City of Elizabeth v. Gregory

BkogdeN, J. In substance, the case is this: The owners of land subdivide a portion thereof into building lots and plat the same, showing streets thereon, reserving an unsubdivided and unplatted portion. The street in controversy,' so platted, furnishes the only reasonable access to the unsubdivided and unplatted portion of the original tract. The question- of law is: If a third party obstructs said street with a permanent structure, is the landowner entitled to recover damages to his unsubdivided and unplatted land, resulting from such obstructions? The city, recognizing the general principles of law governing the platting and subdivision of property which is intersected by streets and alleys shown on the plat, contends, however, that the dedication of such streets is restricted to lot owners or purchasers and cannot be extended to unplatted land outside the subdivided area. In arriving at a correct interpretation of the applicable principles of law, it must be observed that the ancestor of the plaintiff originally owned the entire *762 tract. He platted and subdivided a portion thereof and laid out streets, including Wilson Street, in order to furnish approach and access to his remaining lands. The evidence offered in favor of the landowner tends to show that Wilson Street afforded and furnished the only reasonable access to this tract or property outside of the platted area. Under these circumstances obviously, Wilson Street constituted an easement belonging to and appurtenant to the unplatted property. The identical question involved was first considered by this Court in Grant v. Power Co., 196 N. C., 617, 146 S. E., 531. The Court said: “Whether or not, as a matter of law, upqn these facts, plaintiff is entitled to recover in this action, is not presented for decision by this appeal. We, therefore, do not decide the question as to whether or not a landowner, who is dependent on a public road for access to his land, can maintain an action for damages, for the wrongful obstruction of the road, resulting in damages to his land. There are decisions of courts of other jurisdictions which seem to support recovery of damages in such cases. In 29 C. J., at pages 631 and 632, it is said that an action for damages against one who injures a public highway may be maintained by a private person, if he has sustained special damages, differing not merely in degree, but in kind from that suffered by the community at large, as where access to plaintiff’s property is cut off. Many decisions are cited in support of the text.” Thereafter, in Colvin v. Power Co., 199 N. C., 353, 154 S. E., 678, the Court adopted the statement of the principle contained in 13 R. C. L., page 231, as follows: “It is generally held that one whose means of ingress to and egress from his property is completely cut off by an obstruction suffers a special injury, different from that suffered by the public at large, as, for example, where the obstructed way affords the only means of getting to market with the products of his adjoining farm. It is not material whether access is completely’ cut off from every point, or whether the obstruction merely cuts off the means of reaching particular places with which it is necessary or advantageous for the plaintiff to communicate.” See, also, Lamb v. Lamb, 177 N. C., 150, 98 S. E., 307; Gault v. Town of Lake Waccamaw, 200 N. C., 593, 158 S. E., 104; White v. Coghill, 201 N. C., 421. Certain exceptions were taken by the city to testimony relating to the measure of damages. For instance, a witness was permitted to state his opinion as to the value of the Gregory property. Another witness was permitted to state that in his opinion the property of Gregory was damaged one-half by the closing of the street. The trial judge gave to the jury the correct rule of damages, as he instructed the jury: “If you find the plaintiff is entitled to recover, he would be entitled to recover the difference between the reasonable market value of his *763 property before Wilson Street was obstructed and tbe reasonable market value of bis property immediately after Wilson Street was obstructed.” While tbe witnesses perhaps did not estimate this difference in dollars and cents and thus comply with tbe strict letter of tbe rule, it cannot be held for error that they estimated tbe difference upon a percentage basis. Plaintiff, Gregory, testified that portion of bis land was worth for building lots $100 to $500 per acre, and was asked on cross-examination if be did not know “that there has never been a day when you could sell that property for any such figure as that.” On redirect examination tbe attention of witness was called to tbe question so elicited on cross-examination, and be testified that tbe city bad offered him that price for a certain portion of tbe property and be bad accepted it. Tbe defendant objected to tbe testimony, but obviously tbe evidence was elicited by tbe nature of the cross-examination, and tbe city has no just ground for complaint. Affirmed.