City of Elizabeth v. Gregory, 202 N.C. 759 (1932)

June 15, 1932 · Supreme Court of North Carolina

202 N.C. 759

CITY OF ELIZABETH CITY et al. v. R. C. GREGORY, BESSIE GREGORY and CARL GREGORY and R. C. GREGORY and BESSIE GREGORY v. CITY OF ELIZABETH CITY and PUBLIC UTILITIES COMMISSION.

(Filed 15 June, 1932.)

1. Municipal Corporations I a — Held: owner of adjacent land had easement in street and could recover special damage caused by obstruc.tion.

Where the owner of land subdivides a portion thereof into lots and plats the same showing streets thereon, and reserves an unsubdivided and unplatted portion, and the dedication of the streets to the public is accepted by the city, and one of the streets so dedicated constitutes the only reasonable access to the land reserved by the owner: Held, the use of the street is an easement belonging to and appurtenant to the proiierty reserved by the owner, and upon the closing of such street to such reserved land the owner has suffered damage different, not only in degree but also in hind from that sustained by the public generally, and may recover the damages caused his land by reason of such wrongful obstruction of the street by the city or a third person.

2. Same — Admission of evidence as to damage sustained by wrongful obstruction of street held not error in this case.

Although the measure of damages recoverable by the owner of land having an easement over an adjacent street for the wrongful obstruction of the street is the difference in the fair market value before and after the wrongful obstruction, the admission of testimony that the plaintiff’s land was damaged by one-half its value will not be held for reversible error, there being other evidence as to the value of the land and the court having correctly instructed the jury as to the measure of damages.

3. Evidence D f — Admission of testimony in explanation of impeaching question asked on cross-examination held not error.

Where the value of the plaintiff’s land is in issue in an action and he has testified that the land was worth a certain amount, and on cross-examination he is asked if he did not know that the land had never been worth the price stated an exception to the admission of his testimony on redirect examination that the defendant had offered him the price stated for a portion of the land will not be sustained, the testimony being competent in its relation to the question asked on cross-examination.

Civil actioN, before MacRae, Special Judge, at October Term, 1931, of PASQUOTANK.

In the first case Elizabeth City filed a petition on 14 April, 1928, to condemn for public use the land described in' the petition. It was alleged that Elizabeth City was a tenant in common of said lands and owned a one-half interest therein. The defendants filed an answer denying the ownership of any of said land by the city, and further alleged that the city had trespassed upon the lands of defendant and built a pipe line across their property, and prayed that damages therefor should be assessed. The issue of ownership was determined by a jury at the January Term, 1929, in favor of defendants. Thereupon judgment was entered decreeing that the defendants in the first case were the owners in fee of the property, and further, that the cause be remanded to the clerk to proceed with the condemnation thereof. Thereafter on 13 August, 1929, the plaintiffs in the second suit instituted an action against Elizabeth City and others, alleging that the defendant city had constructed a building across Wilson Street and thereby deprived the plaintiffs of access to property owned by them and for the use of which Wilson Street had been laid out and dedicated. Damages were sought by the plaintiffs in the sum of $5,000. The city filed an answer admitting that it had constructed a building across a portion of Wilson Street, but denied that the plaintiffs had any right to use same, and that if such right had ever existed, the plaintiffs were estopped to assert 'the same. At the June Term, 1931, both cases were consolidated and commissioners were appointed to assess the damages resulting from the condemnation of certain lots set out on the Skinner and Gregory plat, and also to assess the damages, if any, sustained by the Gregorys by virtue of the closing of Wilson Street by the city. The commissioners filed a report awarding certain items, of damage, including an item of $300, for damage to the property of the Gregorys caused by “taking Wilson Street.” Exception’s were duly filed by both parties and the cause was tried in the Superior Court at the October Term, 1931, upon the following issue: “What damage, if any, is the plaintiff, R. C. Gregory, entitled to recover of the defendant, city of Elizabeth City, by reason of the closing of Wilson Street ?” The jury answered the issue “$1,000.” Apparently, all other items were settled except the controversy as to the closing of Wilson Street. Judgment was pronounced upon the verdict, and the city appealed.

The evidence tended to show that the father of plaintiff, Gregory, owned a certain block of land lying north of the Norfolk and Southern Railroad Company. Many years ago a portion of this land was platted and subdivided' into building lots. The plat was made in February, 1892. Tbe plat showed certain streets known as Mill Street, Wilson Street and Gregory Street. The city in furnishing light, water, power and sewerage to its inhabitants constructed a building which covered and blocked Wilson Street. Wilson Street as shown on the plat extended to an unplatted and unsubdivided tract of land owned by the Gregorys.

The testimony of plaintiff was as follows': “The plant completely dams up Wilson Street and extends out on each side; it is not possible now to drive northwardly from Broad Street down Wilson Street to my tract of land; they have blocked it up and there is no other street or road by which I can now drive to my tract of land from Broad Street unless on somebody else’s property. . . . The land was suitable for laying off in lots or suitable for farming purposes. . . . Part of this land was once part of a back field which my father cultivated and a part but not all of it was divided into lots. . . . My father opened Wilson Street and laid out Gregory Street at the same time. ... It is not possible to drive from Broad Street down Gregory to my property because there are a couple of railroads there that have never been fixed, . . . and if you go down Mill Street, in order to get to my property, you would have to cross the property of somebody else.” There was other testimony to the effect that “the Gregory property is completely shut off from access by the utility plant and by the swamp.”

There was further evidence tending to show that the blocking of Wilson Street had damaged the Gregory property as much as $4,000.

John 11. Hall and Thompson & Wilson for city of Elizabeth City.

McMullan & McMullan and M. B. Simpson for Gregory.

BkogdeN, J.

In substance, the case is this: The owners of land subdivide a portion thereof into building lots and plat the same, showing streets thereon, reserving an unsubdivided and unplatted portion. The street in controversy,' so platted, furnishes the only reasonable access to the unsubdivided and unplatted portion of the original tract.

The question- of law is: If a third party obstructs said street with a permanent structure, is the landowner entitled to recover damages to his unsubdivided and unplatted land, resulting from such obstructions?

The city, recognizing the general principles of law governing the platting and subdivision of property which is intersected by streets and alleys shown on the plat, contends, however, that the dedication of such streets is restricted to lot owners or purchasers and cannot be extended to unplatted land outside the subdivided area. In arriving at a correct interpretation of the applicable principles of law, it must be observed that the ancestor of the plaintiff originally owned the entire tract. He platted and subdivided a portion thereof and laid out streets, including Wilson Street, in order to furnish approach and access to his remaining lands. The evidence offered in favor of the landowner tends to show that Wilson Street afforded and furnished the only reasonable access to this tract or property outside of the platted area. Under these circumstances obviously, Wilson Street constituted an easement belonging to and appurtenant to the unplatted property. The identical question involved was first considered by this Court in Grant v. Power Co., 196 N. C., 617, 146 S. E., 531. The Court said: “Whether or not, as a matter of law, upqn these facts, plaintiff is entitled to recover in this action, is not presented for decision by this appeal. We, therefore, do not decide the question as to whether or not a landowner, who is dependent on a public road for access to his land, can maintain an action for damages, for the wrongful obstruction of the road, resulting in damages to his land. There are decisions of courts of other jurisdictions which seem to support recovery of damages in such cases. In 29 C. J., at pages 631 and 632, it is said that an action for damages against one who injures a public highway may be maintained by a private person, if he has sustained special damages, differing not merely in degree, but in kind from that suffered by the community at large, as where access to plaintiff’s property is cut off. Many decisions are cited in support of the text.” Thereafter, in Colvin v. Power Co., 199 N. C., 353, 154 S. E., 678, the Court adopted the statement of the principle contained in 13 R. C. L., page 231, as follows: “It is generally held that one whose means of ingress to and egress from his property is completely cut off by an obstruction suffers a special injury, different from that suffered by the public at large, as, for example, where the obstructed way affords the only means of getting to market with the products of his adjoining farm. It is not material whether access is completely’ cut off from every point, or whether the obstruction merely cuts off the means of reaching particular places with which it is necessary or advantageous for the plaintiff to communicate.” See, also, Lamb v. Lamb, 177 N. C., 150, 98 S. E., 307; Gault v. Town of Lake Waccamaw, 200 N. C., 593, 158 S. E., 104; White v. Coghill, 201 N. C., 421.

Certain exceptions were taken by the city to testimony relating to the measure of damages. For instance, a witness was permitted to state his opinion as to the value of the Gregory property. Another witness was permitted to state that in his opinion the property of Gregory was damaged one-half by the closing of the street. The trial judge gave to the jury the correct rule of damages, as he instructed the jury: “If you find the plaintiff is entitled to recover, he would be entitled to recover the difference between the reasonable market value of his property before Wilson Street was obstructed and tbe reasonable market value of bis property immediately after Wilson Street was obstructed.” While tbe witnesses perhaps did not estimate this difference in dollars and cents and thus comply with tbe strict letter of tbe rule, it cannot be held for error that they estimated tbe difference upon a percentage basis. Plaintiff, Gregory, testified that portion of bis land was worth for building lots $100 to $500 per acre, and was asked on cross-examination if be did not know “that there has never been a day when you could sell that property for any such figure as that.” On redirect examination tbe attention of witness was called to tbe question so elicited on cross-examination, and be testified that tbe city bad offered him that price for a certain portion of tbe property and be bad accepted it. Tbe defendant objected to tbe testimony, but obviously tbe evidence was elicited by tbe nature of the cross-examination, and tbe city has no just ground for complaint.

Affirmed.