Gallimore v. STATE HIGHWAY AND PUBLIC WORKS COM'N , 241 N.C. 350 ( 1955 )

85 S.E.2d 392 (1955) 241 N.C. 350

L. B. GALLIMORE, W. F. Page, D. R. Saunders, T. C. Vaughn, H. B. Barger, O. L. Ruth, C. A. Brown, R. I. McCluskey and T. R. York, Trustees of the North Carolina Conference of the Pilgrim Holiness Church of America,
v.
STATE HIGHWAY AND PUBLIC WORKS COMMISSION (of the State of North Carolina).

No. 740.

Supreme Court of North Carolina.

January 14, 1955.

York & Boyd, Greensboro, for petitioners, appellants.

R. Brooks Peters, Raleigh, and Blackwell, Blackwell & Canady, Winston-Salem, for State Highway and Public Works Commission, respondent, appellant and appellee.

BOBBITT, Justice.

Does the clerk have jurisdiction to rule on a motion to strike interposed under G.S. § 1-153? Disposition of these appeals does not require an answer to this question. However, we note that this statute provides: "Any such motion to strike any matter out of any pleading may, upon ten days' notice to the adverse party, be heard out of term by the resident judge of the district or by any judge regularly assigned to hold the courts of the district." Too, the prejudicial effect of objectionable allegations in a pleading ordinarily arises from the reading of such allegations to the jury even though evidence in support thereof is not admitted. Privette v. Privette, 230 N.C. 52, 51 S.E.2d 925; Carolina Power & Light Co. v. Bowman, 231 N.C. 332, 56 S.E.2d 602. Hence, the prejudicial effect of objectionable allegations in a petition filed under G.S. § 40-12 ordinarily would not arise unless and until the proceeding comes to the superior court for trial de novo by a jury on the issue of damages.

As stated by Ervin, J., in Hinson v. Britt, 232 N.C. 379, 61 S.E.2d 185, 187: "This Court does not correct errors of the Superior Court unless such errors prejudicially affect the substantial rights of the party appealing. Hence, the denying or overruling of a motion to strike matter from a pleading under the provisions of G.S. § 1-153 is not ground for reversal unless the record affirmatively reveals these two things: (1) That the matter is irrelevant or redundant; and (2) that its retention in the pleading will cause harm or injustice to the moving party." Conversely, if a motion to strike irrelevant or redundant matter from a pleading is erroneously allowed the ruling will not be disturbed unless it is made to appear that the pleader will be prejudiced on account thereof.

And it has been held consistently that, upon appeal from a ruling on a motion to strike, this Court will not undertake to chart the course of the trial in advance of the hearing. Daniel v. Gardner, 240 N.C. 249, 81 S.E.2d 660, and cases cited therein.

The respondent brought no condemnation proceeding. Instead, as authorized by statute, it seized and appropriated a portion of petitioners' property for public use for highway purposes. Unable to agree as to what constituted just compensation, petitioners seek to have the amount of their recovery determined by special proceeding in accordance with G.S. § 136-19. Moore v. Clark, 235 N.C. 364, 70 S.E.2d 182.

The procedure in such special proceeding is that prescribed in G.S. Ch. 40, entitled, "Eminent Domain." G.S. § 40-12 specifies the necessary allegations of such petition. In brief, these consist of allegations that petitioners own the property appropriated and pray that commissioners be appointed to ascertain and determine the amount of compensation "which ought justly to be made". G.S. § 40-17. The respondent, by answer, may challenge the allegations of petitioners on which they seek to recover compensation. G.S. § 40-16. These statutes do not seem to contemplate that petitioners allege with particularity the various respects in which their property has been adversely affected by the new highway. There is no requirement that petitioners do so.

Upon confirmation of the report of the commissioners, exceptions thereto may be entered; and, upon appeal, the issue as to the amount of damages or compensation is for determination de novo by a jury at term time. G.S. §§ 40-19, 40-20; Proctor v. Highway & Public Works Commission, 230 N.C. 687, 55 S.E.2d 479.

Just compensation, to which the landowner is entitled, is the difference between the fair market value of the property as a whole immediately before and immediately after the appropriation of a portion thereof for highway purposes. Abernathy v. South & W. R. Co., 150 N.C. 97, 63 S.E. 180; Nantahala Power & Light Co. v. Carringer, 220 N.C. 57, 16 S.E.2d 453. Where the appropriation is for highway purposes, the general and special benefits, if any, accruing to the landowner from the location and construction of the new highway, must be taken into consideration. G.S. § 136-19; State Highway & Public Works Commission v. Hartley, 218 N.C. 438, 11 S.E.2d 314; Proctor v. Highway Commission, supra. In short, damages are to be awarded to compensate for the loss sustained by the landowner. Nantahala Power & Light Co. v. Moss, 220 N.C. 200, 17 S.E.2d 10. In Abernathy v. South & W. R. Co., supra [150 N.C. 97, 63 S.E. 185], Connor, J., expresses the gist of the rule: "The compensation must be full and complete, and include everything which affects the value of the property taken and its relation to the entire property affected."

In paragraph six of the petition, petitioners have alleged in separately numbered paragraphs fourteen elements or items of damage to their property; to each they assign a specific amount; and in paragraph seven they summarize and tabulate the items, "hereinabove fully alleged," the total of the itemized fourteen items being $44,032.37, the amount of compensation the petitioners seek to recover. Except in minor particulars, these allegations were stricken.

It would unduly encumber this opinion to consider in detail each of the challenged fourteen paragraphs of paragraph 6. Careful consideration impels the conclusion that the order of Judge Fountain does not and will not prejudice either petitioners or respondent in the trial de novo before a jury of the issue as to the award to which petitioners are entitled.

"Any evidence which aids the jury in fixing a fair market value of the land and its diminution by the burden put upon it is relevant and should be heard. Any evidence which does not measure up to this standard is calculated to confuse the minds of the jury and should be excluded. This is as far as we can safely go in the present state of the case." Abernathy v. South & W. R. Co., supra.

Since the petitioners, without setting forth in their petition the specific elements they contend caused a diminution in fair market value, may offer evidence within the rule quoted in the preceding paragraph, they are in no way prejudiced by the ruling of Judge Fountain. Neither G.S. § 136-19 nor G.S. § 40-12, nor any decision to which our attention has been called, requires such particularization as a prerequisite to the introduction of relevant evidence. The petitioners may offer all competent evidence relevant to the issue to the same extent as if the stricken allegations were now in the petition.

While we refrain from charting the course of the trial and from anticipating questions of evidence that may arise, it may be helpful to call attention to the matters discussed below.

This is not an action for damages based on tort but a special proceeding under the statute for just compensation. Abernathy v. South & W. R. Co., supra. Hence, evidence as to noise and smoke, etc., as in Carolina & Y. R. R. v. Armfield, 167 N.C. 464, 83 S.E. 809, injury to a spring, as in Brown v. W. T. Weaver Power Co., 140 N.C. 333, 52 S.E. 954, 3 L.R.A.,N.S., 912, or the appropriation of a portion of church property "used for hitching horses," and the frightening of horses and the distraction of worshippers by the noise of passing trains, as in Durham & Northern R. Co. v. Trustees of Bullock Church, 104 N.C. 525, 10 S.E. 761, or damage on account of the ponding of surface waters, and the necessity for additional fencing of cultivated land, as in Raleigh & A. Air Line R. Co. v. Wicker, 74 N.C. 220, or injury to a spring, the requirement of additional fencing, and the inconvenience of having a field cut in two, as in Freedle v. North Carolina R. Co., 49 N.C. 89, was not relevant as a basis for the recovery of special damages. As pointed out by Walker, J., in Raleigh, C. & S. R. Co. v. Mecklenburg Mfg. Co., 169 N.C. 156, 85 S.E. 390, L.R.A.1916A, 1090, such adverse effects are not separate items of damage, recoverable as such, but are relevant only as circumstances tending to show a diminution in the overall fair market value of the property.

In Durham & Northern R. Co. v. Church, supra, the adverse effects shown tended to show a decrease in the fair market value of the land for church purposes. It was noted in the opinion by Merriman, C. J., that the property was of trifling value for purposes other than as a place of worship. It followed that any circumstances that depreciated its fair market value for church purposes adversely affected the property in respect of the use for which it was most valuable.

In estimating the fair market value, before and after the appropriation of a portion thereof, "all of the capabilities of the property, and all of 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, and not merely the condition it is in at the time and the use to which it is then applied by the owner." Barnhill, J. (now C. J.), in Nantahala Power & Light Co. v. Moss, supra [220 N.C. 200, 17 S.E.2d 13]; also see Brown v. Power Co., supra.

Careful consideration of these principles is appropriate in this case. Many of the elements of damage alleged in the petition concerned the adverse effect of the appropriation of a portion of petitioners' land upon the continued use of the property as the school site and campus of an educational institution. It may be that the property of petitioners was and is more valuable for institutional purposes than for any other use to which it might be applied. Determination of this fact would seem relevant. If perchance the property involved has a greater fair market value for another purpose adverse effects relating solely to use for institutional purposes would seem to be lacking in materiality. By way of illustration: Instances come to mind where a college, orphanage or other institution owns acreage, now within the heart of a city but far beyond the city limits when acquired. It may be that in such case the fair market value today is much greater for subdivision and development for business and residential purposes than for institutional purposes. For institutional purposes, the congestion in its present location may be a disadvantage rather than an advantage. Since the fair market value both before and after the taking of a portion thereof for a street would be greater for purposes other than for institutional use, evidence relating to elements that would affect the fair market value only for institutional purposes would seem irrelevant.

Difficulty is encountered when one undertakes to determine the fair market value of property now constituting the school site and campus of an educational institution. The reason is that there will be few, if any, prospective purchasers for such property for such use. Even so, the application of our concept of fair market value does not depend upon the actual availability of one or more prospective purchasers, but assumes the existence of a buyer who is ready, able and willing to buy but under no necessity to do so. Brown v. Power Co., supra; Nantahala Power & Light Co. v. Moss, supra. "Of course, the market value of a church could not be determined by saying just what somebody would give for that piece of property, because the ordinary citizen does not want to own a church, but what would a congregation that desired a church give for the church. In like manner, a college campus must have its value determined by what somebody who wanted a college would give for the property with that campus." Producers Wood Preserving Co. v. Commissioners of Sewerage, 277 Ky. 159, 12 S.W.2d 292, 295.

On respondent's appeal, we do not perceive that the respondent has been materially prejudiced by Judge Fountain's ruling adverse to its contention.

For the reasons stated, the judgment of Judge Fountain, in respect of both appeals, is affirmed.

Petitioners' appeal: Affirmed.

Respondent's appeal: Affirmed.