Partial taking results in $428,392 compensation for land

After a five-day trial, a Perquimans County jury returned a verdict of $333,170 for the landowner in a condemnation action that involved the partial taking of property for the expansion of a water treatment facility.

The total award to the landowner, including prejudgment interest, came out to $428,392, which is believed to be the largest verdict in the county's 341-year history, according to the landowner's lawyer.

The town of Hertford instituted the eminent domain action on April 21, 2003, to acquire land for the treatment facility. The partial taking consisted of 2.32 acres of a 9.48-acre tract. The land condemned adjoined an existing water treatment facility, but it was adjacent to a public street with a water view of the Perquimans River. Highest-and-best use of the land was an issue at trial.

The town contended the highest-and-best use was commercial/industrial due to the land's proximity to the existing water plant. The property owners maintained the highest-and-best use was residential because the overall tract had public utilities, a public street and a water view. The land also was part of a recorded subdivision plat of record for many years prior to the condemnation action.

At the time the town filed the action, it obtained one appraisal from a Member of the Appraisal Institute (MAI). Based on the opinion of the appraiser, the town's deposit was $48,500. The town's appraiser, who testified as its expert witness, updated his opinion prior to trial, stating the difference in the before-and-after value of the property was $85,500.

Prior to trial, a hearing pursuant to G.S. Sect. 40A-47 involved an issue as to what portion of the land would be affected by the condemnation. The court ordered that 1.70 acres, which were separated by a man-made canal, be considered as additional land affected by the taking.

The landowners did not obtain a written before-and-after appraisal prior to trial but instead relied on the testimony of an experienced real estate broker during trial.
The difference between the town's appraiser and the landowner and his/her witnesses was whether or not the remaining 7.16 acres of land would be damaged as a result of the partial taking of 2.32 acres. The town contended that any damage was either small or nonexistent.
The landowner argued that, due to the proximity of the expansion of the water treatment plant to the rest of the land, it had a substantial diminution in value since the owner believed that the highest-and-best use of the land was residential. The landowner's real estate broker testified as to other land sales adjacent to this type of expanded use compared to land sales in the area not burdened by a use such as the expanded water treatment facility.

The parties attended a mediation conference, at which time the government rejected the landowner's offer of settlement and offered no increase above the deposit. The case continued to trial, where the jury was presented evidence by the government based on its appraisal that the landowner was entitled to $85,500. The landowner's real estate broker testified that the difference in the before-and-after value of the land was $331,840. At the beginning of the trial, the town filed a motion in limine to prevent the introduction of testimony by the real estate broker and the landowner's son, contending that neither witness was competent to provide testimony to the court. The court denied the motion after requiring each witness to be subjected to voir dire examination by the town's attorneys. After the jury returned a verdict, the town filed motions for a new trial and judgment notwithstanding the verdict. The court denied the motions and entered judgment, including an award for the landowner for expert witness fees and prejudgment interest.

Type of action: Land condemnation/eminent domain
Injuries alleged: Taking of 2.32 acres from a 9.48-acre parcel for a water treatment plant
Case name: Town of Hertford v. Harris
Case number: 03-CVS-78
Perquimans County Superior Court
Judge: Hon. J. Richard Parker
Verdict or settlement: Verdict (jury)
Date: June 9, 2008
$428,392 (verdict plus interest to date of judgment)
Experts: George Bright, realtor/broker
Defendant/landowner's attorney: Kenneth C. Haywood of Boxley, Bolton, Garber & Haywood (Raleigh)

Source: North Carolina Lawyers Weekly