North Carolina Dept. of Transp. v. Kaplan

• Decision Date: 06 May 1986
• Docket Number: No. 8521SC1039,8521SC1039
• Citation: 80 N.C.App. 401,343 S.E.2d 182
• Court: North Carolina Court of Appeals
• Parties: NORTH CAROLINA DEPARTMENT OF TRANSPORTATION v. Leon KAPLAN and wife, Renee Myers Kaplan; Frank M. Bell, Jr., Trustee, First Federal Savings and Loan Association; Kaplan's School Supply Corporation, Lessee.

Page 182

343 S.E.2d 182

80 N.C.App. 401

NORTH CAROLINA DEPARTMENT OF TRANSPORTATION v. Leon KAPLAN and wife, Renee Myers Kaplan; Frank M. Bell,

Jr., Trustee, First Federal Savings and Loan

Association; Kaplan's School Supply

Corporation, Lessee.

No. 8521SC1039.

Court of Appeals of North Carolina.

May 6, 1986.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. James B. Richmond, for plaintiff-appellant.

Petree, Stockton, Robinson, Vaughn, Glaze & Maready by F. Treacy, Jr. and Richard J. Keshian, Winston-Salem, for Leon Kaplan and wife, Renee Myers Kaplan, defendants-appellees.

House, Blanco & Osborn by John S. Harrison, Winston-Salem, for Kaplan School Supply Corp., defendant-appellee.

MARTIN, Judge.

Plaintiff's sole contention on appeal is that the trial court erred in holding that defendant's real property, though physically unified and unified in ownership, consisted of two separate and distinct tracts to be considered separately for the purpose of determining damages in this condemnation action. We affirm the order of the trial court.

The trial court made the following findings of fact:

2. The parties have entered into a number of stipulated facts which are contained in a stipulation of the parties filed with the court and incorporated by reference into this order. The stipulations are as follows:

a. The date of taking in this action is November 26, 1984.

b. The deed attached to the stipulation as Exhibit "B", dated June 10, 1983, recorded in Book 1400 at Page 863 of the Forsyth County Registry, ("smaller tract") conveying a certain tract of land to Leon Kaplan and wife, Renee Myers Kaplan is a genuine copy of such deed.

c. The deed attached to the stipulation as Exhibit "A", dated July 10, 1972 recorded in Book 1035 at Page 760 of the Forsyth County Registry ("larger tract") conveying a certain tract of land to Leon Kaplan and wife, Renee Myers Kaplan is a genuine copy of such deed.

d. The plaintiff and the defendants agree that the only two tracts of land affected by the taking in this cause are the two tracts described in the deeds attached to the stipulation as Exhibits "A" and "B". The defendants contend that these two tracts of land are, for purposes of assessing damages under Chapter 136 of the North Carolina General Statutes, two separate and distinct tracts of land. On the other hand, the plaintiff contends that, for purposes of assessing damages under Chapter 136 of the North Carolina General Statutes, the two tracts of land described in Exhibits "A" and "B" attached hereto are in fact one unified tract of land.

e. As of November 26, 1984 (the date of taking), the smaller tract has been vacant.

f. As of November 26, 1984 (the date of taking), the larger tract was in full use with the building situated thereon rented to Kaplan's School Supply, Incorporated. The building is a 32,000 square foot brick and masonry building.

g. As of November 26, 1984, and the day before, Leon Kaplan and Renee Myers Kaplan owned the larger tract as tenants by the entirety with a leasehold interest in Kaplan's School Supply, Incorporated. Leon Kaplan and wife, Renee Myers Kaplan, owned the smaller tract as tenants by the entirety.

h. The larger tract and the smaller tract are physically contiguous.

i. On the date of taking, the larger tract was zoned B-3 and the applicable Table of Permissible Uses in such a zone is marked as Defendants' Exhibit "E" and incorporated herein by reference as if fully set forth.

j. On the date of taking, the smaller tract was zoned B-3 and the applicable Tables of Permissible Uses in such a zone is marked as defendants' Exhibit "E" and incorporated herein as if fully set forth.

3. The lease agreement dated February 1, 1977, marked as defendants' Exhibit "C" and memorandum of this lease marked as defendants' Exhibit "D" were in full force and effect immediately prior to the date of taking, November 26, 1984.

4. The lease agreement dated February 1, 1977 marked as defendants' Exhibit "C" applied to the larger tract and in no way concerned the smaller tract of property.

5. On the date of taking, November 26, 1984, the smaller tract of property owned by Leon Kaplan and wife, Renee Myers Kaplan, was not being used in conjunction with the larger tract owned by Leon Kaplan and wife, Renee Myers Kaplan, and leased to Kaplan's School Supply, Inc.

6. Kaplan's School Supply, Inc. had no interest or estate in the smaller tract on or before the date of taking.

7. On the date of taking, the use to which the larger tract was being put was the operation of a school supply business by the lessee, Kaplan's School Supply, Inc. The larger tract was generating income to the owners Leon Kaplan and wife, Renee Myers Kaplan by way of rents.

8. As of the date of taking, the larger tract had uncontrolled access to Kirk Road.

9. As of the date of taking, both the smaller tract and larger tract had uncontrolled access to Jonestown Road.

10. After the taking, the larger tract had no direct access to Jonestown Road and access to Kirk Road was limited by the closing of Kirk Road.

11. After the taking, Kirk Road, the northern boundary of the larger tract, will be closed at the entrance to Jonestown Road, and Kirk Road will be reunited with Kester Mill Road as depicted on the construction plan marked as defendants' Exhibit "F".

12. On the date of taking there was not such a connection or relation of adaptation, convenience and actual and permanent use as to make the enjoyment of the smaller tract reasonably and substantially necessary to the enjoyment of the larger tract, in the most advantageous and profitable manner for which they were used.

Based on these findings, the trial court concluded:

1. As to the smaller tract and larger tract, there existed physical unity on the date of taking.

2. When considered at the time of or immediately after the taking when the lease between Leon Kaplan and wife, Renee Myers Kaplan, and Kaplan's School Supply, Inc. technically terminated, there was unity of ownership in the larger and smaller tracts.

3. On November 26, 1984, the date of taking, there existed no unity of use between the larger tract and the smaller tract.

4. On the date of taking, the smaller tract and larger tract were two separate and distinct tracts which must be considered separately in assessing damages.

Plaintiff excepts and assigns error to the trial court's Finding of Fact No. 12 and to its Conclusions of Law Nos. 3 and 4. Plaintiff contends that the court failed to apply the correct principles of law in arriving at its finding and conclusions that defendants' property was not unified in use.

G.S. 136-112(1) provides that where only a portion of a tract of land is taken for highway purposes, the measure of damages to which the landowner is entitled is the difference between the fair market value of the entire tract immediately before the taking and the fair market value of the remaining portion immediately after the taking. Where portions of more than one parcel of land are taken, a question frequently arises as to whether the parcels are to be treated as one tract or as separate tracts for the purpose of assessing damages. In such cases, our Supreme Court has established unity of ownership, physical unity, and unity of use as factors to be considered in determining the unity of lands for the purpose of...