The appellants made thirty-five assignments of error in the record on this appeal. Decision in this case requires discussion of the following questions of law raised by the assignments of error.
(1) Appellants’ original petition did not include -tract No. 3, the *383 6.72 acres lying east of Knollwood Street and south of the Easement. Respondent moved before the Clerk to have this portion of the land included in the proceeding. The Clerk denied the motion and respondent excepted. The motion was heard in Superior Court preliminary to the trial. The judge made an order .adding tract No. 3 to the proceeding and adjudging, in effect, that the whole property, 46.86 acres, “is properly to be included for consideration in the assessment of damages and offsetting general and special 'benefits, if any . . .”
Appellants contend that the Expressway crosses no part of tract No. 3, that it is separated from tract No. 2 by the Basement, that a portion of it is zoned for business while the other tracts are zoned for residences, and that the inclusion thereof was prejudicial to them. On the other band, appellee contends that tracts 2 and 3 are logically a single tract crossed only by a private easement, that the portion immediately south of the Easement has the same zoning classification as tract No. 2, that ifche portion zoned for business is only a small area of about 2 acres abutting оn South Stratford Road, and that a fair assessment of damages and benefits requires that the entire tract be considered.
It must he assumed that the respondent desired the inclusion of tract No. 3 because it proposed to offer evidence that this portion was benefited by the Expressway. It is evident that petitioners desired it excluded for the reason that, in their opinion, they could show no substantial damage to this area by construction of the Expressway.
Where a portion of a tract of land is taken for highway purposes, the just compensation to which the landowner is entitled is the difference between the fair market value of the property
as a whole
immediately before and immediately aftеr the appropriation of the portion thereof. In arriving at this difference consideration must be given to the general and special benefits accruing to the landowners with respect to the land not taken. That difference includes everything which affects the value of the property taken in relation to the
entire
property affected.
Gallimore v. Highway
Commission,
The question is: Was the 6.72 acres, tract No. 3, such an affected part of the whole tract as to require its inclusion in order to determine what was just compensation?
“It is well settled that when the whole or a part of a particular tract of land is taken for the public use, the owner of such land is not entitled to compensation for injury to other separate and independent parcels belonging to him which results from the taking.” Nichols on Eminent Domain (3rd Edition), sec. 14.3, p. 426;
Sharp
*384
v. United States,
Ordinarily the question, whether two or more parcels of land constitute one tract for the purpose of assessing damages for injury to the portion not taken or offsetting benefits against damages, is one of law for the court. However, where the doubt is factual, depending upon conflicting evidence, the court may submit issues to the jury under proper instructions. Anno:
In the instant ease the facts are not in dispute.
There is no single rule or principle established for determining the unity of lands for the purpose of awarding damages or offsetting benefits in eminent domain oases. The factors most generally emphasized are unity of ownership, physical unity and unity of use. Under certain circumstances the presence of all these unities is not essential. The respective importance of these factors depends upon the factual situаtions in individual oases. Usually unity of use is given greatest emphasis.
The parcels claimed as a single tract must be owned by the same party or parties. It is not a requisite for unity of ownership that a party have the same quantity or quality of interest or estate in all parts of the tract. But where there are tenants in common, one or more of the tenants must own some interest and estate in the entire tract.
Tyson v. Highway Commission,
The general rule is that parcels of land must be contiguous in order to constitute them a single tract for severance damages and benefits.
*385
But in exceptional oases, where there is an indivisible unity of use, owners have been permitted to include parcels in 'Condemnation proceedings that are physically separate and to treat them >as a unit. It is generally' held that parcels of land separated by an established city street, in use by the public, are separate and independent as a matter of law.
Todd v. Railroad Co., 78
Ill. 530 (1875);
Wellington v. Railroad Co.
(Mass. 1895),
As indicated above, the factor most often applied and controlling in determining whether land is a single tract is unity of use. Regardless of contiguity and unity of 'ownership, ordinarily lands will not be considered a single tract unless there is unity of use. It has been said that “there must be such a connection or relation of adaptation, convenience, and actual and permanent use, as to make the enjoyment of the parcel taken reasonably and substantially necessary to the enjoyment of the parcel left, in .the most advantageous and profitable manner in the business for which it is used.”
Peck v. Railway Co.
(1887),
For a full discussion, exhaustive annotation and citations of authority with respect to the principles of law set out in the four preceding paragraphs, see
In the instant case, we are of the opinion, and so hold, that the court was correct in including the 6.72-a'ore segment, tract No. 3, in the petition for consideration in the assessment of damages and offsetting benefits. There was unity of ownership and it was so stipulated. It was also stipulated that petitioners acquired the 46.86 acres in a single transaction. There wаs physical unity of tracts 2 and 3. It was divided, only by -a private easement of right of way, the fee to which was retained subj ect fo the use of the right of way. No actual present use was being made of the tracts at the time of the taking. The petitioners were holding the land for possible future ©ale for subdivision or for future sale of lots. The tracts constituted a reasonably compact area of the same type of land. Both segments were reasonably necessary and related to the proper and best use by the owner of the land taken. The contention of appellants with respect to zoning takes into consideration possible future use and ought not to foe regarded on this point under pertinent rules of law. Yet, it should foe observed that the land immediately to the south of the easement was given the same “residence” classification as the land to the north of the easement. The portion zoned for business is at the extreme south end of tract No. 3 and 'Constitutes less than one-third of its area.
The law will not permit a condemnor or a condemnee to “pick and choose” segments of a tract of 'land, logically to be considered as a unit, so as to include parts favorable to his claim or exclude parts unfavorable.
(2) After the taking of the land for 'the Expressway, petitioners caused a civil engineer to malee two maps of the 46.86 acres. One mаp shows a residential subdivision containing streets and 86 building lots. This map- does not show the Expressway and is made with *387 out reference thereto. The other map shows the Expressway, streets and 62 lots. The area fronting on South Stratford Road and which had been zoned for 'business is shown on both maps but is not subdivided. This area 'contains slightly more than 2 acres. The property itself was not actually subdivided on the ground.
These maps were identified 'at the trial and petitioners offered them in evidence as substantive evidence of practical residential subdivisions in conformity with those adjoining the property and to show that the land was capable of being subdivided into residential lots. Upon objection the court refused to admit the maps as substantive evidence. Petitioners excepted. An expert realtor later testified that petitioners’ property, immediately before and immediately after the taking, was capable of and adaptable to practical residential subdivision of a high type. The court then admitted the maps in evidence to illustrate and explain the testimony of the witness.
During the course of the trial petitioners sought to elicit from certain of their witnesses testimony as to the value of the property before and after the taking based on the number of lots and the value per lot, less estimated cost of .subdividing and developing. Upon objection this testimony was excluded. Petitioners excepted.
When a governmental agency takes or appropriates private property for public use, the law imposes upon it a correlative duty to malee just compensation to the owner of the property appropriated.
Sale v. Highway Commission,
But the fair market value of the lands of petitioners immediately before the taking was not a speculative value based on an imaginary subdivision and sales in lots to many purchasers. It was the fair market value of the lands as .a whole in its then state according to the purpose or purposes for which it was then best аdapted and in accordance with its best and highest capabilities.
Petitioners’ lands at the time of the taking consisted of fields and woodlands. They are situated within the city limits of Winston-Salem and surrounded by high-type residential properties and valuable business areas. It would be manifestly unfair to appraise them merely as agricultural lands and forests. In valuing property taken for public use, the jury is to take into consideration “not merely the condition it is in at .the time and the use to which it is then applied by the owner,” but must consider “all of the capabilities of the property, and all of the uses to which it may be applied, or -for which it is adapted, which affect its value in the market.”
Light Co. v. Moss, supra
(
But the value to -be placed on land taken under the right of eminent domain must not be 'Speculative or based on imaginary situations. The uncontradicted testimony in the instant case is that the best and highest capabilities of petitioners’ land was for subdivision into lots, a small part for business, the greater part for residences. “It is well .settled that if land is so .situated that it is actually available for building purposes, its value for such purposes may be considered, even if it is used as a farm or is covered with brush and boulders. The measure of compensation is not, however, the aggregate of the prices of the lots into which the tract could be best divided, since the expense of «leaning off -and improving the land, laying out streets, dividing it into lots, advertising and selling the same, and holding it and paying taxes and interest until all of the lots are disposed of
*389
cannot be ignored and is too uncertain and conjectural to be computed.” Nichols on Eminent Domain (3rd Edition), Vol. 4, section 12.3142 (1), pp. 107-109. It is proper to show that a particular tract of land is suitable and available for division into lots and is valuable for that purpose, but it is not proper to show the number and value of lots as separated parсels in an imaginary subdivision thereof. In other words, it is not proper for the jury in these cases to consider ■an undeveloped tract of land as though a .subdivision thereon -is an accomplished fact. Such undeveloped property may not be valued on a per lot basis. The cost factor is too speculative. See Law of Eminent Domain—Lewis (3rd Edition), Vol. 2, section 707, p. 1236; 18 Am. Jur., Eminent Domain, sec. 347, p. 991; 29 C.J.S., Eminent Domain, sec. 160, pp. 1027-8;
Land Co. v. Traction Co.,
In
Ayden v. Lancaster,
In estimating the fair market value of land before and after the appropriation of a portion thereof for public use, all the capabilities of the property, and all the uses to which it may be applied, or for which it is adapted, which affect its value in the market .are to be considered. In short, everything which affects the value of the property taken in relation to the entire property affected must be considered, for compensation must be full and complete. But all the factors affecting value must be considered only with respect to their effect upon the fair market value of the property, as of the time immediately before and immediately after the taking in the then state of the property taken as a whole.
Gallimore v. Highway Commission, supra,
and cases
*390
there cited. The Court in
Land Co. v. Traction Co., supra,
(
It is manifest that the court was correct in excluding testimony as to value of the land based, on supposed subdivisions and the sale of lots at an estimated price per lot after deducting an estimated cost per lot for development. Such a method of valuation is too speculative and remote. The question is: What was the fair market value of the property as a whole in its then state for future subdivision?
“Any evidence which aids the jury in fixing a fair market value of the land, and its diminution by the burden put upon it, is relevant . . .”
Abernathy v. R. R.,
The court properly excluded the maps as substantive evidence.
As stated above, they were properly admitted to illustrate and explain the pertinent testimony. The petitioners bad the full benefit of the maps upon those phases of the case to which they properly pertained.
(3) Over the objection of the petitioners, witnesses for the respondent were permitted to testify that there was .-a reasonable probability that a part of petitioners’ land would be rezoned by the City and changed from “residence” to “business” property in the near future. One witness testified that “all petitions for rezoning that have been made in this area had been allowed by the planning board.”
On this question, the court instructed the jury as follows: “In ■arriving at your verdict as to the fair market value of the property yоu may hake into consideration the reasonable probability of a change of the zoning ordinance in the near future and the influence that that circumstance might have on the value of the land.”
Our Court has never passed upon this question directly, but in
Power Co. v. Power Co., supra,
(
The weight of authority in other jurisdictions is well declared as follows: “As stated in
Beverly Hills v. Anger
(1932),
The principle is well stated in
Board of Education v. 13 Acres of Land
(Del. 1957),
But an expert witness, after testifying to the reasonable probability of rezoning, may not give an opinion as to the worth of the property for business. He may only consider the influence of the probability on value in giving his opinion of the worth of the property.
School District v. Stewart
(Cal. 1947),
In the instant case several of petitioners’ witnesses on cross-examination testified without objection that they had taken into consideration the reasonable probability of rezoning in placing a value on the property. So, in any event, the objections were waived.
Price v. Gray,
(4) Prior to or about the time of the taking of petitioners’ property for the Expressway, respondent bought a 13.2-acre right of way immediately adjoining petitioners’ property to the east and paid therefor the sum of $300,000.00. Counsel for petitioners, on direct examination, asked their witness: “I’ll ask you if you know that approximately 13 acres of land were sold . . . abutting on the east side of this property right here, on or about April 10, 1956, for $300,000.00?” Upon objection the witness was not permitted to answer. He would have responded in the affirmative had he been per *393 mitted to answer. In the absence of .the jury the court heard the contentions of counsel with respect to the 13.2-acre tract and the competency of the evidence sought to be elicited.
Later in the trial an expert realtor, who was testifying for the respondent and who had previously made an appraisal for the owners of the 13.2-acre tract, was asked on cross-examination by counsel for petitioners the following question: “Now, Mr. Minish, you yourself appraised, approximatеly 13 acres of property directly east of this property and abutting on this property for $300,000.00 didn't you?” Objection to the question was sustained. If permitted to answer the witness would have testified: “I was the agent for the owner of the property facing both sides of Stratford Road . . . and the 13.2-acres was appraised at $300,000.00 by me.”
In the absence of the jury the court heard evidence and contentions of counsel with respect to the 13.2-acres. The evidence tended to show .the following facts. The portion of petitioners’ property taken for the Expressway was all zoned for residences. A small portion of the 13.2-acre tract was zoned for residential purposes, the remainder for business and commercial purposes. The 13.2-acre tract included 1027 feet of frontage on both sides of South Stratford Road; one side was zoned for business, the other for commercial purposes. Comparatively the witness had appraised the business and residential property on the 13.2 acres higher .than on petitioners’ land, on a foot front and acreage basis.
Counsel for petitioners stated that the question on cross-examination was for the purpose of impeaching the witness, and that they did not desire to show that respondent bought the 13.2-acre tract or what the respondent paid for it. He further stated: “All we want to do is ask him the total amount, and let him break it down.”
The court ruled that the 13.2 acres and petitioners’ lands were not comparable tracts and that the witness would not be permitted to testify to the total appraised value placed by the witness on the 13.2 acres, but that the witness might testify to the comparative values per acre of residential property and the comparative values .per foot front of business property he had placed on the 13.2-acre tract and petitioners’ property, respectively, and give his reasons therefor.
Upon return of the jury to the courtroom the witness was cross-examined briefly concerning the 13.2-acre, tract. The gist of the testimony elicited was that he appraised the residential prоperty of the 13.2-acre tract at “considerably more than $3000.00” per acre. *394 He toad previously testified that he appraised the residential property of petitioners’ lands at $3000.00 per acre.
It is held in most jurisdictions that the price paid at voluntary sales of land similar to condemnee’s land at or about the time of the talcing is admissible as independent evidence of the value of the land taken. But the land must be similar to the land taken, else tire evidence is not admissible on direct examination. Actually no two parcels of land are exactly alike. Only such parcels may be compared where the dissimilarities are reduced to a minimum and allowance is made for suсh dissimilarities. Nichols on Eminent Domain (3rd Edition), Vol. 4, section 12.311(3), pp. 55, 59;
Belding v. Archer
It is within the sound discretion of .the trial judge to determine whether there is a sufficient similarity to render the evidence of the sale admissible. It is the better practice for the judge to hear evidence in the absence of the jury as a basis for determining admissibility. Anno:
In the instant case the court was correct in excluding evidence on direct examination of the sale of the 13.2 acres of land adjacent to petitioners’ land. The lands were markedly dissimilar in nature, condition, and zoning classification, and the court’s ruling will not be disturbed.
“One of the most jealously guarded rights in the administration of justice is that of cross-examining ian adversary’s witnesses. . . . (C)ro'ss-examination may be made to serve three general purposes: (1) To elicit further details of the story related on 'direct examination, in the hope of presenting a complete picture which will be less unfavorable to the cross-examiner’s case; (2) to bring out new and different facts relevant to the whole case; (3) to impeach the witness, or cast doubt upon his credibility.” North Carolina Evidence (Stansbury), pp. 54, 56, 57. “The right to have an opportunity for a fair 'and full cross-examination of a witness upon every phase of his examination-in-chief, is an absolute right and not a mere .privilege.”
Milling Co. v. Highway Commission,
The majority rule is that an expert witness may be questioned on cross-examination with respect to the .sales prices of nearby property to test his knowledge of values and for the purpose of impeachment, but not for the purpose of fixing value. This is especially true if the witness used such sales as a basis for his appraisal of the property taken, or if he had actually appraised the property sold. Nichols on Eminent Domain (3rd Edition), Vol. 4, section
*395
12.311(3), p. 40; Orgel on Valuation under Eminent Domain (2d Edition), Vol. 1, section 145, p. 612-3;
Railway Co. v. Southern Pacific Co.
(Cal. 1936),
The North Carolina Court has not decided the point directly. There is -an indication that this Court does not rigidly follow the majority rule. In
Highway Commission v. Privett,
It is not competent to cross-examine with reference to the sale price of a parcel of land where the price was fixed by a compromise judgment.
Power & Light Co. v. Sloan,
*396 In the instant case counsel for petitioners disclaimed any intention to cross-examine with respect to the sale of the 13.2-acre tract to respondent or the price paid therefor by respondent. Indeed the question on cross-examination of the witness Minish was whether he had appraised the tract for $300,000.00.
It has been held that where the witness appraised the adj acent land, he shall bе required on cross-examination to state what he appraised it for, but that no reference should be made to a sale thereof to con-demnor or to the price paid by condemnor. U. S. v. Foster, supra.
The Court might well have permitted the witness to answer the question. But it does not appear to us that the failure to do so wa-s prejudicial to the petitioners. Because of the dissimilarity of the tracts, testimony adduced thereby was incompetent on the question of value. The total appraisal value placed on the land by the witness would not of itself have impeached the witness or have shown lack of knowledge of values in the vicinity. It was apparent upon examination of the witness on -the
voir dire
that he had appraised the business and residential property in the 13.2-acre tract on a front foot and acreage basis at a higher value than petitioners’ land. The court ruled that he might be fully cross-examined as to these matters. Petitioners did not avail themselves of this opportunity. The conclusion is inevitable that petitioners desired only to get the $300,000.00 figure before the jury to induce thereby a liberal award. This within itself would violate the applicable rule of evidence, since such evidence under the circumstances cannot be considered on the question of value.
Ziegler v. Sypher
(Mich. 1944),
We have carefully examined and considered the other assignments of error and the contentions of appellants with respect .thereto. Prejudicial error has not been made to appear.
In Re Gamble,
No error.