Lyerly v. North Carrolina State Highway Commission

Pee CüRiam. As stated in petitioners’ brief, their allegations herein “are substantially identical with those” in the companion case of Sherrill v. Highway Commission, ante, 643, 142 S.E. 2d 653. Petitioners alleged they, as lessees, operated a grocery store in the Sherrill building on South Center Street, Statesville, N. C., and that, on account of the destruction of the south wall of said building on October 14, 1959, (1) their stock of goods was damaged, (2) they incurred extra expense, and (3) they lost profits, to their damage in the aggregate amount of $2,800.00. In Midgett v. Highway Commission, 260 N.C. 241, 132 S.E. 2d 599, it was held the complaint stated “a legally cognizable cause of action for damages by reason of the appropriation of land for public use.” The plaintiff alleged valuable personal property was in the buildings on his lands. With reference thereto, the Court, in opinion by Moore, J., said: “The allegations of damage to personal property, however, are not sustained. Under the circumstances of this case and the permanent nuisance theory upon which it is maintained an action for the ‘taking’ of movable personal property may not be upheld. There is no permanent nuisance with respect to such property and the damage thereto is regarded as incidental and not direct. Furthermore, the Highway Com [650] mission has no authority to appropriate personal property for public use. G.S. 136-19. ‘No allowance can be made for personal property, as distinguished from fixtures, located on the condemned premises. . . .' 29 C.J.S., Eminent Domain, § 175a (1), p. 1045. Under the facts alleged, any injury to personal property is damnum absque injuria. See Williams v. Highway Commission, 252 N.C. 141, 113 S.E. 2d 263; Pemberton v. Greensboro, 208 N.C. 466, 181 S.E. 258.” Applying the law as stated in Midgett, it is held that the petition herein fails to state facts sufficient to constitute a cause of action. Hence, the judgment of the court below is affirmed. Affirmed.