North Carolina State Highway Commission v. Nuckles, 688
| Decision Date | 24 July 1967 |
| Docket Number | No. 688,688 |
| Citation | 155 S.E.2d 772,271 N.C. 1 |
| Court | North Carolina Supreme Court |
| Parties | NORTH CAROLINA STATE HIGHWAY COMMISSION v. Arnold H. NUCKLES and wife, Elsie P. Nuckles, R. D. Douglas, Jr., Trustee,Home Federal Savings and Loan Association, George W. Gordon, Trustee for JuliusM. Ozment and wife, Clara C. Ozment, Julius M. Ozment and wife, Clara C.Ozment, George W.Gordon, Trustee for H. L. Welborn, H. L. Welborn, the Texas Company, acorporation, American Commercial Bank, and Roy M. Booth, Trustee. |
T. W. Bruton, Atty. Gen., Harrison Lewis, Deputy Atty. Gen., T. Buie Costen, Staff Atty., Eugene Shaw, Jr., Associate Counsel, for plaintiff.
Thomas Turner; Seymour, Rollins & Rollins, Geensboro, for Arnold H. Nuckles and wife, Elsie P. Nuckles, defendants.
After the complaint, answer, bill of particulars, and plat were filed, it was revealed that, as to each of defendants' four tracts of land, there were two basic issues: (1) What land and appurtenances thereto, if any, was plaintiff taking in this action, and (2) what was just compensation for the property taken. With reference to (1), G.S. § 136--108 provides:
'Determination of issues other than damages.--After the filing of the plat, the judge, upon motion and ten (10) days'
notice by either the Highway Commission or the owner, shall, either in or out of term, hear and determine any and all issues raised by the pleadings other than the issue of damages, including, but not limited to, if controverted, questions of necessary and proper parties, title to the land, interest taken, and area taken.'
Defendants moved, under G.S. § 136--108, that the judge determine question (1), and, on 27 May 1965, Judge McLaughlin made that determination. He adjudged that plaintiff was taking from tracts 1 and 2 the shaded areas shown on the map; tract A; and all of tract 3 (including tract B), except that portion covered by the paved southbound lane of No. 29, which is shown in white on the map. Judge McLaughlin had the authority to determine these issues. Kaperonis v. North Carolina State Highway Commission, 260 N.C. 587, 133 S.E.2d 464. In addition to just compensation for the taking of these tracts, he decreed the defendants were entitled to any damages which had resulted to tract 4 from loss of access to U.S. 29.
Plaintiff's appeal and assignments of error relate only to Judge McLaughlin's findings of fact and conclusions of law as contained in his order determining issues other than damages. G.S. § 136--119 provides that, when the State Highway Commission condemns property under Article 9, Chapter 136 of the General Statutes of North Carolina, either party in the proceeding 'shall have a right of appeal to the Supreme Court for errors of law committed in any (of the) proceedings provided for in this article in the same manner as in any other civil actions * * *.' Appeals in civil actions are governed by G.S. § 1--277, which permits an appeal from every judicial order involving a matter of law which affects a substantial right. Ordinarily, an appeal lies only from a final judgment, but an interlocutory order which will work injury if not corrected before final judgment is appealable. Steele v. Moore Flesher Hauling Co., 260 N.C. 486, 133 S.E.2d 197. ' (A) decision which desposes not of the whole but merely of a separate and distinct branch of the subject matter in litigation' is final in nature and is immediately appealable. 4 Am.Jur.2d, Appeal and Error § 53 (1962).
Judge McLaughlin's order established that, before the institution of this action, the only right-of-way which plaintiff had over defendants' land was the 24-foot lane of No. 29, which was paved in 1949. It, therefore, affected plaintiff's substantial rights. After it was filed, Judge McLaughlin's adjudication became the law of the case until reversed on appeal. It was immediately appealable, and--if plaintiff was unwilling to abide by it--plaintiff was required to give timely notice of appeal and to docket its appeal by 10:00 a.m. on Tuesday 26 October 1965. Rules of Practice in the Supreme Court of North Carolina, 5 and 17. Instead, plaintiff proceeded to trial upon the issue of damages and docketed its appeal with that of defendants at the Fall Term 1966.
Immediate appeal was the procedure followed in Johnson v. North Carolina State Highway Commission, 259 N.C. 371, 130 S.E.2d 544, a case involving a situation similar to this one. In Johnson, plaintiff landowners sued the Highway Commission for damages for an alleged taking of their property in relocating a highway. By answer, the State Highway Commission alleged, as here, that it owned a previously existing right-of-way over plaintiffs' property and that it was taking only an additional .15 acre. After a hearing under G.S. § 136--108, the court adjudged that .15 acre was all the additional land the Highway Commission was taking in the relocation project. Upon plaintiffs' appeal, we found error and remanded the case with no question raised as to his right of immediate appeal. In State Highway Commission v. Raleigh Farmers Market, 263 N.C. 622, 139 S.E.2d 904, the landowner appealed from an adjudication made under G.S. § 136--108 that it was entitled to compensation only for
land taken and that its loss of access to U.S. Highway 1--A was not compensable. The court, noting that the question whether the appeal was premature had not been raised, reversed the ruling that defendant was not entitled to damage for its loss of access, and remanded the case for the assessment of all damages.
One of the purposes of G.S. § 136--108 was to eliminate from the jury trial any question as to what land the State Highway Commission is condemning and any question as to its title. Therefore, should there be a fundamental error in the judgment resolving these vital preliminary issues, ordinary prudence requires an immediate appeal, for that is the proper method to obtain relief from legal errors. G.S. § 1--277. It may not be obtained by application to another Superior Court judge. A judgment entered by one Superior Court judge may not be modified, reversed, or set aside by another. Nowell v. Neal, 249 N.C. 516, 107 S.E.2d 107.
Obviously, it would be an exercise in futility, completely thwarting the purpose of G.S. § 136--108, to have the jury assess damages to tracts 1, 2, 3, and 4 if plaintiff were condemning only tracts A and B, and the verdict would be set aside on appeal for errors committed by the judge in determining the 'issues other than damages.' As Bobbitt, J., said in Carolina Power & Light Company v. Creasman, 262 N.C. 390, 397, 137 S.E.2d 497, 502, 'A controversy as to what land a condemnor is seeking to condemn has no place in a condemnation proceeding.' For failure to perfect its appeal within the time required by our rules, plaintiff's appeal is dismissed.
In dismissing plaintiff's appeal, we deem the following comments pertinent: Notwithstanding evidence to the contrary, Judge McLaughlin's findings of fact were all supported by competent evidence. They are, therefore, conclusive on appeal. North Carolina State Highway Com. v. Brann, 243 N.C. 758, 92 S.E.2d 146; McIntosh, North Carolina Practice and Procedure § 1782(6) (2d Ed., 1956). Furthermore, his findings support his legal conclusions. Browning v. North Carolina State Highway Commission, 263 N.C. 130, 139 S.E.2d 227. The finding that under previous projects plaintiff had taken only the 24-foot strip which it had paved rendered a plea of the applicable statute of limitations (G.S. § 136--19 as it read prior to 1 July 1960) immaterial, since defendants sought no compensation for the original 24-foot right-of-way. G.S. § 136--19 was a statute of limitations 'rather than a condition precedent.' Lewis v. North Carolina State Highway & Public Works Comm., 228 N.C. 618, 620, 46 S.E.2d 705, 707. In all events, however, the judge's refusal to permit plaintiff to plead the statute a year and a half after the pleadings were filed was a matter entirely within his discretion and not reviewable. 3 Strong, N.C. Index, Pleadings § 24 (1960).
With reference to tracts 1 and 2, plaintiff's theory of this action seems to have been this: In 1948--1949, under Projects 54 & 55, it had acquired a 250-foot right-of-way over defendants' rectangular tract even though it had paid them nothing. Because of the lapse of time, defendants could recover nothing from plaintiff for it in this action. Their only right to compensation was for the two small triangles A and B, worth (according to plaintiff's evidence at the trial) not over $788.00. Yet at the time of the institution of this action, plaintiff deposited in court as its estimate of just compensation $31,709.00
The dismissal of plaintiff's appeal also makes it unnecessary to decide (1) whether G.S. § 47--27 applied to the State Highway Commission prior to its 1 July 1959 amendment, or (2)--if it did--what the effect of Exhibit 9 would have been had it been recorded. G.S. § 47--27 makes deeds and conveyances of easements and rights-of-way invalid as to creditors and purchasers for value prior to recordation. The amendment involved makes this section expressly applicable to the Highway Commission.
The first question was debated in the briefs. Plaintiff contends that before 1 July 1959 it was not required to register any deed or agreement for a right-of-way or easement. Defendants contend that by the amendment, the legislature merely made explicit that which was already implicit in the statute and was attempting to force the Highway Commission to comply with the registration laws. They also point out that land titles would have been in an uncertain state, and the public policy with reference to registration frustrated, if the State and all its agencies were not required to record the conveyances under which they claim title to an interest in land. Plaintiff cites Browning v. North Carolina State...
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...which constitutes a Final adjudication, even when that determination disposes of only a part of the lawsuit. In Highway Commission v. Nuckles, 271 N.C. 1, 155 S.E.2d 772 (1967), the Highway Commission sought to condemn property of defendants. There were two issues presented to the trial cou......
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