North Carolina State Highway v. Black

• Decision Date: 15 January 1954
• Docket Number: No. 681,681
• Citation: 239 N.C. 198,79 S.E.2d 778
• Court: North Carolina Supreme Court
• Parties: NORTH CAROLINA STATE HIGHWAY et al. v. BLACK et al.

Page 778

79 S.E.2d 778

239 N.C. 198

NORTH CAROLINA STATE HIGHWAY et al. v. BLACK et al.

No. 681

Supreme Court of North Carolina.

Jan. 15, 1954

R. Brooks Peters, E. W. Hooper, Raleigh, and Stoner & Wilson, Lexington, for petitioner State Highway and Public Works Commission, appellant.

DeLapp & Ward and Hubert E. Olive, Lexington, for respondents E. M. Black, Zella R. Black, and E. M. Black, administrator of Louisa J. Black, deceased, appellees.

ERVIN, Justice.

We deem it necessary to take specific note of only four of the twenty-eight exceptions of the petitioner to rulings of the trial judge admitting, excluding, striking out, or refusing to strike out, evidence

Exception 18 covers the admission of the simple statement of George Hedrick, a witness for the respondents, that he had 'a bunch of cattle * * * and five springs' on his farm, and that he 'valued' his springs. It is apparent that the receipt of this simple statement could not have influenced the jury in the decision of the case. In consequence, its admission must be adjudged harmless to the petitioner. State v. Bennett, 237 N.C. 749, 76 S.E.2d 42; State v. Glover, 208 N.C. 68, 179 S.E. 6. Exceptions 25 and 26 are addressed to the action of the trial judge in sustaining objections of the respondents to questions put to the petitioner's witness T. C. Johnson by counsel for the petitioner. These exceptions cannot be considered because the case on appeal does not show what the evidence of the witness would have been if he had been permitted to answer the questions. Francis v. Francis, 223 N.C. 401, 26 S.E.2d 907. Exception 27 likewise presents nothing for review. This exception is directed solely to the action of the trial judge in overruling an objection of the petitioner to a question asked its witness T. C. Johnson by counsel for the respondents on cross-examination. The answer of the witness was not responsive to the question. If counsel for the petitioner considered the answer objectionable, they ought to have requested the trial judge to strike it out or to instruct the jury to disregard it. Hodges v. Wilson, 165 N.C. 323, 81 S.E. 340. The rulings on evidential matters covered by the other twenty-four exceptions are free of legal inaccuracies.

This brings us to Exceptions 29, 30, and 31, which are directed to the charge.

When the recent case of Proctor v. State Highway and Public Works Commission, 230 N.C. 687, 55 S.E.2d 479, 481, was before us, we made these observations in respect to the measure and elements of compensation where part of a tract of land is condemned by the State Highway and Public Works Commission for the right of way of a public highway: 'It is a fundamental principle in this jurisdiction that the taking of private property for public use imposes upon the condemnor a correlative duty to make just compensation to the owner of the property appropriated. * * * If the State Highway and Public Works Commission and a landowner are unable to agree upon the compensation justly accruing to the latter from the taking of property by the former, the matter is to be determined once for all in a condemnation proceeding instituted by either party under the provisions of Chapter 40 of the General Statutes. G.S. § 136-19. Where only a part of a tract of land is appropriated by the State Highway and Public Works Commission for highway purposes, the measure of damages in such proceeding is the difference between the fair market value of the entire tract immediately before the taking and the fair market value of what is left immediately after the taking. The items going to make up this difference embrace compensation for the part taken and compensation for injury to the remaining portion, which is to be off-set under the terms of the controlling statute by any general and special benefits resulting to the landowner from the utilization of the property taken for a highway. G.S. § 136-19; State Highway & Public Works Commission v. Hartley, 218 N.C. 438, 11 S.E.2d 314.'

In instructing the jury in respect to the measure and elements of compensation recoverable by the respondents on account of the condemnation by the petitioner of the additional right of way easement across their farm, the trial judge employed the formula set out in the above quotation from the Proctor case.

The petitioner noted Exception 29 to the part of the formula embodied in the italicized words. The petitioner challenges the validity of this part of the formula on the twofold ground that it permits the landowner to recover excessive compensation and that it is without support in sound precedent.

The petitioner lays hold on these general arguments to support its thesis that the part of the formula under attack permits the landowner to recover excessive compensation: That there is a vast difference between an easement and a fee-simple estate in land; and that the part of the formula in question allows the landowner, who retains the fee, to recover from the State Highway and Public Works Commission, which acquires an easement, the full market value of the strip of land covered by the right of way, the same as if the fee in the strip were also condemned. The petitioner augments these general arguments with the specific assertion that the part of the formula under attack results in the award of excessive compensation to the landowner because it precludes any reduction of compensation on account of any use which the landowner might make of any portion of the strip, or on account of the possibility that the public road-governing authorities might some day abandon the use of the strip for highway purposes and thus permit all rights in the strip to revert to the then owner of the fee.

The petitioner advances these arguments to sustain its theory that the part of the formula challenged by Exception 29 is without support in sound precedent: That this part of the formula is relevant only where a portion of a tract of land is appropriated to public use in fee simple; that the suggestion that this part of the formula applies where a portion of a tract of land is subjected to an easement for public use is not to be found anywhere except in Proctor v. State Highway and Public Works Commission, supra, which involved the appropriation of an easement in a portion of a tract of land; that the court made such suggestion in the Proctor case solely upon the authority of State Highway & Public Works Commission v. Hartley, supra; and that the court fell into error in so doing because the Hartley case involved the condemnation of a portion of a tract of land for Blue Ridge Parkway purposes in fee simple and for that reason had no application to the Proctor case.

The contention of the petitioner that the part of the formula under attack permits the landowner to recover excessive compensation from the State Highway and Public Works Commission will not survive an analysis when form is laid aside in favor of substance. Whether there is any substantial difference between an easement and a fee-simple estate in land depends upon the nature and extent of the easement. Where it exercises the power of eminent domain vested in it by the statute codified as G.S. § 136-19 and in that way appropriates the land of another to public use as the right of way for a public highway, the State Highway and Public Works Commission acquires once for all the complete legal right to use the entire right of way for highway purposes as long as time shall last. From the viewpoint of practicality, the difference between an easement of this nature and extent and a fee-simple estate in the land covered by the right of way is negligible.

A review of relevant decisions demonstrates the invalidity of the contention of the petitioner that the part of the formula under attack is without support in sound precedent. The formula used by the trial judge in charging the jury on the measure and elements of compensation applicable to the easement involved in this proceeding did not have its genesis in the Proctor case. Moreover, it is not based upon a misconstruction of the Hartley case. When all is said, the formula constitutes a rule of law which has been recognized and enforced in North Carolina in cases involving the acquirement of perpetual easements by condemnation since the 'time whereof the memory of man runneth not to the contrary.'

The rule of law is simply this: Where the State, or one of its agencies or subdivisions, or a public utility takes by condemnation a perpetual easement entitling it to occupy and use the entire surface of a part of a tract of land, the landowner is entitled to recover just compensation from the condemnor for the easement taken, and just compensation in such case includes the market value of the part of the tract covered by the easement and the damage done to the remainder of the tract by taking of the easement, subject to such deduction or set-off for benefits, special or general, resulting to the remainder of the tract from the taking of the easement as the statute authorizing the taking may specify. Bailey v. State Highway and Public Works Commission, 214 N.C. 278, 199 S.E. 25; Nantahala Power & Light Co. v. Rogers, 207 N.C. 751, 178 S.E. 575; Carolina Power & Light Co. v. Reeves, 198 N.C. 404, 151 S.E. 871; Moses v. Town of Morganton, 195 N.C. 92, 141 S.E. 484; Western Carolina Power Co. v. Hayes, 193 N.C. 104, 136 S.E. 353; Stamey v. Town of Burnsville, 189 N.C. 39, 126 S.E. 103; Caldwell Power Co. v. Russell, 188 N.C. 725, 125 S.E. 481; Campbell v. Board of Road Commissioners, 173 N.C. 500, 92 S.E. 323; McMahan v. Black Mountain R. Co., 170 N.C. 456, 87 S.E. 237, 238; Raleigh, C. & S.R. Co. v. Mecklenburg Manufacturing Co., 169 N.C. 156, 85 S.E. 390, L.R.A.1916A, 1090, and Id., 166 N.C. 168, 82 S.E. 5, L.R.A.1916A, 1079; Lloyd v. Town of Venable, 168 N.C. 531, 84 S.E. 855; Carolina & G. R. R. Co. v. Armfield, 167 N.C. 464, 83 S.E. 809; Virginia & C. S. R. Co. v. McLean, 158 N.C. 498, ...