Board of Transportation v. Terminal Warehouse Corp.

PARKER, Judge. Appellant assigns error to the court’s refusal to instruct the jury as requested by it “[t]hat substantial interference with the property owner’s access to U.S. Highway 74 was compensable” and “that the dead-ending of what formerly was U.S. 74 is a com-pensable damage item.” Instead of giving the requested instructions, the court instructed the jury that the landowner was not entitled to compensation for any circuity of travel resulting from the dead-ending of the highway and that mere inconvenience — 86 — caused by having to travel a circuitous route to and from the landowner’s property does not constitute a taking. We find no error in the refusal to give the requested instructions or in the instructions which were given in this case. So long as he is still afforded reasonable access to the street or highway on which his property abuts, the landowner is not entitled to compensation because the dead-ending of that street or highway by action of the public authorities leaves his property on a cul-de-sac. Wofford v. Highway Commission, 263 N.C. 677, 140 S.E. 2d 376, cert. denied, 382 U.S. 822 (1965); Snow v. Highway Commission, 262 N.C. 169, 136 S.E. 2d 678 (1964). The landowner has no right to have the flow of traffic pass his property undiminished or to insist that it continue to flow in both directions, Moses v. Highway Commission, 261 N.C. 316, 134 S.E. 2d 664, cert. denied 379 U.S. 930 (1964), and the mere inconvenience resulting from circuity of travel required to get to and from his property is not compensable but is damnum absque injuria. The rationale behind this rule was explained in Wofford v. Highway Commission, supra, as follows: The landowner has an easement consisting of the right of reasonable access to the particular highway on which his land abuts. He has no constitutional right to have anyone pass by his premises at all; highways are built and maintained for public necessity, convenience and safety in travel and not for the enhancement of property along the route. An abutting landowner is not entitled to compensation because of circuity of travel to and from his property; such inconvenience is held to be no different in kind, but merely in degree, from that sustained by the general public, and is damnum absque in-juria . . . * * * . . . Where a cul-de-sac is created, or the movement of traffic has been limited to one direction, the landowner’s right to use the street is no more restricted than is that of other citizens making use thereof, and the landowner has no constitutional right to have others pass his premises. Barnes v. Highway Commission, 257 N.C. 507, 126 S.E. 2d 732. The restriction upon the landowner and the restriction upon the — 87 — public generally, in the use of the street for travel, is no different in kind, but merely in degree. A property owner is not entitled to compensation for mere circuity of travel. Absolute equality of convenience cannot be achieved, and those who purchase and occupy property in the proximity of public roads or streets do so with notice that they may be changed as demanded by the public interest. 263 N.C. at 680-81, 140 S.E. 2d at 379-80. Appellant recognizes these principles but contends that they should not apply in a case such as is here presented where there has been an actual taking of a portion of the landowner’s property. The measure of damages where only a part of a tract of land is taken for highway purposes is prescribed by statute, G.S. 136-112(1), as follows: “where only a part of a tract is taken, the measure of damages for said taking shall be the difference between the fair market value of the entire tract immediately prior to said taking and the fair market value of the remainder immediately after said taking, with consideration being given to any special or general benefits resulting from the utilization of the part taken for highway purposes.” In applying this rule, “[t]he fair market value of the remainder immediately after the taking contemplates the project in its completed state and any damage to the remainder due to the user to which the part appropriated may, or probably will, be put.” Board of Transportation v. Brown, 34 N.C. App. 266, 268, 237 S.E. 2d 854, 855 (1977), aff’d, 296 N.C. 250, 249 S.E. 2d 803 (1978). Proper application of these rules does not make compensable elements of damages to the landowner’s remaining property which would not be compensable in the absence of any taking and which do not flow directly from the use to which the land taken is put. Such damages, if any, are shared by other property owners in the vicinity and occur without reference to whether any portion of the landowner’s property has been condemned. In short, they do not result from the taking of a portion of the landowner’s property. See, Light Company v. Creasman, 262 N.C. 390, 137 S.E. 2d 497 (1964); Annot., 59 A.L.R. 3d 488 (1974). This precise question was addressed by the Supreme Court of Ohio in Richley v. Jones, 38 Ohio St. 2d 64, 310 N.E. 2d 236 (1974), in which it was held that the fact of taking does not make — 88 — compensable elements of damages which would otherwise be dam-num absque injuria. In overruling decisions of the lower courts which had allowed compensation for such elements of damages where there had been a partial taking, the Supreme Court of Ohio reasoned as follows: The problem arises when there is a partial appropriation and the owner is allowed to present evidence of the impaired condition of the land because of the appropriation. In such cases, some lower courts in the state have allowed evidence to be heard that would ordinarily pertain only to consequential damages, on the theory that such damages have become severance damages. See, e.g., In re Appropriation for Hwy. Purposes (1966), 6 Ohio App. 2d 6, 215 N.E. 2d 612. The anomaly is well presented in Columbus v. Farm Bureau Cooperative Assn. (1971), 27 Ohio App. 2d 197, 200, 273 N.E. 2d 888, 890: “Thus, the issue before this court is whether damages consequential to the construction of an improvement, which would be damnum absque injuria, in the absence of the taking of any of a property owner’s property, become compensable damages to the residue where a portion of the property of such property owner is taken for the improvement.” The problem then revolves around our theory of just compensation. We usually define “market value” as the amount of money that a purchaser willing, but not obliged, to buy the property would pay to an owner willing, but not obliged, to sell, taking into consideration the reasonable uses to which the land may be put. But the landowner cannot profit because the state is exercising its power of eminent domain. The landowner is entitled to no special damages because he is compelled to part with his title. * * * The holdings in the lower courts in this cause have the effect of giving the landowner special damages. A neighbor who might have similar problems with traffic flow because of the construction of the median strip, but who has had no land taken by the state in connection with the project, will receive no recompense for whatever is done to his land. He has suf — 89 — fered an “inconvenience shared in common with the general public,” which is damnum absque injuria. Here, appellees have suffered that same “inconvenience,” differing possibly in degree but not in kind. The fact that this loss is coincident with an appropriation of land in no way changes the noncompensable character of the damage. 38 Ohio St. 2d at 69-70, 310 N.E. 2d at 240. In the present case the small portion of defendant’s property which was taken was located along the southern boundary of defendant’s tract. No part of the .16 acre tract taken had even been used in connection with operation of the trucking terminal and much of it was covered by the stream bed of Gashes Creek. Thus, the use of defendant’s remaining property as a trucking terminal was in no way impaired by the severance therefrom of the small strip taken. Access from defendant’s remaining property to the abutting road as it now exists is exactly the same as it was before the taking. The record discloses that other tracts of land northward along the road from defendant’s property are occupied by other trucking terminals. These tracts have been affected by the closing of the road south from defendant’s property and by the relocation of U.S. Highway 74 in exactly the same way as has defendant’s remaining tract. We see no sound reason why defendant should be entitled to compensation for elements of damages which, under Wofford v. Highway Commission, supra, would be denied to defendant’s neighbors. Defendant’s reliance on the decision of this court in Highway Comm. v. Yarborough, 6 N.C. App. 294, 170 S.E. 2d 159 (1969), as support for the proposition that it is entitled to compensation for substantial interference with its easement of access, is misplaced. In that case the evidence disclosed that the highest and best use of the property was residential and that, as result of a deprivation of all direct access to the abutting highway, a new street would have to be constructed to open the area to residential development. The interference with the easement of access was direct, immediate, and unique to the condemnee. Here, there has been no interference with defendant’s easement of access to the abutting road which, although not now a U.S. Highway, is still maintained as a secondary road running north from the property and which provides means of access to relocated Highway 74 at a — 90 — distance of approximately one mile from defendant’s property. Under these circumstances defendant’s access to Highway 74 has not been taken, and the trial court was correct when in effect it so instructed the jury. See Highway Commission v. Nuckles, 271 N.C. 1, 155 S.E. 2d 772 (1967). Defendant appellant also assigns error to the instructions given by the court as to the law governing the rights and liabilities of the parties with respect to changes in drainage of surface waters resulting from plaintiff’s construction of the Interstate 40 project. In this connection the court instructed the jury in accordance with the “reasonable use rule” adopted by our Supreme Court in Pendergrast v. Aiken, 293 N.C. 201, 236 S.E. 2d 787 (1977). In assigning error to these instructions, appellant does not contend that the court erred in failing to state the “reasonable use rule” correctly. Rather, the appellant contends that the court erred in applying the rule at all in this case. Appellant argues that although the “reasonable use rule” applies when a private landowner is charged with wrongfully diverting the flow of surface waters to his neighbor’s detriment, it should have no application in a case in which the state (or presumably any other body having the power of eminent domain) is so charged. In such a case, appellant contends, any damage caused by action of the body having the power of eminent domain constitutes a taking in the constitutional sense for which just compensation must be paid. We do not agree with appellant’s contention that it was error to apply the “reasonable use rule” in this case. In its opinion in Pendergrast v. Aiken, supra, our Supreme Court was careful to point out that adoption of the “reasonable use rule” was a clarification rather than an innovation in the law of this state. The Court noted that “[i]n the past, modifications in drainage water law have been piecemeal as required by time and circumstance” and that the Court’s action in adopting the reasonable use rule “simply recognizes that fact and approves a rule by which adjustments in the rights and duties of landowners may be made fairly and justly without disrupting the consistency of the law.” 293 N.C. at 218, 236 S.E. 2d at 798. We find nothing in the opinion which indicates that the Court did not intend the rule to apply in cases in which a condemning authority is involved. On the contrary, the Court expressly pointed out that the reasonable use rule “can be applied effectively, fairly and consistently in any — 91 — factual setting, . . . and thus has the capacity to accommodate changing social needs without occasioning the unpredictable disruptions in the law associated with our civil law rule.” 293 N.C. at 216, 236 S.E. 2d at 796. The changing social needs to which the Court referred frequently require the exercise of the power of eminent domain, and a number of the cases cited by the Court in the course of its analysis of the modifications which prior decisions in this state had already effected in the strict civil law rule arose out of disputes in which bodies having the power of eminent domain were involved. See, e.g., Yowmans v. Hendersonville, 175 N.C. 574, 96 S.E. 45 (1918); Dunlap v. Light Co., 212 N.C. 814, 195 S.E. 43 (1938); Midgett v. Highway Commission, 260 N.C. 241, 132 S.E. 2d 599 (1963); City of Kings Mountain v. Goforth, 283 N.C. 316, 196 S.E. 2d 231 (1973). We note particularly that the Court in Pendergrast, after citing and quoting from Dunlap v. Power Co. supra, a case which involved a party having the power of eminent domain, pointed out that it had already “adopted a flexible rule of reasonable use with regard to the rights and duties of riparian owners where such a position was mandated by basic long-term change in the social and economic structure of society.” 293 N.C. at 214, 236 S.E. 2d at 795. Finally, we note the following admonition from the opinion in Pendergrast which seems particularly applicable to a case involving a party having the power of eminent domain: We emphasize that, even should alteration of the water flow by the defendant be “reasonable” in the sense that the social utility arising from the alteration outweighs the harm to the plaintiff, defendant may nevertheless be liable for damages for a private nuisance “if the resulting interference with another’s use and enjoyment of land is greater than it is reasonable to require the other to bear under the circumstances without compensation.” See Restatement (Second) of Torts (Tent. Draft No. 17, 1971); Restatement (Second) of Torts §§ 826, 829A (Tent. Draft No. 18, 1972). The gravity of the harm may be found to be so significant that it requires compensation regardless of the utility of the conduct of the defendant. 293 N.C. at 217-18, 236 S.E. 2d at 797. The trial judge in the present case was careful to instruct the jury in accord with this admonition. — 92 — In holding that the trial court in the present case was correct in instructing the jury that the rights of the parties were governed by the reasonable use rule, we are not inadvertent to the expressions in some pre-Pendergrast cases in which our Supreme Court spoke in terms of the rights of upper and lower proprietors with regard to the control and use of surface waters as being property rights the invasion of which by a party having the power of eminent domain would amount to a taking, see, e.g., City of Kings Mountain v. Goforth, supra, at 325, 196 S.E. 2d at 238, nor do we overlook similar expressions in cases from other jurisdictions, see, Annot., 128 A.L.R. 1195, 1198 (1940). We do not, however, view these cases as determinative of the question now before us. As we view the matter, the question presented by the present case is not whether the landowner is entitled to be fairly compensated for damages caused by any invasion of its rights with respect to the flow of surface waters which may have been caused by plaintiff’s construction of the Interstate 40 project, a point which may be readily conceded. Rather, the question presented by this appeal is what rule should be applied by the court and jury in determining whether, and to what extent, the landowner’s rights have been invaded. In our opinion, and we so hold, the trial court was correct in instructing the jury to apply the reasonable use rule as enunciated in Pendergrast in making that determination. The appellant has also brought forward assignments of error directed to the court’s actions in admitting and excluding certain testimony. We have carefully considered these assignments of error and find no prejudicial error which warrants the granting of a new trial. No error. Judge WEBB concurs. Judge MARTIN (Robert M.), concurs in part and dissents in part.