Board of Transportation v. Terminal Warehouse Corp.

260 S.E.2d 696, 44 N.C. App. 81, 1979 N.C. App. LEXIS 3192
CourtCourt of Appeals of North Carolina
DecidedDecember 4, 1979
DocketNo. 7828SC1015
StatusPublished
Cited by2 cases

This text of 260 S.E.2d 696 (Board of Transportation v. Terminal Warehouse Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Board of Transportation v. Terminal Warehouse Corp., 260 S.E.2d 696, 44 N.C. App. 81, 1979 N.C. App. LEXIS 3192 (N.C. Ct. App. 1979).

Opinions

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]*86caused 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 . . .
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. . . 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]*87public 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]*88compensable 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.
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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]*89fered an “inconvenience shared in common with the general public,” which is damnum absque injuria.

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260 S.E.2d 696, 44 N.C. App. 81, 1979 N.C. App. LEXIS 3192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-transportation-v-terminal-warehouse-corp-ncctapp-1979.