ErviN, J.
Both appeals present this question: In the absence of an agreement so providing, can the State Highway and Public Works Commission require a landowner to remove buildings of a permanent character from the portion of his realty taken for highway purposes to his remaining land %
The State has delegated to the State Highway and Public Works Commission the right to condemn private property for the establishment and maintenance of public highways. Gr.S. 136-19. When land is appropriated under this power of eminent domain for the right of way for a [691]*691road, tbe general public acquires an easement only in tbe land so taken, and tbe fee to tbe property remains in tbe landowner, wbo may subject tbe land to any use wbicb is not inconsistent witb its use for tbe purpose for wbicb it is taken. But tbe easement confers upon tbe State Highway and Public "Works Commission complete authority to occupy and use tbe entire right of way for highway purposes whenever it deems such action conducive to tbe interests of tbe public. Hildebrand v. Telegraph Co., 219 N.C. 402, 14 S.E. 2d 252. This necessarily implies that tbe State Highway and Public Works Commission may remove from tbe right of way any obstructions to tbe free passage of tbe traveling' public.
It is a fundamental principle in this jurisdiction that tbe taking of private property for public use imposes upon tbe condemnor a correlative duty to make just compensation to tbe owner of tbe property appropriated. Hildebrand v. Telegraph Co., supra; Sanders v. R. R., 216 N.C. 312, 4 S.E. 2d 902; Reed v. Highway Commission, 209 N.C. 648, 184 S.E. 513; Highway Commission v. Young, 200 N.C. 603, 158 S.E. 91. Such compensation is to be measured by tbe loss occasioned to tbe owner by tbe taking. S. v. Lumber Co., 199 N.C. 199, 154 S.E. 72.
If tbe State Highway and Public Works Commission and a landowner are unable to agree upon tbe compensation justly accruing to tbe latter from tbe taking of property by tbe former, tbe matter is to be determined once for all in a condemnation proceeding instituted by either party under tbe provisions of Chapter 40 of tbe General Statutes. G.S. 136-19. Where only a part of a tract of land is appropriated by tbe State Highway and Public Works Commission for highway purposes, tbe measure of damages in such proceeding is tbe difference between tbe fair market value of tbe entire tract immediately before tbe taking and tbe fair market value of what is left immediately after tbe taking. Tbe items going to make up this difference embrace compensation for tbe part taken and compensation for injury to tbe remaining portion, wbicb is to be offset under tbe terms of tbe controlling statute by any general and special benefits resulting to tbe landowner from tbe utilization of tbe property taken for a highway. G.S. 136-19; Highway Commission v. Hartley, 218 N.C. 438, 11 S.E. 2d 314.
Tbe answer to tbe question raised by both appeals is not to be found in any of tbe statutes relating to the State Highway and Public Works Commission. For this reason, recourse must be bad to tbe general principles of tbe law of eminent domain for tbe solution of tbe problem.
Buildings must be regarded as a part of tbe real estate upon wbicb they stand. Indeed, they are ordinarily without value or utility apart from such realty. When a public agency or a private enterprise possessing tbe power of eminent. domain cannot acquire land upon wbicb buildings have been erected without resorting to condemnation, it must either [692]*692take the land with the buildings thereon or.reject it altogether. If it elects to condemn in such case, it takes the buildings with the land, and they must be taken into account in determining the compensation to be awarded the owner in so far as they add to the market value of the land to which they are affixed. The condemnor cannot obviate the necessity for considering the value of the buildings in fixing the owner’s compensation by an offer to pay for the land without the buildings coupled with a proposal that the owner remove them from the premises condemned to other land belonging to him. Goldsboro v. Holmes, 180 N.C. 99, 104 S.E. 140; Lewis on Eminent Domain (3rd Ed.), section 726; 29 O.J.S., Eminent Domain, section 175; 18 Am. Jur., Eminent Domain, section 253.
The reasons underlying these rules are stated with clarity and vigor by the Court of Civil Appeals of Texas in State v. Miller, 92 S.W. 2d 1073.
“In the beginning, it should be noted that we are not here concerned with the rights of the parties to arrange for the removal of the improvements from the condemned land by mutual agreement. Those were matters that lay entirely within the discretion of the parties prior to and independent of the judgment of the court; but when the parties exhausted their efforts for an amicable settlement and invoked the aid of the court to adjust their differences, they came into court, not as contracting parties, but as antagonists, standing at arm’s length, and each was entitled to stand on his legal rights, and neither could be compelled to make a settlement contrary to established legal principles. The remedy of eminent domain, by which the government through one of its agencies or a quasi-public corporation is authorized to take the property of a private citizen because of the supposed urgent public need, is a harsh one and must be exercised in accord with the strict principles appertaining thereto. Such proceeding is in the nature of an enforced sale in which the agency so appropriating the land stands in the position of a buyer. Consequently, it must either take the land with the permanent improvements thereon as it stands and pay for it accordingly, or reject it in toto. It cannot strip the improvements therefrom and compel the owner to provide other land to receive the salvage, and then rightfully insist that the owner is fully compensated by the payment of the value of the naked land so appropriated. If the rule here contended for is applicable to rural property, it is likewise applicable to urban property. Its general application might often permit the State, a railway corporation, or other agency with authority to condemn land, to move the buildings of? of the condemned land onto vacant lots that had been acquired by the owner for use for an entirely different purpose, and in this way the owner’s plan for the improvement of his private property, not directly involved in the condemnation proceedings, might be entirely upset. Such a rule would be [693]*693intolerable. Tbe law will not sanction such unnecessary meddling with, a citizen’s rights.”
Since there are no exceptions to any matters preceding the return of the verdict, we must indulge in the reasonable presumption that trial was had down to that point in accordance with the principles set out above. Crisp v. Thread Mills, 189 N.C. 89, 126 S.E. 110; Stevens v. R. R., 187 N.C. 528, 122 S.E. 295.
Whether the presence of parts of the dwelling and store on the right of way interfered with the free exercise of the easement condemned was for the determination of the respondent. Whether she should accept the proposal of the respondent that she remove these parts of the buildings from the right of way to her remaining lands at her own expense was for the decision of the petitioner. These things were not concerns of the court. Hence, the court rightly refused to coerce removal by the petitioner by means of a judgment impounding a portion of the recovery.
Free access — add to your briefcase to read the full text and ask questions with AI
ErviN, J.
Both appeals present this question: In the absence of an agreement so providing, can the State Highway and Public Works Commission require a landowner to remove buildings of a permanent character from the portion of his realty taken for highway purposes to his remaining land %
The State has delegated to the State Highway and Public Works Commission the right to condemn private property for the establishment and maintenance of public highways. Gr.S. 136-19. When land is appropriated under this power of eminent domain for the right of way for a [691]*691road, tbe general public acquires an easement only in tbe land so taken, and tbe fee to tbe property remains in tbe landowner, wbo may subject tbe land to any use wbicb is not inconsistent witb its use for tbe purpose for wbicb it is taken. But tbe easement confers upon tbe State Highway and Public "Works Commission complete authority to occupy and use tbe entire right of way for highway purposes whenever it deems such action conducive to tbe interests of tbe public. Hildebrand v. Telegraph Co., 219 N.C. 402, 14 S.E. 2d 252. This necessarily implies that tbe State Highway and Public Works Commission may remove from tbe right of way any obstructions to tbe free passage of tbe traveling' public.
It is a fundamental principle in this jurisdiction that tbe taking of private property for public use imposes upon tbe condemnor a correlative duty to make just compensation to tbe owner of tbe property appropriated. Hildebrand v. Telegraph Co., supra; Sanders v. R. R., 216 N.C. 312, 4 S.E. 2d 902; Reed v. Highway Commission, 209 N.C. 648, 184 S.E. 513; Highway Commission v. Young, 200 N.C. 603, 158 S.E. 91. Such compensation is to be measured by tbe loss occasioned to tbe owner by tbe taking. S. v. Lumber Co., 199 N.C. 199, 154 S.E. 72.
If tbe State Highway and Public Works Commission and a landowner are unable to agree upon tbe compensation justly accruing to tbe latter from tbe taking of property by tbe former, tbe matter is to be determined once for all in a condemnation proceeding instituted by either party under tbe provisions of Chapter 40 of tbe General Statutes. G.S. 136-19. Where only a part of a tract of land is appropriated by tbe State Highway and Public Works Commission for highway purposes, tbe measure of damages in such proceeding is tbe difference between tbe fair market value of tbe entire tract immediately before tbe taking and tbe fair market value of what is left immediately after tbe taking. Tbe items going to make up this difference embrace compensation for tbe part taken and compensation for injury to tbe remaining portion, wbicb is to be offset under tbe terms of tbe controlling statute by any general and special benefits resulting to tbe landowner from tbe utilization of tbe property taken for a highway. G.S. 136-19; Highway Commission v. Hartley, 218 N.C. 438, 11 S.E. 2d 314.
Tbe answer to tbe question raised by both appeals is not to be found in any of tbe statutes relating to the State Highway and Public Works Commission. For this reason, recourse must be bad to tbe general principles of tbe law of eminent domain for tbe solution of tbe problem.
Buildings must be regarded as a part of tbe real estate upon wbicb they stand. Indeed, they are ordinarily without value or utility apart from such realty. When a public agency or a private enterprise possessing tbe power of eminent. domain cannot acquire land upon wbicb buildings have been erected without resorting to condemnation, it must either [692]*692take the land with the buildings thereon or.reject it altogether. If it elects to condemn in such case, it takes the buildings with the land, and they must be taken into account in determining the compensation to be awarded the owner in so far as they add to the market value of the land to which they are affixed. The condemnor cannot obviate the necessity for considering the value of the buildings in fixing the owner’s compensation by an offer to pay for the land without the buildings coupled with a proposal that the owner remove them from the premises condemned to other land belonging to him. Goldsboro v. Holmes, 180 N.C. 99, 104 S.E. 140; Lewis on Eminent Domain (3rd Ed.), section 726; 29 O.J.S., Eminent Domain, section 175; 18 Am. Jur., Eminent Domain, section 253.
The reasons underlying these rules are stated with clarity and vigor by the Court of Civil Appeals of Texas in State v. Miller, 92 S.W. 2d 1073.
“In the beginning, it should be noted that we are not here concerned with the rights of the parties to arrange for the removal of the improvements from the condemned land by mutual agreement. Those were matters that lay entirely within the discretion of the parties prior to and independent of the judgment of the court; but when the parties exhausted their efforts for an amicable settlement and invoked the aid of the court to adjust their differences, they came into court, not as contracting parties, but as antagonists, standing at arm’s length, and each was entitled to stand on his legal rights, and neither could be compelled to make a settlement contrary to established legal principles. The remedy of eminent domain, by which the government through one of its agencies or a quasi-public corporation is authorized to take the property of a private citizen because of the supposed urgent public need, is a harsh one and must be exercised in accord with the strict principles appertaining thereto. Such proceeding is in the nature of an enforced sale in which the agency so appropriating the land stands in the position of a buyer. Consequently, it must either take the land with the permanent improvements thereon as it stands and pay for it accordingly, or reject it in toto. It cannot strip the improvements therefrom and compel the owner to provide other land to receive the salvage, and then rightfully insist that the owner is fully compensated by the payment of the value of the naked land so appropriated. If the rule here contended for is applicable to rural property, it is likewise applicable to urban property. Its general application might often permit the State, a railway corporation, or other agency with authority to condemn land, to move the buildings of? of the condemned land onto vacant lots that had been acquired by the owner for use for an entirely different purpose, and in this way the owner’s plan for the improvement of his private property, not directly involved in the condemnation proceedings, might be entirely upset. Such a rule would be [693]*693intolerable. Tbe law will not sanction such unnecessary meddling with, a citizen’s rights.”
Since there are no exceptions to any matters preceding the return of the verdict, we must indulge in the reasonable presumption that trial was had down to that point in accordance with the principles set out above. Crisp v. Thread Mills, 189 N.C. 89, 126 S.E. 110; Stevens v. R. R., 187 N.C. 528, 122 S.E. 295.
Whether the presence of parts of the dwelling and store on the right of way interfered with the free exercise of the easement condemned was for the determination of the respondent. Whether she should accept the proposal of the respondent that she remove these parts of the buildings from the right of way to her remaining lands at her own expense was for the decision of the petitioner. These things were not concerns of the court. Hence, the court rightly refused to coerce removal by the petitioner by means of a judgment impounding a portion of the recovery. But it transgressed its province in decreeing that the compensation awarded petitioner included the cost of removal of the buildings, and the judgment will be modified so as to eliminate such adjudication.
This brings us to the contention of the respondent that the recovery of the petitioner cannot exceed the award of the commissioners of appraisal, i.e., $7,150.00, because she did not except to their report and appeal to the court at term from the order of the Clerk confirming it, and that by reason thereof the court erred in rendering judgment for the petitioner for the higher damages, i.e., $7,508.00, found by the jury on the trial in term. This position is necessarily predicated upon the assumption that where the question of the amount of compensation justly accruing to a landowner on account of the taking of his property for public use is submitted to a jury of the Superior Court in term upon an appeal in a condemnation proceeding, the verdict of the jury is nugatory if it be favorable to the appellee rather 'than to the appellant.
We are unable to accept the suggestion of the respondent that it could lessen the award of compensation because it appealed, but that petitioner could not have it increased because she had not done so.
It is true that R. R. v. Church, 104 N.C. 525, 10 S.E. 761, which wás handed down in 1889 and which involved the construction of the statute then governing appeals in condemnation proceedings, lends color of support to the respondent’s position. Subsequent to the decision in that case, however, Chapter 148 of the Public Laws of 1893 was enacted “to secure the right of trial by jury in certain cases.” This statute is now codified as G-.S. 40-20 and specifies that any party to a condemnation proceeding “shall be entitled to have the amount of damages assessed by the commissioners or jurors heard and determined upon appeal before a jury [694]*694of tbe superior court in term, if upon tbe bearing of sucb appeal a trial by a jury be demanded.”
G.S. 40-20 clearly contemplates that tbe trial of tbe issue of damages before a jury of tbe Superior Court at term shall be de novo. Light Co. v. Reeves, 198 N.C. 404, 151 S.E. 871; Ayden v. Lancaster, 195 N.C. 297, 142 S.E. 18. By tbis it is meant that when either party to a condemnation proceeding appeals to tbe Superior Court in term and demands that tbe damages be determined by a jury, tbe trial must proceed in tbe Superior Court in so far as tbe question of damages is concerned as though no commissioners of appraisal bad ever been appointed. Tbis being true, it necessarily follows that tbe Superior Court at term is vested with authority to enter judgment for the landowner for tbe amount of damages fixed by tbe verdict of tbe jury, regardless of whether tbe same be greater or smaller than tbe sum originally awarded by tbe commissioners of appraisal, and regardless of whether tbe landowner or tbe con-demnor took tbe appeal. Hence, tbe court below properly rendered judgment in behalf of tbe petitioner for tbe larger amount found by tbe jury.
It is observed, in closing, that tbe petitioner does not raise any question as to tbe applicability of G.S. 40-10 to any of the property involved in tbis proceeding. In consequence, we express no opinion as to that.
Upon petitioner’s appeal: Judgment modified and affirmed.
Upon respondent’s appeal: No error.