was introduced, the following stipulation of the parties was dictated in the Record in the jury's presence: 'Petitioner was on December 30, 1955, the owner of a 93.29-acre (sic) tract as alleged in the petition, and that on that date the respondent entered on the land to construct a highway, and commenced work with machinery.' Whereupon, the court held as a matter of law that 30 December 1955 was the date of taking. Petitioner excepted to this ruling by the court, and assigns it as error Number 4, but offered no evidence in respect to the date of taking. The only evidence as to the date of taking appears in the stipulation, except as appears in the testimony of John R. Taylor hereinafter set forth. The petition does not allege the date of taking. The only reference to the date of taking in the pleadings is in the further answer as follows: 'That said project was begun on September 16, 1955, and has not been completed as of the date of the filing of this answer.'

Petitioner's assignment of error Number 3 is to the charge of the court to this effect: If the jury believed all the evidence in the proceeding, the day of taking was 30 December 1955, and that the market value of the land taken was to be determined as of that date.

Petitioner contends that it had no notice of what land respondent was taking and what parts of the highway would be a nonaccess highway, until respondent filed its answer on 13 September 1957, and therefore the date of taking was 13 September 1957. The date of filing of the answer does not appear in the Record, but apparently it was filed about 13 September 1957, because on 15 August 1957, respondent was allowed by the Clerk of the Superior Court 30 days within which to file answer or otherwise plead. Petitioner further contends that the difference in time between 30 December 1955 and 13 September 1957 was material, because on the prior date, according to appellant's evidence, there had been no change in the land and its use from an abandoned dairy farm status, and on the later date construction had begun on a residential subdivision and extensive plans had been laid for the development of valuable industrial property. (Petitioner's...