DEPARTMENT OF TRANSPORTATION v. JOE C. ROWE and wife, SHARON B. ROWE; HOWARD L. PRUITT, JR. and wife, GEORGIA PRUITT; ROBERT W. ADAMS, trustee; ALINE D. BOWMAN; FRANCES BOWMAN BOLLINGER; LOIS BOWMAN MOOSE; DOROTHY BOWMAN ABERNETHY and husband, KENNETH H. ABERNETHY; MARTHA BOWMAN CAUDILL and husband, JACK CAUDILL; APPALACHIAN OUTDOOR ADVERTISING CO., INC. (formerly Appalachian Poster Advertising Company, Inc.), Lessee; and FLORENCE BOWMAN BOLICK No. 506A98-2 (Filed 20 July 2001) 1. Appeal and Error--preservation of issues--violation of Law of the Land Clause--not argued at trial--no assignment of error--no Court of Appeals argument The Court of Appeals erred by considering whether N.C.G.S. ' 136-112(1) violates the Law of the Land Clause in the North Carolina Constitution in an action arising from the taking of a part of defendants= land where defendants did not argue to the trial court that the Law of the Land Clause was an independent reason to strike down the statute, did not assign error on those grounds in the Court of Appeals, and did not make that argument before the Court of Appeals. 2. Eminent Domain--condemnation of part of tract for highway--measure of damages--equal protection--strict scrutiny The statute which concerns the measure of damages for condemnation of a part of a tract for a highway, N.C.G.S. ' 136-112(1), neither infringes defendants= right to just compensation nor classifies persons on the basis of a suspect characteristic and does not trigger strict scrutiny under the Equal Protection Clauses of the North Carolina or United States Constitution. Although defendant contends that the statute infringes upon the fundamental right to just compensation by allowing consideration of general benefits on the market value of the remaining land, allowing the jury to consider those benefits is in accord with persuasive federal precedent, the consistent practice of the North Carolina Supreme Court, and the purposes underlying the requirement of just compensation. 3. Eminent Domain--condemnation of part of tract for highway--measure of damages--Law of the Land Clause--general benefit to remaining property The Law of the Land Clause of the North Carolina Constitution requires only that a condemnee be indemnified and permits a factfinder to consider Ageneral benefits@ accruing to a condemnee=s remaining property; a benefit is no less real when shared by a condemnee=s neighbor. 4. Eminent Domain--condemnation of part of tract for highway--measure of damages--equal protection--rational basis The statute which concerns the measure of damages for condemnation of a part of a tract, N.C.G.S. ' 136-112(1), does not violate the Equal Protection Clause of the United States or the North Carolina Constitutionon a rational-basis review even though N.C.G.S. ' 40A-64(b) provides property owners in other cases a choice of compensation measures which is not available under N.C.G.S. ' 136-112(1). The General Assembly could have rationally believed that condemnors under Chapter 40A should pay damages using either of the two measures in N.C.G.S. ' 40A-64 because public and private condemnors can offset some of their costs through user fees; furthermore, Chapter 40A governs a huge range of use types, condemning authorities, and circumstances, a drastically different situation from the uniform practice of DOT. Appeal pursuant to N.C.G.S. ' 7A-30(2) from the decision of a divided panel of the Court of Appeals, 138 N.C. App. 329, 531 S.E.2d 836 (2000), on remand from this Court, 351 N.C. 172, 521 S.E.2d 707 (1999), finding error in orders entered 8 May 1997 and 16 May 1997 by Baker, J., and in a judgment entered 17 June 1997 by Hyatt, J., in Superior Court, Catawba County, and ordering a new trial. Heard in the Supreme Court 12 February 2001. Roy A. Cooper, Attorney General, by J. Bruce McKinney, Assistant Attorney General, and T. Lane Mallonee and W. Richard Moore, Special Deputy Attorneys General, for plaintiff-appellant. Lewis & Daggett, Attorneys at Law, P.A., by Michael J. Lewis; and Bell, Davis & Pitt, P.A., by Stephen M. Russell, for defendant-appellees. ORR, Justice. This dispute arose from the North Carolina Department of Transportation=s (ADOT@) decision to build a road connecting U.S. Highway 70-321 to an interchange on Interstate 40 in Catawba County. To acquire land for this project, the DOT exercised its authority under N.C.G.S. ' 136-18 to condemn 11.411 acres of defendants= 18.123-acre tract. As required by statute, the DOT acquired defendants= property by filing a declaration of taking and asking for a determination of just compensation. At trial, the presiding judge instructed the jury as to the requirementsof N.C.G.S. ' 136-112(1), which provides that just compensation is 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. N.C.G.S. ' 136-112(1) (1999). The jury rendered a verdict that defendants were not entitled to any financial compensation for the taking. The verdict reflected that the jury agreed with DOT=s argument that the Ageneral benefits@ to defendants= remaining property from the project exceeded the cost of the loss of acreage. The trial court entered judgment consistent with this verdict, and the defendants appealed. After reviewing the errors alleged by defendants, the Court of Appeals, inter alia, ordered a new trial on two grounds. First, the Court of Appeals held that N.C.G.S. ' 136-112(1) violated the Law of the Land Clause of the North Carolina Constitution. Department of Transp. v. Rowe, 138 N.C. App. 329, 342-43, 531 S.E.2d 836, 845 (2000). The Court of Appeals stated that Aby allowing general benefits to [set off] the fair market value of the remaining land, the statute allows a compensation which is unjust to the condemnee.@ Id. at 342, 531 S.E.2d at 845. Second, the Court of Appeals held that the statute denied defendants equal protection of the law under the North Carolina Constitution. The Court of Appeals decision was based upon the different standards for compensation for condemnees set out in two different statutes. Defendants= compensation was determined under N.C.G.S. ' 136-112(1) because the DOT condemned the property. However, owners of
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