Kirkman v. State Highway Commission

126 S.E.2d 107 (1962) 257 N.C. 428

D. C. KIRKMAN, and wife, Lela M. Kirkman,
v.
STATE HIGHWAY COMMISSION.

No. 378.

Supreme Court of North Carolina.

June 15, 1962.

W. P. Sandridge, Charles F. Vance, Jr., and Wade M. Gallant, Jr., Winston-Salem, Womble, Carlyle, Sandridge & Rice, Winston-Salem, of counsel, for petitioner appellees.

Atty. Gen. T. W. Bruton, Asst. Attys. Gen. Harrison Lewis, James F. Bullock, Ray Brady, Raleigh, and Blackwell, Blackwell, Canady & Eller, Winston-Salem, for respondent appellant.

SHARP, Justice.

Respondent's first assignment of error is to the failure of the trial judge to strike the evidence of Dr. O. L. Joyner, witness for the petitioners, who testified that in his opinion the property in question was worth $80,000.00 before the access to new 421 was taken and only $45,000.00 to $50,000.00 thereafter. On cross-examination he said that in arriving at his valuations he had taken into consideration the fact that the property was less valuable for motel and restaurant purposes after access had been lost to the new highway because the barricade resulted in a loss of business. Neither Dr. Joyner nor any other witness attempted to measure the loss of business in percentage or in money.

Loss of profits or injury to a going business conducted on property, or connected therewith are not elements of recoverable damages in an award for the taking under the power of eminent domain. Pemberton v. Greensboro, 208 N.C. 466, 181 S.E. 258. However, when the taking renders the remaining land unfit or less valuable for any use to which it is adapted, that fact is a proper item to be considered in determining whether the taking has diminished the value of the land itself. If it is found to do so, the diminution is a proper item for inclusion in the award. The condemnor is not required to pay compensation for a loss of business but only for the diminished value of land which results from the taking. When rental property is condemned the owner may not recover for lost rents, but rental value of property is competent upon the question of the fair market value of the property at the time of the taking. Palmer v. North Carolina State Highway Commission, 195 N.C. 1, 141 S.E. 338.

Respondent's appraisers conceded that in the operation of a motel and restaurant, petitioners were making the highest and best use of their property at the time the access point was taken. The highest and most profitable use for which property is adaptable is one of the factors properly considered in arriving at its market value. Williams v. State Highway Commission, 252 N.C. 514, 114 S.E.2d 340. Dr. Joyner's testimony, to which objection is made, was that in arriving at the valuation of the property after the taking he had considered the obvious fact that it was not as valuable motel and restaurant property as it had been before. In other words, its highest and best use had been damaged. The first assignment of error is not sustained.

Respondent's second assignment of error is to the failure of the judge to charge the jury that any damages sustained by the petitioners should be offset by general and special benefits. On August 15, 1958, the time of the taking of respondent's access to new 421, G.S. § 136-19 provided that when the State Highway Commission condemned land "* * * in all instances the general and special benefits shall be assessed as offsets against damages."

It is firmly established in this State that "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 offset 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". (Emphasis added.) Proctor v. State Highway and Public Works Commission, 230 N.C. 687, 691, 55 S.E.2d 479, 482. This rule has been approved many times: North Carolina State Highway Commission v. Black, 239 N.C. 198, 79 S.E.2d 778; Robinson v. State Highway Commission, 249 N.C. 120, 105 S.E.2d 287; Williams v. State Highway Commission, supra; Templeton v. State Highway Commission, 254 N.C. 337, 118 S.E.2d 918.

The respondent apparently contends that this rule is a fixed formula which the trial judge is required to give in any condemnation proceeding to which the State Highway Commission is a party, and that the omission of the trial judge to charge the italicized lines in the instant case constituted reversible error.

In each of the cited cases respondent had condemned a right of way for the construction of a highway across the owner's property and, as the law required, the judge gave "the formula". In the instant case, however, the property taken was not for the construction of a highway; it was the respondent's access point and right of access to a highway which had already been constructed.

Whether benefits are general or special, "it is generally agreed that only those benefits can be taken into consideration which arise from the particular improvement for the purpose of which the owner's land is taken or damaged and not those which have no causal connection with such improvements but are derived from other previous or subsequent improvements, even though made by the condemner. * * *" Anno. —Eminent Domain—Deduction of Benefits, 145 A.L.R. 110. In the negotiations in which petitioners conveyed to respondent the rights of way for new 421 and Interstate 40, the parties had already taken into consideration the question of general and special benefits from the construction of both highways. "A benefit once allowed cannot be reasserted in a further proceeding to condemn." C. F. Randolph, The Law of Eminent Domain, Section 268.

Special benefits are defined as "those which arise from the peculiar relation of the land in question to the public improvement", Templeton v. State Highway Commission, supra. Tested by this definition it is obvious that no special benefit arose from the peculiar relation of the Pony Motel property to the barricaded access to new 421. In his paper entitled "Compensable Damages Due to Construction of Limited Access Highways," delivered at the Second Annual Institute on Eminent Domain, held at the Southwestern Legal Center in Dallas, Texas, in 1960, Alfred C. Jahr, author of Eminent Domain: Valuation and Procedure, said: "We can see no special benefits peculiar to the remainder of the property when access to the new highway is specifically excluded from the abutting property", page 85 of the Proceedings.

General benefits are defined as "those which arise from the fulfillment of the public object which justified the taking * * * general benefits are those which result from the enjoyment of the facilities provided by the new public work and from the increased general prosperity resulting from such enjoyment", Templeton v. State Highway Commission, supra. Presumably the public object in barricading the access was to increase highway safety by the elimination of traffic entering new 421 from the motel. Conceding that the elimination of this access did remove one more traffic hazard on new 421, it is impossible to say that it benefited the community to such an extent that it had any effect on property values in the community. "Of course, any alleged benefit to have any standing in court at all, must be genuine and capable of estimation in money value." 18 Am.Jur. Eminent Domain, Section 297. "They must be actual and appreciable and not merely conjectural, and they must be the direct and proximate result of the improvement, remote benefits not being taken into consideration," 29 C.J.S. Eminent Domain § 183. "Whether benefits are special or general, the courts are agreed on the proposition that remote, uncertain, contingent, imaginary, speculative, conjectural, chimerical, mythical or hypothetical benefits cannot, under any circumstances, be taken into consideration." Anno.—Eminent Domain—Deduction of Benefits, 145 A.L.R. 124. Statesville v. Anderson, 245 N.C. 208, 95 S.E.2d 591.

The burden of proving the existence and the amount of benefits is on the condemner. 29 C.J.S. Eminent Domain § 184. It would have been error for the Court to charge upon general and special benefits as an abstract principle of law which was not presented by the evidence in the case. Carswell v. Lackey, 253 N.C. 387, 117 S.E. 2d 51. Indeed, had the judge charged the jury that they could offset petitioners' recovery by the value of general and special benefits, when they had previously heard no evidence of such benefits, confusion would have been the only result. Assignment No. Two is without merit.

As its third assignment of error, respondent asserts that the trial judge expressed an opinion to the jury that they should compensate the petitioners in "a substantial amount". For this assignment respondent lifted out of context a part of a sentence.

The Court, while stating the contentions of the petitioners that they were entitled to recover a substantial sum because this was the only time they could ask for damages, inserted parenthetically the following: "—and the Court charges you this is the only time they can recover; this is the only time that they can ask to be compensated for any injury to this land now—". He then resumed his statement of petitioners' contentions by saying: "—and that you should compensate them in a fair and reasonable amount, which should be a substantial amount, because according to all the evidence he has a substantial investment there which has been permanently damaged". When stating the law the Court used the present tense; when he resumed his statement of petitioners' contentions he returned to the subjunctive. Immediately thereafter, in his next sentence, the judge began to state the respondent's contention by saying: "Now the respondent, on the other hand, insists and contends that * * *"

The sentence which ended the statement of petitioners' contentions was a long one but, when construed as a whole, it is apparent that the judge was merely stating a contention of the petitioners and not expressing an opinion.

We fail to find anything in this record which indicates that the respondent did not have a fair trial.

No error.