{ "id": 8553335, "name": "BOARD OF TRANSPORTATION v. W. R. RAND and wife, ELIZABETH P. RAND, GEORGE F. LATTIMORE, JR. and wife, HELEN T. LATTIMORE", "name_abbreviation": "Board of Transportation v. Rand", "decision_date": "1979-07-03", "docket_number": "No. 7810SC830", "first_page": "202", "last_page": "206", "citations": [ { "type": "official", "cite": "42 N.C. App. 202" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "78 S.E. 2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "238 N.C. 532", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612725 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/238/0532-01" ] }, { "cite": "95 S.E. 2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "245 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607949 ], "opinion_index": 0, "case_paths": [ "/nc/245/0208-01" ] }, { "cite": "145 A.L.R. 124", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "118 S.E. 2d 918", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "254 N.C. 337", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626226 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/254/0337-01" ] }, { "cite": "126 S.E. 2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1962, "pin_cites": [ { "page": "111" }, { "page": "112" } ], "opinion_index": 0 }, { "cite": "257 N.C. 428", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568280 ], "weight": 2, "year": 1962, "pin_cites": [ { "page": "433" }, { "page": "434" } ], "opinion_index": 0, "case_paths": [ "/nc/257/0428-01" ] } ], "analysis": { "cardinality": 454, "char_count": 8940, "ocr_confidence": 0.792, "pagerank": { "raw": 2.1471670164081693e-07, "percentile": 0.7680517281123339 }, "sha256": "279bfbfad4e019207af0c6dd41e00c6801083cd031efc34b576ee04a15fee25b", "simhash": "1:88c5a429d57bdb57", "word_count": 1456 }, "last_updated": "2023-07-14T15:00:09.609845+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Parker and Mitchell concur." ], "parties": [ "BOARD OF TRANSPORTATION v. W. R. RAND and wife, ELIZABETH P. RAND, GEORGE F. LATTIMORE, JR. and wife, HELEN T. LATTIMORE" ], "opinions": [ { "text": "MARTIN (Harry C.), Judge.\nPlaintiff argues the trial court erred in its charge by failing to instruct the jury concerning general and special benefits to defendants\u2019 property resulting from the highway project. We find no error.\nDefendants\u2019 evidence tended to show the value of their remaining property was reduced by reason of the condemnation.\nPlaintiff produced the following evidence indicating benefits to defendants\u2019 remaining property: the witness Frank Gordon testified he appraised the property on 1 April 1974 before the taking; he also appraised the property after the taking; the property had road frontage of 4560 feet before the taking and about 4471 front feet thereafter; the road was soil and gravel before and paved in this project. Gordon further testified:\nI have an opinion as to the fair market value of this entire tract immediately prior to the taking on October 9, 1974. That value is $280,150.00. In arriving at that figure I considered the highest and best use for this property to be residential development. That was before the taking. That $280,000.00 represented a per acre value of $1800.00 per acre. I have an opinion satisfactory to myself as to the reasonable fair market value of the tract in question immediately after the taking, October 9, 1974, that is $386,925.00. In my opinion the property has been benefited as a result of the highway. The highest and best use for this property after the taking is for residential development.\nOn cross-examination he testified:\nThe act of putting several feet of asphalt on that road increased the value of the property because it provided frontage along ... I estimate it would be worth more afterward, after the road was paved. I estimate it would be worth a hundred and six thousand dollars more. Based on the comparable sales that were made compared with the subject, in those sales using before condition had frontages along soil-and-gravel roads, whereas in the after conditions, after S.R. 1831 had been paved, I compared it then with the sales of properties along paved roads, and they tended to bring more money per acre. The construction of the road, in my opinion, did not damage the remaining land.\nWe hold plaintiff\u2019s evidence is not sufficient to require a charge on benefits. In order to require a charge on benefits, the evidence must establish benefits \u201cwhich arise from the particular improvement for the purpose of which the owner\u2019s land is taken or damaged.\u201d Kirkman v. Highway Commission, 257 N.C. 428, 433, 126 S.E. 2d 107, 111 (1962). Special benefits are those which arise from the peculiar relation of the land in question to the public improvement. General benefits are those which arise from the fulfillment of the public object which justified the taking and from the increased general prosperity resulting from the highway project. Templeton v. Highway Commission, 254 N.C. 337, 118 S.E. 2d 918 (1961).\nIn Kirkman, supra, the Court held:\n\u201cOf course, any alleged benefit to have any standing in court at all, must be genuine and capable of estimation in money value.\u201d 18 Am. Jur. Eminent Domain, Section 297. \u201cThey must be actual and appreciable and not merely conjectural and they must be the direct and proximate result of the improvement, remote benefits not being taken into consideration,\u201d 29 C.J.S., Eminent Domain, Section 183. \u201cWhether benefits are special or general, the courts are agreed on the proposition that remote, uncertain, contingent, imaginary, speculative, conjectural, chimerical, mythical or hypothetical benefits cannot, under any circumstances, be taken into consideration.\u201d Anno. \u2014Eminent Domain \u2014 Deduction of Benefits, 145 A.L.R. 124. Statesville v. Anderson, 245 N.C. 208, 95 S.E. 2d 591.\nThe burden of proving the existence and the amount of benefits is on the condemner. 29 C.J.S., Eminent Domain, Section 184.\n257 N.C. at 434, 126 S.E. 2d at 112.\nThe witness Gordon\u2019s only basis for his opinion that defendants\u2019 land value was increased by the taking was his testimony that the paving of the road provided frontage and that sales of property on paved roads \u201ctended to bring more money per acre.\u201d Actually, the record shows that defendants\u2019 property had less road frontage after the taking.\nAt best, plaintiff\u2019s evidence as to benefits was conjectural, uncertain, speculative and contingent. Plaintiff, having the burden of proof, failed to produce evidence showing the existence of benefits and the amount of such benefits.\nNevertheless, the court in its charge did present plaintiff\u2019s contention of benefits to the jury. Although the court did not use the word \u201cbenefit\u201d in its charge, it plainly told the jury to consider any evidence of increased value of defendants\u2019 land in arriving at their verdict.\nThe court instructed the jury:\nThe measure of damages when a part of the land is taken is the difference between the fair market value of the entire tract immediately before the taking and the fair market value of the remainder immediately after the taking\nThe Department of Transportation presented evidence tending to show that the fair market value of the land immediately before the taking was $280,150 and $386,920 after-wards, . . . that the changes in elevation and the pavement of the dirt roadway existing prior to the taking have caused no diminution in value, but, rather, have enhanced the value of the land remaining.\nYou should consider the opinions expressed as to value and also the reasons upon which those opinions were based, and upon a full consideration of all of the evidence together, determine what the values were before and after the taking.\n... If you should determine that the fair market value is greater after the taking than before the taking, the answer should be nothing or none, for the plaintiff, Department of Transportation, may not recover anything from the landowners for any increase that the land may have acquired in value by reason of the construction of the paving project.\nThe above quoted instructions, together with the remainder of the charge, fairly placed plaintiff\u2019s contention of benefits to the jury, although not in the precise language plaintiff now urges. If plaintiff desired more detailed or elaborate instructions as to benefits, it had the duty to so request the trial judge. Having failed to do so, the court\u2019s charge will not be held for error. Simmons v. Highway Commission, 238 N.C. 532, 78 S.E. 2d 308 (1953).\nAppellant has failed to show any prejudicial error in the trial, and we find none.\nNo error.\nJudges Parker and Mitchell concur.", "type": "majority", "author": "MARTIN (Harry C.), Judge." } ], "attorneys": [ "Attorney General Edmisten, by Associate Attorney R. W. Newsom III, for plaintiff appellant.", "Hatch, Little, Bunn, Jones, Few & Berry, by William P. Fevj, for defendant appellees." ], "corrections": "", "head_matter": "BOARD OF TRANSPORTATION v. W. R. RAND and wife, ELIZABETH P. RAND, GEORGE F. LATTIMORE, JR. and wife, HELEN T. LATTIMORE\nNo. 7810SC830\n(Filed 3 July 1979)\nEminent Domain \u00a7 7.8\u2014 highway condemnation \u2014 general and special benefits \u2014 instructions\nIn this highway condemnation action, testimony by plaintiff\u2019s witness that the value of defendants\u2019 land was increased by the taking because a roadway fronting the property was paved and property on the paved road \u201ctended to bring more money per acre\u201d was insufficient to require the court to instruct on general and special benefits to defendants\u2019 property resulting from the highway project; furthermore, the court did present plaintiff\u2019s contention of benefits to the jury when it told the jury to consider any evidence of increased value of defendants\u2019 land in arriving-at their verdict.\nAPPEAL by plaintiff from McLelland, Judge. Judgment entered 11 April 1978 in Superior Court, WAKE County. Heard in the Court of Appeals 29 May 1979.\nOn 9 October 1974 plaintiff began this action against W. R. Rand and wife, Elizabeth, and George F. Lattimore, Jr. and wife, Helen, for the condemnation of a part of their property for highway purposes. The condemnation was necessary to improve secondary road 1831, Old Creedmoor Road, in Wake County. Defendants owned 155.64 acres prior to the taking on 9 October 1974, and after the condemnation of .87 acre there remained 154.77 acres. The landowners\u2019 evidence tended to show that the highest and best use of the property both before and after the taking was for residential purposes; that in addition to the .87 acre acquired in the right of way, 15 acres had become subject to flooding because of water diversion by the highway construction and was no longer usable for residential purposes. Plaintiff\u2019s evidence tended to show that the 15 acres were subject to flooding before the condemnation. This soil and gravel road was paved as a part of the project. Frank Gordon testified for plaintiff that in his opinion the property was worth more after the taking than before and that the paving of the road benefited defendants\u2019 remaining property. Plaintiff appeals from the verdict of the jury assessing defendants\u2019 damages.\nAttorney General Edmisten, by Associate Attorney R. W. Newsom III, for plaintiff appellant.\nHatch, Little, Bunn, Jones, Few & Berry, by William P. Fevj, for defendant appellees." }, "file_name": "0202-01", "first_page_order": 230, "last_page_order": 234 }