State Highway Commission v. Mode, 68SC60

• Decision Date: 09 October 1968
• Docket Number: No. 68SC60,68SC60
• Citation: 163 S.E.2d 429,2 N.C.App. 464
• Court: North Carolina Court of Appeals
• Parties: STATE HIGHWAY COMMISSION, v. Thomas MODE and wife, Fannie Mode.

Page 429

163 S.E.2d 429

2 N.C.App. 464

STATE HIGHWAY COMMISSION, v. Thomas MODE and wife, Fannie Mode.

No. 68SC60.

Court of Appeals of North Carolina.

Oct. 9, 1968.

T. W. Bruton, Atty. Gen., by Harrison Lewis, Deputy Atty. Gen., for Highway Commission, plaintiff appellant.

Hamrick & Hamrick, by J. Nat Hamrick, Rutherfordton, for defendant appellees.

BROCK, Judge.

This case was first argued in this Court on 27 Mrch 1968. Thereafter on 23 May 1968, and pursuant to the provisions of Rule 31 of the Rules of Practice in this Court, it was ordered by the Court that the case be set for reargument during the week of 2 September 1968 upon the following questions:

'(1) Under G.S. Chaps. 40 and 136, is it necessary for the condemnor to make a good faith attempt to purchase the subject property; and to allege in the complaint, or the declaration of taking, the prior good faith attempt in order for a complaint in a condemnation proceeding to state a cause of action?

'(2) If so, does the failure to so allege constitute a jurisdictional defect so as to require the court Ex mero motu to take notice and dismiss; or may the defect be cured by amendment, if allowed in the discretion of the court?'

The questions which were before the Court on reargument during the week of 2 September 1968 have been exhaustively discussed in an opinion by Mallard, C.J., in State Highway Commission v. Matthis, 2 N.C.App. 233, 163 S.E.2d 35, filed 18 September 1968.

For the reasons stated in the opinion by Mallard, C.J., we hold that the complaint in this case alleges a defective statement of a good cause of action, but because of the admissions in the answer, it cannot now be attacked by the defendants herein, or anyone else.

We proceed now to a consideration of the questions raised upon the appeal which was argued before us upon the original arguments on 27 March 1968.

Neither party has cited, and our research has not disclosed, a case in North Carolina which determines the question of whether mineral, ore, sand, gravel, or other deposits are to be considered in the valuation of land in condemnation proceedings, where such deposit was not disclosed until discovery by the condemnor in construction of the project but before an adjudication of just compensation. However, the general rule that prevails in this state would seem to encompass the right of the landowner to have his property valued with consideration given to a deposit of this nature. In holding that fair market value of land was not limited to its value as undeveloped land, our Supreme Court in Barnes v. Highway Commission, 250 N.C. 378, 109 S.E.2d 219, stated the rule as follows: 'In estimating the fair market value of land before and after the appropriation of a portion thereof for public use, all 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. In short, everything which affects the value of the property taken in relation to the entire property affected must be considered, for compensation must be full and complete. But all the factors affecting value must be considered only with respect to their effect upon the fair market value of the property, as of the time immediately before and immediately after the taking in the then state of the property as a whole.' It must be noted however that the last sentence in the above quoted rule constitutes a limitation upon the valuation of 'capabilities' of the property, and this limitation is further clarified in Barnes as follows: 'It is proper to show that a particular tract of land is suitable and available for division into lots and is valuable for that purpose, but it is not proper to show the number and value of lots as separated parcels in an imaginary subdivision thereof. In other words, it is not proper for the jury in these cases to consider an undeveloped tract of land as though a subdivision thereon is an accomplished fact. Such undeveloped property may not be valued on a per lot basis. The cost factor is too speculative.'

In 27 Am.Jur.2d, Eminent Domain, § 290, p. 93, the following is stated: 'The fact that it is not known at the time of the taking that the land contains valuable minerals does not prevent the owner from recovering the value of the land as mineral land.'

'The rule ordinarily applicable * * * is that in determining the compensation in eminent domain proceedings the existence of valuable mineral deposits in the land taken constitutes an element which may be considered insofar as it influences the market value of the land. The general rule has been applied indiscriminately to all forms of mineral deposits, such as coal, ore, gold, fire clay, sand and gravel and stone or limestone. (H)owever, * * * the award may not be reached by separately evaluating the land and the deposits, since the latter, being only one element among many in determining the market value of the land, cannot be considered as an independent factor the value of which is to be added to the value of the land.' 27 Am.Jur.2d, Eminent Domain, § 290, p. 91. See also, 29A C.J.S. Eminent Domain § 174, p. 735.

The general rule, as gathered from other jurisdictions and quoted above, with respect to the existence of mineral deposits in land taken by condemnation, is consistent with the holdings of our Supreme Court. We hold therefore that defendants were entitled to have the existence of the stone deposit on their land considered by the jury insofar as it influenced the fair market value of the land at the time of the taking.

The Highway Commission assigns as error the admission of testimony from the landowners' witness, Bruce Hoyle, as follows:

'MR. HAMRICK: Mr. Hoyle, do you have an opinion satisfactory to yourself as to the fair market value of the merchantable stone in the ground of the Thomas Mode property on January 3, 1966, per ton?

'MR. HUDSON: Objection.

'THE COURT: Objection overruled, if he knows of his own knowledge. EXCEPTION NO. 7.

'Answer: 5cents a ton.'

Previously, the landowners' witness, David Dunn, had been allowed to testify as follows:

'MR. HAMRICK: Let me ask him this. Do you have an opinion satisfactory to yourself, from your examination of the right of way of the road and your examination of the stone, how many tons of quartz monsonite stone could be removed from a 100 foot quarry?

'MR. HUDSON: Objection.

'THE COURT: Objection overruled.

'Answer: Yes. To a depth of 100 feet beneath the right of way of the highway, I calculate a quantity of stone at 2,458,000 tons. I made an exhibit showing the cut and showing the type of stone I found in the right of way.'

It is quite obvious that the effect of this testimony was to separately value the stone deposit...