Browning v. North Carolina State Highway Commission, 394

• Citation: 139 S.E.2d 227,263 N.C. 130
• Decision Date: 16 December 1964
• Docket Number: No. 394,394
• Court: North Carolina Supreme Court
• Parties: Bernice BROWNING v. NORTH CAROLINA STATE HIGHWAY COMMISSION.

Page 227

139 S.E.2d 227

263 N.C. 130

Bernice BROWNING v. NORTH CAROLINA STATE HIGHWAY COMMISSION.

No. 394.

Supreme Court of North Carolina.

Dec. 16, 1964.

Atty. Gen. T. W. Bruton, Asst. Atty. Gen. Harrison Lewis, Trial Atty. Millard R. Rich, Jr., Raleigh, Blackwell, Blackwell, Canady & Eller, Winston-Salem, for defendant appellee Commission.

Elledge & Mast, Winston-Salem, for plaintiff appellant.

DENNY, Chief Justice.

The rather careless and haphazard manner in procuring rights of way, together with the lack of clarity and accurateness in the preparation of right of way agreements by the Commission through the years, has been a source of much litigation.

The court below held that the Commission obtained by purchase from Pernelia C. Browning on 7 April 1949, a right of way 50 feet from the center of Highway 52 as it existed in 1949, and that because of the procurement of such right of way the plaintiff herein is barred fom recovering any damages in connection therewith.

We concur in the ruling of the court below only as to the one-half undivided interest owned by Pernelia C. Browning at the time she executed such right of way agreement.

The purchase of an easement from one co-tenant does not carry with it an easement in the interest of the other co-tenant. Hill v. Glendon & G. Mining & Mfg. Co., 113 N.C. 259, 18 S.E. 171, where this Court said: 'It cannot, we think, be seriously contended that the owners of one undivided fourth of a tract of land, through which a railroad is constructed, can be deprived of their right to have the damages due to them assessed under the provisions of section 1944 by the purchase by the railroad company of the right of one of the other tenants in common.'

There is no question about the right of the Commission to procure by dedication, purchase, prescription or condemnation such rights of way as it may deem necessary for highway purposes.

In this case, it is not contended that the Commission obtained the right of way in controversy by dedication, prescription or condemnation. On the one hand, it claims the right of way by purchase from one of the co-tenants involved, and on the other, on the ground that there was a taking in connection with the 1949 widening and resurfacing project which necessitated that any claim for damages be asserted within six months of the date of the completion of that project.

The facts in this case are substantially different from those in the case of Kaperonis v. North Carolina Highway Commission, 260 N.C. 587, 133 S.E.2d 464. In that case, the deed conveying the property from the predecessors in title to Kaperonis referred to a certain plat which showed an existing 50-foot right of way across the property conveyed, and the plat was made a part of the description. Moreover, the plat was introduced in evidence and identified as the plat referred to and incorporated in the deed. Furthermore, the predecessors in title to Kaperonis had signed a release of claim for damages in consideration of $850.00 paid to them by the Highway Commission, which release was signed upon completion of the project involved in 1929. In our opinion, the evidence in the Kaperonis case was sufficient to have established a right of way by prescription, had the Commission not theretofore purchased the right of way from his predecessors in title.

In the instant case, there is no evidence on the record tending to show that the Commission ever authorized the procurement of a 100-foot right of way in connection with the widening and repaving project in 1949, as there was in the Kaperonis case. There is evidence that the plans and specifications called for a 100-foot right of way. Even so, there is no evidence tending to show that the plans and specifications for the 1949 project were available to the plaintiff or anyone else, other than the contractors and the Highway officials and employees. There is evidence tending to show that a map was posted in the courthouse in Forsyth County, which map showed a 100-foot right of way thereon. But there is no evidence as to who posted the map, when it was posted, or how long it remained posted, except the evidence with respect thereto by one of the Commission's engineers who testified that he saw the map while it was posted sometime in 1949.

In the case of Penn v. Carolina Virginia Coastal Corp., 231 N.C. 481, 57 S.E.2d 817, which was an action to recover compensation for property alleged to have been taken pursuant to the condemnation law of North Carolina, it is said: '* * * '(T)aking' under the power of eminent domain may be defined as entering upon private property for more than a momentary period, and, under warrant or color of legal authority, devoting it to a public use, or otherwise informally appropriating or injuriously affecting it in such a way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof'. 18 Am.Jur. 756, Eminent Domain Sec. 132.

'Moreover, 'what is a taking of property within the due process clause of the Federal and State Constitutions', the text writers say, 'is not always clear, but so far as general rules are permissible of declaration on the subject, it may be said that there is a taking when the act involves an actual interference with, or disturbance of property rights, resulting in injuries which are not merely consequential or incidental'. 18 Am.Jur. 757, Eminent Domain, Sec. 132.'

Ibid., § 144, page 772: 'It is the general rule that a mere plotting or planning in anticipation of a public improvement is not a taking or damaging of the property affected. Thus, the recording of a map showing proposed highways, without any provision for compensation to the landowners until future proceedings of condemnation are taken to obtain the land, does not constitute a taking of the land, or interfere with the owner's use and enjoyment thereof. No damages are collectible until a...