Opinion
No. 8628SC296
Filed 16 September 1986
APPEAL by defendants from Lewis (Robert D.), Judge. Order entered 12 November 1985 in Superior Court, BUNCOMBE County. Heard in the Court of Appeals 27 August 1986.
Attorney General Lacy H. Thornburg, by Special Deputy Attorney General Guy A. Hamlin, for plaintiff appellee.
Patla, Straus, Robinson Moore, by Jones P. Byrd, for defendant appellants.
Defendants' property was condemned for the purpose of widening Biltmore Avenue in Asheville, Buncombe County, North Carolina. After plaintiff condemned the property, it prepared and filed a plat showing the areas acquired from defendants. The plat indicated that 1,064 square feet for a new right-of-way, 452 square feet for a temporary slope easement and 446 square feet for a temporary construction easement were taken. Defendants presented evidence that the area taken was greater than that indicated in the plat in that 1,065 square feet of new right-of-way and 1,641 square feet of slope easement were taken for a total of 2,706 square feet. Defendants requested a hearing on the matter pursuant to G.S. 136-108.
The parties stipulated that plaintiff went beyond the area designated as appropriated in the plat. Plaintiff presented evidence which tended to show that although it had physically exceeded the appropriated area, it did so solely to improve access to defendants' remaining property.
Defendants presented evidence which tended to show the following facts. The existing dirt and asphalt that was in place was removed during the construction and the front of the property was regraded in a steeper slope. Plaintiff resloped, regraded, and repaved the 2,706 square foot area and located the steeper slope closer to the building and gasoline pumps on defendants' property making that area less accessible and less desirable. Plaintiff placed a "grassed island" within the 2,706 square foot area and destroyed curbing within that same area. Defendants claim that the business operation located on the premises has been damaged and that plaintiff exceeded the appropriated area without defendants' permission.
The trial court found that the change in the State's original plan by which the grade or the entrance to and exit from the car wash was lowered constituted an improvement of ingress and egress to the property and does not constitute a taking of more property than that described in the plat.
From the order entered in the superior court, defendants appeal.
For the reasons set forth in Dept. of Transportation v. Higdon, 82 N.C. App. 752, 347 S.E.2d 868 (1986), we affirm the order of the superior court.
Affirmed.
Judges EAGLES and PARKER concur.