Department of Transportation v. Higdon

347 S.E.2d 868 (1986)

DEPARTMENT OF TRANSPORTATION
v.
Lewis R. HIGDON and wife, Carol Higdon; First Union National Bank, Trustee; and Asheville Federal Savings and Loan Association.

No. 8628SC295.

Court of Appeals of North Carolina.

September 16, 1986.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. Guy A. Hamlin, Asheville, for plaintiff-appellee.

Patla, Straus, Robinson & Moore by Jones P. Byrd, Asheville, for defendants-appellants.

ARNOLD, Judge.

Defendants contend that the trial court erred in its determination that the area taken by plaintiff was the area described in the plat. We disagree.

In Ledford v. Highway Comm., 279 N.C. 188, 190-91, 181 S.E.2d 466, 468 (1971), our Supreme Court stated:

"Taking" under the power of eminent domain may be defined generally as entering upon private property for more than a momentary period and, under the warrant or color of legal authority, devoting it to a public use, or otherwise informally appropriating or injuriously affecting it in such a way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof.

See also City of Winston-Salem v. Ferrell, 79 N.C.App. 103, 338 S.E.2d 794 (1986).

The alteration of defendants' property outside of the area described in the plat did not amount to a taking. In no way was this additional area devoted to a public use and defendants were neither substantially ousted nor deprived of all beneficial enjoyment of the area in question by the mere regrading of the property.

If, instead of modifying the access to defendants' property, plaintiff had impaired such access, defendants would likely have had a viable taking claim. See Thompson v. Seaboard Air Line R.R., 248 N.C. 577, 104 S.E.2d 181 (1958). Here, however, such is not the case and defendants' argument fails.

In City of Winston-Salem v. Ferrell, 79 N.C.App. 103, 338 S.E.2d 794 (1986), this Court held that a temporary taking had occurred when contractors constructing a city sewer project used a roadway over the defendant's property. The roadway was essential to provide access to the construction site and the use of the roadway flowed from the construction. This Court also held that the contractor's use of a staging area was not a taking because such staging area was not necessary to complete the project.

In the present case, the modification of defendants' property to provide access to Biltmore Avenue was in no way necessary or essential to the construction project. Therefore, no taking occurred.

Whether there is damage to defendants' remaining property as a result of the condemnation of the area described in the plat is a question more appropriately considered in the severed portion of this case concerning damages.

We find that the trial court did not err when it determined that the area taken was the area described in the plat. The decision of the trial court is

Affirmed.

EAGLES and PARKER, JJ., concur.