{ "id": 8575274, "name": "NORTH CAROLINA BOARD OF TRANSPORTATION v. W. R. RAND and wife, ELIZABETH P. RAND; GEORGE F. LATTIMORE, JR. and wife, HELEN T. LATTIMORE", "name_abbreviation": "North Carolina Board of Transportation v. Rand", "decision_date": "1980-03-05", "docket_number": "No. 20", "first_page": "476", "last_page": "484", "citations": [ { "type": "official", "cite": "299 N.C. 476" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "256 S.E. 2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": -1 }, { "cite": "42 N.C. App. 202", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553335 ], "year": 1979, "opinion_index": -1, "case_paths": [ "/nc-app/42/0202-01" ] }, { "cite": "255 S.E. 2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 436", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570684 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0436-01" ] }, { "cite": "128 S.E. 2d 601", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "258 N.C. 310", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560527 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/258/0310-01" ] }, { "cite": "139 S.E. 2d 202", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "263 N.C. 212", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568827 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/263/0212-01" ] }, { "cite": "125 S.E. 2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "257 N.C. 121", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566050 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/257/0121-01" ] }, { "cite": "74 S.E. 2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "237 N.C. 136", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606421 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/237/0136-01" ] }, { "cite": "188 S.E. 2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574517 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0191-01" ] }, { "cite": "13 ALR 3d 1149", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1979, "pin_cites": [ { "page": "\u00a7 13" } ], "opinion_index": 0 }, { "cite": "87 P. 2d 734", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1939, "opinion_index": 0 }, { "cite": "31 Cal. App. 2d 219", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 4527424 ], "year": 1939, "opinion_index": 0, "case_paths": [ "/cal-app-2d/31/0219-01" ] }, { "cite": "256 Ark. 635", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723446 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/ark/256/0635-01" ] }, { "cite": "95 S.E. 2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1956, "pin_cites": [ { "page": "594" } ], "opinion_index": 0 }, { "cite": "245 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607949 ], "weight": 2, "year": 1956, "pin_cites": [ { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/nc/245/0208-01" ] }, { "cite": "67 S.E. 1066", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1910, "opinion_index": 0 }, { "cite": "152 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271987 ], "year": 1910, "opinion_index": 0, "case_paths": [ "/nc/152/0531-01" ] }, { "cite": "92 S.E. 323", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1917, "opinion_index": 0 }, { "cite": "173 N.C. 500", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270724 ], "year": 1917, "opinion_index": 0, "case_paths": [ "/nc/173/0500-01" ] }, { "cite": "72 S.E. 852", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1911, "opinion_index": 0 }, { "cite": "157 N.C. 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656615 ], "year": 1911, "opinion_index": 0, "case_paths": [ "/nc/157/0150-01" ] }, { "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": "55 S.E. 2d 479", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "pin_cites": [ { "page": "482" } ], "opinion_index": 0 }, { "cite": "230 N.C. 687", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631970 ], "year": 1949, "pin_cites": [ { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/nc/230/0687-01" ] }, { "cite": "126 S.E. 2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1962, "pin_cites": [ { "page": "111" }, { "page": "112" }, { "page": "112" } ], "opinion_index": 0 }, { "cite": "257 N.C. 428", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568280 ], "year": 1962, "pin_cites": [ { "page": "432-33" } ], "opinion_index": 0, "case_paths": [ "/nc/257/0428-01" ] } ], "analysis": { "cardinality": 799, "char_count": 18008, "ocr_confidence": 0.808, "pagerank": { "raw": 3.117590064874652e-07, "percentile": 0.8604096223370552 }, "sha256": "50101771f3fba036cda1c7d0bc3aa7a912fbaa7a18c71762e5a7e142621ac3db", "simhash": "1:0a700e3d25138ed4", "word_count": 2992 }, "last_updated": "2023-07-14T21:53:45.777487+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "NORTH CAROLINA BOARD OF TRANSPORTATION v. W. R. RAND and wife, ELIZABETH P. RAND; GEORGE F. LATTIMORE, JR. and wife, HELEN T. LATTIMORE" ], "opinions": [ { "text": "CARLTON, Justice.\nAt issue in this condemnation case is the sufficiency of a jury charge which did not include an instruction on general or special benefits where plaintiffs evidence tended to show such benefits existed. We hold that the jury charge was inadequate and therefore reverse the Court of Appeals.\nIt is well settled in this State that where only a portion of a tract of land is appropriated by the Board of Transportation for highway purposes,\nthe measure of damages in such proceeding is the difference between the fair market value of the entire tract immediately before the taking and the fair market value of what is left immediately after the taking. The items going to make up this difference embrace compensation for the part taken and compensation for injury to the remaining portion which is to be offset under the terms of the controlling statute by any general and special benefits resulting to the landowner from the utilization of the property taken for a highway. (Emphasis in original.)\nKirkman v. State Highway Commission, 257 N.C. 428, 432-33, 126 S.E. 2d 107, 111 (1962); Proctor v. State Highway and Public Works Commission, 230 N.C. 687, 691, 55 S.E. 2d 479, 482 (1949).\nGeneral benefits are defined as \u201c \u2018those which arise from the fulfillment of the public object which justified the taking . . . [and] are those which resulted from the enjoyment of the facilities provided by the new public work and from the increased general prosperity resulting from such employment.\u2019 \u201d Kirkman, supra at 434, 126 S.E. 2d at 112, quoting Templeton v. State Highway Commission, 254 N.C. 337, 118 S.E. 2d 918 (1961). Special benefits are defined as \u201c \u2018those which arise from the peculiar relation of the land in question to the public improvement.\u2019 \u201d Kirkman v. Highway Commission, supra at 433, 126 S.E. 2d at 112, quoting Templeton v. Highway Commission, supra.\nAlthough the distinction between general and special benefits is at times difficult to make, see, e.g., 27 Am. Jur. 2d Eminent Domain \u00a7 367 (1966) at p. 225 and cases cited therein, the majority of cases imply a more or less geographical standard \u2014 that is, general benefits are defined as those which are enjoyed not only by the property in litigation, but also by other neighboring tracts, while special benefits are defined as those peculiar to the property in litigation. 27 Am. Jur. 2d, supra at \u00a7 367. Thus in Phifer v. Commissioners of Cabarrus County, 157 N.C. 150, 72 S.E. 852 (1911), condemned land was held to receive a special benefit when a portion was taken for road paving because it became fronted on two sides, while neighboring tracts which became fronted on only one side were presumably only generally benefited.\nThe distinction between general and special benefits in road condemnation cases was important in this jurisdiction under former statutes which gave offset consideration only for special benefits, see, e.g., Campbell v. Road Commissioners of Davie County, 173 N.C. 500, 92 S.E. 323 (1917); Phifer v. Commissioners, supra; Bost v. Cabarrus County, 152 N.C. 531, 67 S.E. 1066 (1910). This distinction is no longer important, however, when G.S. 136-112(1) applies to the proceedings. That statute provides:\nWhere 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. (Emphasis added.)\nThe burden of proving the existence and the amount of benefit is on the condemnor. Kirkman v. Highway Commission, supra; 29A C.J.S., Eminent Domain \u00a7 184 (1965).\nIn the case at bar, plaintiff\u2019s expert witness testified:\nI went on this property on April 1 of 1974 prior to the taking. ... I made a comparison between the subject and various other sales of similar property, in order to arrive at an opinion of the value of that property, before the acquisition. I basically did the same thing in the after condition. The comparison sales that I used in the before condition \u2014 that is when the road was a soil-and-gravel surface road \u2014 I compared sales of properties that had frontage along soil-and-gravel surface roads, and then in the after condition since the subject was a paved road, I made a comparison between it and sales of similar properties in that general neighborhood that were along paved roads.\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.\nThe Court of Appeals held that this evidence of benefit was so hypothetical and speculative that an instruction on benefits was unwarranted, citing Kirkman v. Highway Commission, supra, and Statesville v. Anderson, 245 N.C. 208, 95 S.E. 2d 591 (1956).\nIn Kirkman, supra, the defendant State Highway Commission challenged the trial court\u2019s refusal to instruct on benefits in a condemnation case where the State closed a motel owner\u2019s access to a major highway. This Court held that an instruction on benefits was unnecessary where the abstract principle of law was unsupported by any evidence presented at trial. We reasoned that in such a situation the result of the instruction would only be to confuse the jury. Here, however, the State has produced evidence of benefit to defendants\u2019 land. Such evidence should be credited with a jury instruction.\nLikewise, in Statesville v. Anderson, supra, plaintiff sought to condemn some 17 to 29 feet of defendant\u2019s land for a road and sidewalk. This taking encompassed part of a dwelling, necessitating either its removal or demolition. The jury apparently compared the value of the property with the dwelling attached before the taking to the value of the remaining property minus the structure after the taking. On appeal, plaintiff argued that the jury should have been instructed on benefits because defendant retained the right to remove the house and the right to continue occupying it once it was moved. No testimony had been given at trial about the cost of moving the structure, the distance it would have to be moved, the construction of the building, the feasibility of moving and the time within which the moving had to be accomplished. In light of all these uncertain measures, this Court held that the benefits accruing from the right to move and continue using the dwelling were \u201ctoo minute and conjectural to measure.\u201d 245 N.C. at 212, 95 S.E. 2d at 594.\nAgain, the situation is clearly distinguishable in the case sub judice. Plaintiff\u2019s witness expressly testified to the specific amounts he as a real estate appraiser felt that the land values had increased. Such evidence is more than mere hypothesis and speculation. If defendants felt such testimony was conjectural, despite the specific nature of this witness\u2019 opinion it was defendants\u2019 duty at trial to challenge the testimony at cross-examination. See Templeton v. State Highway Commission, supra. This they apparently failed to do.\nFurthermore, we note that while courts in other jurisdictions have held that such ephemeral benefits as removal of a \u201cdust problem\u201d on a road, see Mulberry v. Shipley, 256 Ark. 635, 509 S.W. 2d 536 (1974) or reduction of traffic on an existing road, see People v. McReynolds, 31 Cal. App. 2d 219, 87 P. 2d 734 (1939) do not warrant consideration as benefits, those courts have allowed the instruction in cases similar to the one at bar. See, e.g., Annot, 13 ALR 3d 1149 at \u00a7 13 (1967 and Supp. 1979) and cases cited therein. We therefore hold that evidence of benefit here was clearly not hypothetical and speculative, and plaintiff was entitled to an instruction on this issue.\nThe Court of Appeals, however, did not rest its decision on this point alone. In addition it held that even though the instruction had not been warranted, the jury charge construed as a whole still included a proper instruction on the question of benefits.\nThe trial court here charged the jury on the law of damages in condemnation actions:\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. By this formula, not only is just compensation . . . determined for the value of the land actually taken but also for any damages that might flow as a result of that taking of the remaining land.\nLater, when stating the parties\u2019 respective contentions, the judge said:\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 afterwards, that the portions of the land now subject to flooding were subject to flooding before the taking; 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. . . .\nNowhere did he inform the jury that the law allowed it to consider benefits when awarding damages. Indeed, nowhere did he even mention the word benefit.\nDefendants argue before this Court that the statement of the plaintiff\u2019s contentions quoted above, when considered with other portions of the charge, represents a correct statement of the law of benefits as that law applies to the condemnation case before us and therefore \u201ccures\u201d the omission of a specific charge on benefits in the judge\u2019s instructions on the law. We disagree.\nThe trial judge is required to declare and explain the law arising on the evidence given in the case. G.S. 1A-1, Rule 51(a); Investment Properties of Asheville, Inc. v. Norburn, 281 N.C. 191, 188 S.E. 2d 342 (1972). This rule is a continuation of the requirement contained in former G.S. 1-180, Investment Properties v. Norburn, supra. As such, it creates a substantial legal right in the parties, Adams v. Beaty Service Company, 237 N.C. 136, 74 S.E. 2d 332 (1953), and vests in trial courts the duty, without a request for special instruction, to explain the law and apply it to the evidence on all substantial features of the case. Investment Properties v. Norburn, supra; Melton v. Crotts, 257 N.C. 121, 125 S.E. 2d 396 (1962). A failure to do so constitutes prejudicial error for which the aggrieved party is entitled to a new trial. Investment Properties v. Norburn, supra; Correll v. Gaskins, 263 N.C. 212, 139 S.E. 2d 202 (1964).\nThe requirement that the trial court charge on a party\u2019s contentions, however, is not accorded the same substantive weight. Indeed, the trial court is not required to state the contentions of the parties at all. In re Wilson\u2019s Will, 258 N.C. 310, 128 S.E. 2d 601 (1962). The reason for the distinction between stating the law and stating a party\u2019s contentions in a jury charge is obvious. Contentions, submitted by the respective parties and given to the jury by the judge without major change or editing, if the evidence supports their submission, merely restate what has been each side\u2019s theory of the case and view of the facts. Contentions often, in practice, become an extension of counsel\u2019s final argument to the jury, and are no doubt viewed by the jury with the same credibility or skepticism as that final summation calls forth. In view of this, we cannot hold that a paraphrase of the law of benefits contained in the trial court\u2019s statement to the jury of the plaintiff\u2019s contentions, as happened here, is adequate to satisfy the mandate of G.S. 1A-1, Rule 51(a).\nAdditionally we cannot agree with defendant\u2019s assertion before us that an instruction on benefits in a condemnation case must be specially requested. While it is true that in the absence of a special request on benefits, the judge is not required to fully define the meaning of general or special benefits or to distinguish between them, Board of Transportation v. Jones, 297 N.C. 436, 255 S.E. 2d 185 (1979), it is equally true that the case does not involve, as the situation sub judice does, a total omission in the jury charge of an instruction on the law of benefits. The requirement of a special request goes only to elaboration of the statement on the law of benefits, not to the actual inclusion of the statement on the law itself.\nWe therefore hold that the omission of an instruction on the law of benefits in the jury charge was erroneous in this case. Accordingly, the decision of the Court of Appeals is reversed and the case is remanded to that court for remand to the Superior Court of Wake County for a new trial on the issue of damages.\nReversed and remanded.", "type": "majority", "author": "CARLTON, Justice." } ], "attorneys": [ "Attorney General Rufus L. Edmisten by Special Deputy Attorney General James B. Richmond for the plaintiff appellant.", "William P. Few, Hatch, Little, Bunn, Jones, Few & Berry, for the defendant appellee." ], "corrections": "", "head_matter": "NORTH CAROLINA BOARD OF TRANSPORTATION v. W. R. RAND and wife, ELIZABETH P. RAND; GEORGE F. LATTIMORE, JR. and wife, HELEN T. LATTIMORE\nNo. 20\n(Filed 5 March 1980)\n1. Eminent Domain \u00a7 6.8\u2014 general and special benefits defined\nWith respect to condemnation cases, general benefits are defined as those which are enjoyed not only by the property in litigation, but also by other neighboring tracts, while special benefits are defined as those peculiar to the property in litigation.\n2. Eminent Domain \u00a7 6.8\u2014 general and special benefits \u2014 distinction unnecessary \u2014burden of proof\nThe distinction between general and special benefits in road condemnation cases is unimportant when G.S. 136-112(1) applies to the proceedings, since that statute provides that consideration should be given to any special or general benefits resulting from the taking, but the burden of proving the existence and the amount of benefit is on the condemnor.\n3. Eminent Domain \u00a7 7.8\u2014 highway condemnation \u2014general and special benefits \u2014 instruction required\nIn a highway condemnation action testimony by plaintiff\u2019s witness, an expert real estate appraiser, that the value of defendants\u2019 land was increased by the taking because a roadway fronting the property was paved and stating the dollar value of the land before taking and the dollar value after taking was sufficient evidence of benefit to require the trial court to instruct on this issue; furthermore, a paraphrase of the law of benefits contained in the trial court\u2019s statement to the jury of plaintiff\u2019s contentions was insufficient to satisfy the requirement of G.S. 1A-1, Rule 51(a) that the trial judge declare and explain the law arising on the evidence, and plaintiff was not required to request an instruction on benefits.\nON motion for discretionary review of a decision of the Court of Appeals, 42 N.C. App. 202, 256 S.E. 2d 299 (1979), affirming a condemnation award entered by McLelland, Judge, at the 10 April 1978 Session of Superior Court, WAKE County.\nPlaintiff instituted this condemnation proceeding against approximately .87 of an acre of defendants\u2019 land in 1974. The land was needed to pave soil-and-gravel State Secondary Road 1831, known as the Old Creedmoor Road, in northern Wake County. Prior to trial, the parties stipulated the only issue to be determined was the amount of compensation plaintiff owed defendants for the taking.\nAt trial, defendants introduced testimony tending to show that the value of their land after the taking diminished in an amount ranging from $45,000.00 to $54,300.00. Defendants and their witnesses stated that this diminution was primarily due to the periodic flooding of some 15 acres of land and resulting inaccessibility to a further 25 acres caused by plaintiff\u2019s elevation of the level of the roadbed and placement of certain culverts and ditches.\nPlaintiff\u2019s evidence sharply conflicted with defendants\u2019 and tended to show that after the taking and paving, the value of defendants\u2019 land was enhanced, not diminished. Plaintiff\u2019s witness Frank Gordon, an expert real estate appraiser, testified that he had made a comparison between defendants\u2019 land value before the taking and sales of similar properties in that general neighborhood along paved roads. Based on this study of similar properties, it was his opinion that the fair market value of the land prior to the taking was $280,150.00, and after the taking was $386,925.00, a gain in value of some $106,775.00. In his opinion, the property benefited as a result of the paving.\nThis witness further testified that according to a 1970 Wake County Soil Survey, approximately 15 acres of the tract were classified as alluvial, which is in essence soil subject to flooding. This survey was conducted four years prior to the institution of this suit.\nIn his charge to the jury, the judge instructed on the measure of damages to apply but gave no instruction as to the law of benefits in condemnation actions. He did, however, include in the jury charge that plaintiff contended the defendants\u2019 land value was enhanced by the taking. The jury returned a verdict of $25,000.00 for the defendants.\nOn appeal to the Court of Appeals, the plaintiff challenged the sufficiency of the jury charge and argued that an instruction on benefits should have been given. The Court of Appeals upheld the jury charge, stating that the instruction was sufficient, first, because evidence as to any benefit was too speculative and hypothetical to warrant an instruction, and second, even so, the instruction was adequate on the issue of benefits when construed as a whole.\nThis Court allowed motion for discretionary review on 6 November 1979.\nAttorney General Rufus L. Edmisten by Special Deputy Attorney General James B. Richmond for the plaintiff appellant.\nWilliam P. Few, Hatch, Little, Bunn, Jones, Few & Berry, for the defendant appellee." }, "file_name": "0476-01", "first_page_order": 500, "last_page_order": 508 }