NORTH CAROLINA STATE HIGHWAY COM'N v. Gasperson

150 S.E.2d 860 (1966)

268 N.C. 453

NORTH CAROLINA STATE HIGHWAY COMMISSION v. C. T. GASPERSON and wife, Mabel Gasperson.

No. 131.

Supreme Court of North Carolina.

November 9, 1966.

*862 Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harrison Lewis, Trial Atty. Eugene A. Smith and Associate Counsel, Lamar Gudger, for plaintiff appellee.

Harold K. Bennett and G. Edison Hill, Asheville, for defendant appellants.

BOBBITT, Justice.

Defendants' Exception No. 21 is directed to this portion of the charge: "No compensation shall be awarded to the defendants in this action for the denial of access rights to the new highway since no rights ever existed. Thus the denial of access to the new highway shall not enter into your consideration in determining what effect the appropriation for a controlled access highway has upon the fair market value of the remaining land immediately after the taking."

Defendants' Exception No. 22 is directed to "the failure of the court to instruct the jury to the effect that the denial of defendants to access to Interstate Highway 26 should be considered by the jury in assessing general damages in accordance with the provisions of G.S. § 136-89.52."

Article 6D of G.S. Chapter 136 is entitled "Controlled-Access Facilities." A section thereof, G.S. § 136-89.52, provides in pertinent part: "Along new highway locations abutting property owners shall not be entitled, as a matter of right, to access to such new locations; however, the denial of such rights of access shall be considered in determining general damages."

The applicable rule as to the measure of damages is now defined by statute 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." G.S. § 136-112(1). G.S. § 136-112 was enacted as a part of Section 2, Chapter 1025, of the Session Laws of 1959. The rule as to measure of damages stated in G.S. § 136-112 is in accord with that adopted and stated by this Court in numerous decisions prior to the adoption of the 1959 Act. Robinson v. Highway Commission, 249 N.C. 120, 105 S.E.2d 287, decided in 1958, and cases cited therein.

It is undisputed that defendants are denied access from the remaining portions of their property to Interstate Highway 26. The question presented by assignments of error based on Exceptions Nos. 21 and 22 is whether such denial of access is to be considered in determining the fair market value of the remaining portions of defendants' land immediately after the taking. The court instructed the jury that such denial of access should not be considered. G.S. § 136-89.52, in the portion thereof quoted above, expressly provides that "the denial of such rights of access shall be considered in determining general damages." (Our italics.)

G.S. § 136-112(1) states the applicable rule as to the ultimate measure of damages. It contains no provision as to factors to be considered by the jury in determining fair market value. Under our decisions, all factors pertinent to the fair market value of the remainder immediately after the taking are to be considered by the jury. Gallimore v. Highway Comm., 241 N.C. 350, 85 S.E.2d 392; Templeton v. Highway Commission, 254 N.C. 337, 118 S.E.2d 918. The fair market value of the remaining portions of defendants' land is *863 materially affected by the fact that access therefrom to Interstate Highway 26 is denied. G.S. § 136-89.52 provides expressly that the denial of such rights of access is a factor to be considered. Hence, the challenged instruction was erroneous and prejudicial.

On account of said error in the charge, defendants are awarded a new trial. Discusion of defendants' other assignments of error is unnecessary. They present questions that may not recur at the next trial.

New trial.