dissenting.
I dissent from that portion of the majority’s opinion which approves the trial court’s instructions to the jury on the *93“reasonable use rule.” Plaintiff’s evidence tended to show that there had been no change in the handling of surface waters as the result of the taking; that any water damage which occurred was not the result of the highway construction, but rather of the backing up of the Swannanoa River downstream or of the backing up of water from an inferior privately constructed culvert located on adjoining lands. The landowner’s evidence, on the other hand, tended to show that the culverting was the cause of flooding and silting on the property remaining after the taking. The jury was instructed that the State would be liable for damages to the landowner for its handling of the surface waters only if its use was unreasonable, or even if reasonable, if the interference with the use of the remaining land was greater than it was reasonable for defendant-appellant to bear. While this is a correct statement of the law with respect to actions between private landowners, I would hold that the “reasonable use rule” of Pendergrast v. Aiken, 293 N.C. 201, 236 S.E. 2d 787 (1977) is inapplicable to condemnation actions in which the issue is the determination of damages rather than liability.
In determining the fair market value of the remaining land where there has been a partial taking, as appears in this case, the landowner is entitled to compensation for injuries accruing to the residue from the taking, which includes damage resulting from the condemnor’s use of the appropriated portion. Light Co. v. Creasman, 262 N.C. 390, 137 S.E. 2d 497 (1964); Board of Transportation v. Brown, 34 N.C. App. 266, 237 S.E. 2d 854 (1977), aff’d per curiam 296 N.C. 250, 249 S.E. 2d 803 (1978). “The landowner who has a part of his tract taken has the burden of proving by competent evidence . . . how the use of the land taken results in damage to the remainder.” Brown, supra at 269, 237 S.E. 2d at 856. In the present case, by instructing the jury that recovery was warranted only if the damage caused to the remaining property was the result of unreasonable use of the surface water, the trial court placed an undue burden on the landowner. The action in Pendergrast, relied upon by the majority, was between private landowners, and the Supreme Court analyzed the issue of liability in terms of the law of nuisance. “Analytically, a cause of action for unreasonable interference with the flow of surface water causing substantial damage is a private nuisance action, . . .” Id. at 216, 236 S.E. 2d at 796. Although not expressly so holding, the *94court in Pendergrast implied that the “reasonable use” rule was henceforth to be applied to governmental authorities in inverse condemnation actions. Assuming arguendo that it is so applicable, it does not necessarily follow that it is applicable in formal condemnation proceedings. The essential inquiry in an inverse condemnation action is whether there has been a taking in fact, although formal condemnation proceedings have not been instituted. Charlotte v. Spratt, 263 N.C. 656, 140 S.E. 2d 341 (1965). That is, the jury must determine whether liability exists. In a formal condemnation action such as is involved here, the issue for determination by the jury is not liability, but rather, damages. Prior to the decision in Pendergrast, the law was clear that a con-demnee was entitled to have the jury consider as an element of compensation water damage resulting from the taking of a portion of a tract of land and its use for the diversion of surface waters. See, Highway Commission v. Phillips, 267 N.C. 369, 148 S.E. 2d 282 (1966); Highway Commission v. Yarborough, 6 N.C. App. 294, 170 S.E. 2d 159 (1967). The proper inquiry for the jury here should not have been whether the State’s use of the surface waters was so unreasonable as to constitute a taking, but rather, given the fact of a physical taking, whether the water damage was the result of the State’s use of the land taken. See Brown, supra.
For the reasons stated, I would reverse the trial court and remand for new trial on the issue of the State’s handling of the waters of Gashes Creek.