#### DEPARTMENT OF TRANSPORTATION v. FRANK BRAGG and wife, JO ANNE BRAGG; ORVILLE D. COWARD, Trustee; and DON D. COGDILL and wife, CLEM H. COGDILL

No. 8130SC1408

(Filed 2 November 1982)

Eminent Domain § 6.4— highway right-of-way — damages to remaining land resulting from construction

In an action to condemn land for a highway right-of-way, evidence of damages resulting from water seepage caused by construction of the highway was inadmissible to establish severance damages to the remaining portions of defendant landowners’ property since compensation must be determined as of the date of the taking.

APPEAL by defendants from Sitton, Judge. Judgment entered 22 June 1981 in Superior Court, JACKSON County. Heard in the Court of Appeals 14 October 1982.

Defendants appeal the allowance of a motion in limine barring receipt of evidence regarding disturbance of the flow of surface or underground water that occurred after the State Department of Transportation took a right of way to facilitate widening of U.S. Highway 441 in Jackson County.

Attorney General Edmisten, by Assistant Attorney General Frank P. Graham, for the State.

Coward, Coward & Dillard, P.A., and Brown, Ward & Haynes, P.A., by H. H. Ward, Jr., for defendant-appellants.

HILL, Judge.

Defendants Frank Bragg and his wife, Jo Anne Bragg, own a motel and 1.34 acres of land abutting U.S. Highway 441 on the easterly margin. The other defendants’ interest in the land arises from a deed of trust on the premises.

On 28 March 1978, the State brought this condemnation action for a right of way on the east side of Highway 441. As part of its road-widening project, the Department of Transportation subsequently excavated a spring located within its right of way on the west side of Highway 441 and then filled and compacted the area for a roadbed. The spring formerly had drained into Shoal Creek via a pipe running east under Highway 441 and *345across defendants’ property. Apparently, this pipeline was disconnected in the course of excavation. As a result, water began seeping into defendants’ motel and surrounding lands, particularly when heavy traffic traversed the highway.

The State made an oral motion in limine requesting exclusion of any evidence of water damage. The trial court concluded that any damages resulting from water seepage arose after the taking and therefore could not be considered in assessing damages in this condemnation proceeding. Assuming the order of the trial court is interlocutory and not appealable, we treat this appeal as a petition for a writ of certiorari and allow the writ in order to dispose of the matter on its merits. See Plumbing Co. v. Associates, 37 N.C. App. 149, 245 S.E. 2d 555, disc. rev. denied, 295 N.C. 648, 248 S.E. 2d 250 (1978).

Defendants contend the trial judge erred in allowing plaintiffs motion in limine. They argue that evidence of water seepage should be admitted to establish severance damages to the remaining portions of their land.

Plaintiff urges that defendants are limited to the measure of damages prescribed in G.S. 136-112(1):

> 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.

Clearly, the foregoing formula contemplates a particular date; that is, the date of taking. It does not contemplate consideration of damages that might later arise during construction. The filing of the complaint and declaration of taking, together with payment of any deposit into court, vests title and right of possession in the condemning authority as of the date of filing. G.S. 136-104; State v. Johnson, 278 N.C. 126, 179 S.E. 2d 371 (1971).

This Court addressed the question in City of Greensboro v. Sparger, 23 N.C. App. 81, 208 S.E. 2d 230 (1974), in which landowners sought to present evidence of water damage that occurred *346after the city had condemned a sewer line right of way. Chief Judge Morris stated:

> Compensation must be determined as of the time of the taking. (Citations omitted.) Occurrences or events which may affect the value of the property after the date of the taking are not cognizable in an assessment of damages in an eminent domain proceeding. . . .

> Additionally, only damages proximately and directly ■caused by the taking at the time of the taking are recoverable. Any damages which respondents seek, as a result of improper, unlawful, or negligent construction of the sewer line after the taking, must be sought in a separate action.

23 N.C. App. at 82-83, 208 S.E. 2d at 231. See also Charlotte v. Spratt, 263 N.C. 656, 140 S.E. 2d 341 (1965); Highway Commission v. Black, 239 N.C. 198, 79 S.E. 2d 778 (1954); and Debruhl v. Highway Commission, 247 N.C. 671, 102 S.E. 2d 229 (1958).

Severance damages are limited to the value of the land as of the date of taking. Defendant’s claim of water damage may be considered in a future inverse condemnation proceeding.

The trial court properly allowed the motion in limine. The decision of the trial court is

Affirmed.

Judges Hedrick and Whichard concur.