dissenting in part.
I concur in that portion of the majority opinion which holds that the trial court erred in finding that tracts C and D were part of the area affected by the taking of defendants’ property. I respectfully dissent, however, from that portion of the majority opinion holding that N.C. Gen. Stat. § 136-112(1) violates “both the constitutional requirement of just compensation and the constitutional requirement of equal protection . . . .”
*346I.
With regards to the constitutionality of N.C. Gen. Stat. § 136-112(1), most of the arguments now advanced by the defendants were not made in the trial court and are not properly before us on this appeal. See State v. King, 342 N.C. 357, 364, 464 S.E.2d 288, 293 (1995); State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988). In their “Answer, Motions and Counterclaim,” defendants allege as a First Defense “[t]hat N.C. Gen. Stat. § 136-112(1), insofar as it provides that the measure of damage be determined ‘with consideration being given to any special or general benefits resulting from the utilization of the part taken for highway purposes,’ ” denies the defendants just compensation in violation of Article I, Section 19, of the North Carolina Constitution (“law of the land” provision); Amendment V to the United States Constitution (“just compensation” provision); and Amendment XIV to the United States Constitution (“equal protection” and “due process of law” provisions).
At a pretrial hearing pursuant to N.C. Gen. Stat. § 136-108, the defendants argued there were two bases for their constitutional challenge to N.C. Gen. Stat. § 136-112(1). Defendants first made an equal protection argument, contending that just compensation for a partial taking of property is calculated under two different statutory schemes: one for property owners whose lands were condemned by the Department of Transportation (DOT) pursuant to the provisions of Chapter 136, and the other for property owners whose lands were condemned by private and local public condemnors pursuant to the provisions of Chapter 40A of the General Statutes. In determining the issue of damages under the provisions of N.C. Gen. Stat. § 136-112(1), the finder of fact is to consider “general and special benefits” to the portion of the lands not taken, while under N.C. Gen. Stat. § 40A-64(b) no such consideration is mandated. Defendants argued to the trial court that since the measure of compensation was different depending on the identity of the condemning authority, landowners whose property was condemned were treated differently and thus deprived of equal protection. Defendants also stated prior to their argument on this point that their “constitutional attack on the benefits portion of Chapter 136 ... is based very simply on this premise . . . .” (Emphasis added.)
The second argument made by defendants was that DOT acted arbitrarily and capriciously in failing to offer any compensation to defendants, treating these defendants in a different manner than other nearby landowners — such as Martin Marietta — who had been *347paid compensation by DOT. That contention was properly overruled by the trial court due to an absence of evidence of arbitrariness or caprice by DOT, and is not before us at this time.
Further, two of defendants’ Assignments of Error relate to the constitutional question raised by defendants. They are:
3. The Trial Court’s denial of Defendants’ constitutional defenses on the grounds that G.S. 136-12(1) [sic] violates the equal protection provisions of the United States and North Carolina Constitutions.
4. The Trial Court’s allowing the Jury to consider the benefit to Defendants’ property in making its determination as to damages recoverable by the Defendants for the taking in that this violated Defendants’ rights to equal protection under the United States and North Carolina Constitutions.
Even according a generous interpretation to the Assignments of Error, it is obvious that defendants have not preserved and brought forward a constitutional challenge based on a due process argument. Further, a unanimous panel of this Court has recently squarely rejected such an argument in Dept. of Transportation v. Mahaffey, 137 N.C. App. 511, 528 S.E.2d 381 (2000) (“[S]ection 136-112 does not violate the federal Due Process Clause. It, therefore, follows our state constitution ‘law of the land’ clause is not violated.”)
At most, then, defendants have brought forward (1) the equal protection argument they advanced below centering on the different measures of damages for landowners whose property is taken under Chapter 136 and those whose property is taken under Chapter 40A; and (2) an argument that the trial court erred in allowing the jury to consider the “special and general benefits” to defendants’ property in determining damages. Thus, much of the majority opinion deals with questions of constitutional law which are not properly before us, and declares section 136-112(1) unconstitutional based on theories not advanced before the trial court. “[A] constitutional question which is not raised and passed upon in the trial court will not ordinarily be considered on appeal.” State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982).
II.
The constitutional issue which is properly before us is whether the equal protection provisions of the Constitutions of the United *348States and the State of North Carolina are violated by the different damages schemes found in sections 136-112(1) and 40A-64(b).
A sovereign state has the inherent power to take the property of its citizens for public use. The exercise of that power is limited, however, by constitutional guarantees of due process and payment of “just compensation” for the property taken. State v. Club Properties, 275 N.C. 328, 334, 167 S.E.2d 385, 388 (1969). In Chapter 136 of our General Statutes, our General Assembly confers the right of eminent domain on DOT, and sets out the method for determining just compensation for the property taken. N.C. Gen. Stat. § 136-103, et seq. Where an entire tract is taken, the measure of damages is “the fair market value of the property at the time of taking.” N.C. Gen. Stat. § 136-112(2) (1999). Where only a portion of a tract is taken, as in the case before us,
the measure of damages for said taking shall be 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. Gen. Stat. § 136-112(1) (1999) (emphasis added). The burden of proof on the existence and amount of such special or general benefits is on DOT. Board of Transportation v. Rand, 299 N.C. 476, 480, 263 S.E.2d 565, 568 (1980). Defendants here contend that allowing the jury to consider the benefits to the remainder of their property affected by the taking violates their right to equal protection under the law. Defendants stress that where property is condemned by a private condemnor or a local public condemnor pursuant to the provisions of Chapter 40A of the General Statutes, a different method of determining damages is mandated. N.C. Gen. Stat. § 40A-64(b) provides that
[i]f there is a taking of less than the entire tract, the measure of compensation is the greater of either (i) the amount by which the fair market value of the entire tract immediately before the taking exceeds the fair market value of the remainder immediately after the taking; or (ii) the fair market value of the property taken.
Our Supreme Court set out in Texfi Industries v. City of Fayetteville, 301 N.C. 1, 269 S.E.2d 142 (1980), the traditional two-*349tiered “scheme of analysis when an equal protection claim is made.” Id. at 10, 269 S.E.2d at 149. First,
[w]hen a governmental act classifies persons in terms of their ability to exercise a fundamental right, or when a governmental classification distinguishes between persons in terms of any right, upon some “suspect” basis, the upper tier of equal protection analysis is employed. Calling for “strict scrutiny”, this standard requires the government to demonstrate that the classification is necessary to promote a compelling governmental interest.
Id. at 11, 269 S.E.2d at 149 (citations omitted). I do not find evidence here that the defendants are members of a class which is “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command particular consideration from the judiciary.” Id. Nor do I find an infringement of the defendants’ constitutionally guaranteed right to just compensation for property taken for a public purpose. “Just compensation” is not defined in either our Constitution or that of the United States, but is left to the sound discretion of state legislatures. Our General Assembly has set out in N.C. Gen. Stat. § 136-112 the method for determining just compensation where property is taken by DOT.
Moving then to the second tier of the analysis, the question becomes whether N.C. Gen. Stat. § 136-112 bears a rational relationship to a legitimate governmental purpose. “This mode of analysis merely requires that distinctions which are drawn by a challenged statute or action bear some rational relationship to a conceivable legitimate governmental interest.” Texfi, 301 N.C. at 11, 269 S.E.2d at 149.
Clearly, the construction and maintenance of a statewide system of roads is a legitimate public purpose. In the course of development of roads throughout the state, it is inevitable that some privately held property must be taken for public purposes. Our General Assembly has granted the power of eminent domain to DOT. N.C. Gen. Stat. § 136-18 (1999). In the interest of fairness and in satisfaction of constitutional guarantees that just compensation be paid to a citizen whose property is taken for public purposes, the General Assembly has set out in N.C. Gen. Stat. § 136-112 the measure of damages for such taking. All citizens whose property is taken by DOT have their damages measured by the same standard. I find here no *350evidence that defendants have been treated in a different manner than other members of the class of persons affected by condemnation of a part of their property for highway purposes. After careful consideration of defendants’ arguments and contentions, I cannot find any evidence of a violation of their constitutional rights to equal protection, and find support for my opinion in the prior decisions of our Supreme Court.
It has long been settled in North Carolina that it is within the power of the General Assembly to provide that, when only a portion of the landowner’s property is taken in a condemnation action, the trier of fact is to consider both special and general benefits to the remainder of the landowner’s property in determining the amount of just compensation to be paid him. Miller v. Asheville, 112 N.C. 759, 16 S.E. 762 (1893); Wade v. Highway Com., 188 N.C. 210, 124 S.E. 193 (1924); Elks v. Comrs., 179 N.C. 241, 102 S.E. 414 (1920); Bailey v. Highway Commission, 214 N.C. 278, 199 S.E. 25 (1938).
In Miller, our Supreme Court upheld the validity of an Act of our General Assembly providing that both general and special benefits must be considered in assessing landowners’ damages arising from a condemnation of a portion of their property by the City of Asheville. “The Legislature, in conferring upon the corporation [City of Asheville] the exercise of the right of eminent domain, can in its discretion require all the benefits or a specified part of them, or forbid any of them to be assessed as offsets against the damages.” Miller, 112 N.C. at 768, 16 S.E. at 764 (emphasis added). Where the legislature made no such provision, however, the “old” rule applied, and only special damages could be deducted. In R.R. v. Platt Land, 133 N.C. 266, 45 S.E. 589 (1903), after tracing the history of the rule, Justice Connor stated that “in the absence of any express language to the contrary, only special benefits can be deducted from the compensation or damages assessed against the corporation [Southport, Wilmington and Durham Railroad Company].” Id. at 274, 45 S.E. at 592.
In Elks, Chief Justice Clark, who authored the opinion in Miller, again cited the holding of the Supreme Court in Miller that the legislature could “authorize the deduction of general as well as special benefits from the damages assessed, but holding that if the statute does not so provide, only the special benefits will be deducted.” Elks, 179 N.C. at 247, 102 S.E. at 417.
*351In 1923, the General Assembly amended the statutes setting out the measure of damages in condemnations brought by the State Highway Commission, to provide that both “general and special benefits shall be assessed as off-sets against damages . . . Public Laws 1923, Chapter 160, sec. 6. Our Supreme Court, citing Miller with approval, upheld the validity of the change and its application to pending litigation in Wade, 188 N.C. 210, 124 S.E. 193. The Supreme Court remanded Wade to the trial court for a new trial on damages because the trial court only charged the jury to consider the special benefits accruing to the landowner, and did not include the general benefits to the landowner’s remaining property. Id. Again, in Bailey v. Highway Commission, the Supreme Court remanded for a new trial because the trial court did not charge the jury to consider the general benefits to the landowner’s remaining property as an offset against the amount of compensation. 214 N.C. 278, 279, 199 S.E. 25, 26 (1938). See also Kirkman v. Highway Commission, 257 N.C. 428, 433, 126 S.E.2d 107, 111 (1962), and the cases cited therein.
Thus, it appears that for more than a century, our Supreme Court has upheld the doctrine of Miller v. Asheville and the power of the General Assembly to provide that damages in a condemnation case may be offset by special benefits, general benefits, or both special and general benefits. In the exercise of its discretion, the General Assembly has provided for a different measure of damages where property is taken by private condemnors and local public condem-nors under the provisions of Chapter 40A. N.C. Gen. Stat. § 40A-64(b). By contrast, where property is taken by DOT, as here, the jury is to take into account both special and general benefits in determining the issue of damages. N.C. Gen. Stat. § 136-112(1). I do not believe that any equal protection violation arises because of the distinction between the measure of damages in the two statutes. As Chief. Justice Clark explained in Elks:
The distinction seems to be that where the improvement is for private emolument, as a railroad or water power, or the like, being only a ptasi-public corporation, the condemnation is more a matter of grace than of right, and hence either no deductions for benefits are usually allowed, or only those which are of special benefit to the owner, but where the property is taken solely for a public purpose, the public should be called upon to pay only the actual damages, after deducting all benefits, either special or general.
Elks, 179 N.C. at 245, 102 S.E. at 416-17 (emphasis added).
*352I am aware that our sister states have enacted a wide variety of statutory schemes with regard to the measure of damages in condemnation cases, and that many of them do not provide for an offset for special and general benefits against property which remains after a taking. See 3 Nichols on Eminent Domain, § 8A.03, pp. 8A-26 to 8A-29. However, as our Supreme Court has consistently held, that decision is for our legislature, not for this Court. “All the landowner can claim is that his property shall not be taken for public use without compensation. Compensation is had when the balance is struck between the damages and benefits conferred on him by the act complained of. To that, and that alone, he has a constitutional and vested right.” Miller, 112 N.C. at 768, 16 S.E. at 764.
A statute is presumed to be constitutional, so one who challenges its constitutionality has the burden of establishing it. State v. Johnson, 124 N.C. App. 462, 474, 478 S.E.2d 16, 23 (1996), cert. denied, 345 N.C. 758, 485 S.E.2d 304 (1997). I agree with the trial court, which concluded after a hearing “that the defendants have failed to present sufficient evidence to support the constitutional issues raised and the relief requested.”
III.
In their fourth Assignment of Error, defendants argue that the trial court erred in allowing the jury to consider the benefits to their property in determining damages. Although I find no constitutional infirmity in our statutory scheme for measuring damages in a Chapter 136 condemnation action, I also note that defendants did not object to the jury charge of the trial court relating to calculation of damages. Prior to submission of the case to the jury, the trial court held a charge conference and explained to counsel that it would be using section 835.12 of the Pattern Jury Instructions, “which is the eminent domain, partial taking by the DOT and I will include the benefit portion of that charge.” Defendants did not object to the use of the pattern instruction, and asked only that the trial court use section 101.25 on expert witnesses, and section 101.30, dealing with interested witnesses.
The trial court then charged the jury, among other things, that in determining defendants’ damages it might consider “any general or special benefits resulting from the utilization of the part [of the property] taken for public use.” After completion of the charge, the trial court asked counsel in the absence of the jury whether they had objections, changes, additions, or deletions to the charge. Counsel for *353the defendants answered that they did not. It appears that defendants cannot now assign error to any portion of the jury charge, particularly to those portions in which the trial court instructed the jury on the measure of damages. N.C.R. App. P. 10(2).
While I agree that the defendants are entitled to a new trial for reasons set out in our prior opinion in this case, and in Section I of the majority opinion, I dissent from that portion of the majority opinion which would declare N.C. Gen. Stat. § 136-112(1) unconstitutional for reasons not properly before us. In any event, we are not justified in declaring invalid this enactment of our legislature, its unconstitutionality not being “plainly and clearly the case.” Glenn v. Board of Education of Mitchell County, et. al., 210 N.C. 525, 187 S.E. 781 (1936).