Pelham Realty Corp. v. Board of Transp.

• Decision Date: 08 July 1981
• Docket Number: No. 120,120
• Court: North Carolina Supreme Court
• Parties: PELHAM REALTY CORPORATION and Modelle Scism v. The BOARD OF TRANSPORTATION (formerly State Highway Commission) of the State of North Carolina DEPARTMENT OF TRANSPORTATION v. PELHAM REALTY CORPORATION.

Page 826

279 S.E.2d 826

303 N.C. 424

PELHAM REALTY CORPORATION and Modelle Scism v. The BOARD OF TRANSPORTATION (formerly State Highway

Commission) of the State of North Carolina

DEPARTMENT OF TRANSPORTATION v. PELHAM REALTY CORPORATION.

No. 120.

Supreme Court of North Carolina.

July 8, 1981.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Charles M. Hensey, Raleigh, for North Carolina Dept. of Transp., appellant.

Tuggle, Duggins, Meschan, Thornton & Elrod, P. A. by David F. Meschan, Greensboro, for appellees.

BRITT, Justice.

I.

After finding numerous facts, Judge Long made three conclusions of law: First, the Department has the authority, pursuant to G.S. § 136-89.55, to construct such service roads as in its opinion are necessary or desirable; second, the right-of-way which the Department seeks to acquire from plaintiffs is for a public road; and, third, the Department's exercise of its powers of condemnation in this case is for a public purpose. Each of these conclusions is pertinent to a proper resolution of the case sub judice. However, two preliminary considerations must be addressed first if the substantive issues of the case are to be answered: First, the procedural posture of the litigation; and, second, the propriety of the remedy of an injunction in a condemnation proceeding.

A.

Article 9 of Chapter 136 of the General Statutes governs the Department's exercise of its powers of eminent domain. See generally G.S. §§ 136-103 to -121.1 (1981). Specifically, G.S. §§ 136-103 (1981), provides that in the event that condemnation becomes necessary, the Department shall institute a civil action in the superior court of any county in which the land in question is located. Such an action is commenced by the filing of a complaint, ⁵ as well as a declaration of taking which declares that such land, easement or interest is taken for the use of the Department of Transportation. ⁶ The filing of the complaint and the notice of taking must be accompanied by the deposit of the sum of money which the Department estimates to be just compensation for the taking in question. Upon the filing of the complaint, the declaration of taking, and the deposit of estimated compensation, title to the land or other interest in question, as well as the right to immediate possession vests in the Department. G.S. § 136-104 (1981); see generally State v. Johnson, 278 N.C. 126, 179 S.E.2d 371 (1971); State Highway Comm'n v. Myers, 270 N.C. 258, 154 S.E.2d 87 (1967). The judge of the court in which the action is filed must enter such orders as are required to place the Department in immediate possession. G.S. § 136-104 (1981). Such land or interest is deemed to be condemned and taken for the use of the Department as of the time of filing. Id. Any person named in and served with a complaint and a declaration of taking has twelve months from the date of service to answer. G.S. § 136-107 (1981). ⁷ Such persons may also apply to the court for disbursement of the money deposited in the court, or any part thereof, as full compensation, or as a credit against just compensation without prejudice to any further proceedings to determine just compensation. G.S. § 136-105 (1981).

In the present case, there is no dispute that the Department has complied with the relevant statutory provisions concerning the procedure that is to be employed in condemnation proceedings. ⁸ On 28 May 1979, the Department filed its complaint and declaration of taking with the Caswell County Clerk of Superior Court. The Department also deposited the sum of $19,800.00 with the court, that amount being its estimate of fair compensation. Plaintiffs were informed by letters dated 23 May 1979 of the Department's intention to file suit.

Plaintiffs have never answered the complaint filed by the Department. Ordinarily, that failure would subject them to the entry of default. See G.S. § 1A-1, Rule 55 (1969). However, later in the day on 28 May 1979, plaintiffs filed an independent lawsuit in which they sought a permanent injunction against the proposed taking. The Department filed answer to that action on 17 August 1979.

Plaintiffs' failure to answer the condemnation proceeding filed by the Department is not a fatal defect. The parties have entered into several stipulations to chart the progress of the litigation. Not only have the parties stipulated to having the cause heard out of county and out of term by Judge Long, they have also agreed that the evidence submitted at the hearing on the motion for a preliminary injunction would be admissible at the subsequent hearing on the motion for a permanent injunction. Furthermore, the parties have stipulated that the court ruling concerning plaintiffs' independent action would be applicable to the Department's condemnation action and that the ruling would resolve the issues in the condemnation action concerning public use and public purpose.

Stipulations are viewed favorably by the courts because their usage tends to simplify, shorten, or settle litigation as well as save costs to litigants. Outer Banks Contractors, Inc. v. Forbes, 302 N.C. 599, 276 S.E.2d 375 (1981); Rickert v. Rickert, 282 N.C. 373, 193 S.E.2d 79 (1972); Rural Plumbing and Heating, Inc. v. H. C. Jones Construction Co., 268 N.C. 23, 149 S.E.2d 625 (1966). The stipulations which the parties have entered into have had their desired effect. The duplication of evidence, as well as the repetition of trial proceedings, has been avoided. The entire course of the litigation has been expedited by the cooperative efforts of the litigants and their counsel. While a court has no authority to alter the requirements of G.S. § 136-107, we perceive no reason why parties may not make reasonable stipulations concerning matters to which the statute is addressed. In any event, the rights of neither party have been violated or prejudiced by plaintiffs' failure to file answer. It is clear that there has been a complete and spirited adversary proceeding throughout the course of these proceedings. ⁹

B.

In their complaint, plaintiffs prayed for the entry of a permanent injunction which would enjoin the Department "from acquiring or constructing the contemplated right-of-way" through the property in question. On 1 August 1979, the case came on for hearing on plaintiffs' motion for a preliminary injunction. The motion was denied. On 8 November 1979, a hearing was held on plaintiffs' motion for a permanent injunction. Again, the court denied plaintiffs relief. The Court of Appeals reversed, ¹⁰ and it remanded the cause for entry of an order permanently enjoining the taking of plaintiffs' property for the project. The Court of Appeals was in error by so ordering.

It is fundamental that an injunction is an equitable remedy. Lane Trucking Co. v. Haponski, 260 N.C. 514, 133 S.E.2d 192 (1963); see generally D. Dobbs, Handbook on the Law of Remedies § 2.10 (1973). It follows, therefore, that where there is a full, complete, and adequate remedy at law, the equitable remedy of injunction will not lie. E. g., City of Durham v. Public Service Company of North Carolina, Inc., 257 N.C. 546, 126 S.E.2d 315 (1962). This court has relied upon these fundamental principles to hold that an injunction will not lie to restrain the state from maintaining condemnation proceedings on the ground that it was without authority to condemn the land since the ground of objection is one which the landowner may assert as a defense in the condemnation proceeding itself. State Highway Comm'n v. Thornton, 271 N.C. 227, 156 S.E.2d 248 (1967); see generally City of Reidsville v. Slade, 224 N.C. 48, 29 S.E.2d 215 (1944). We are of the opinion that Thornton controls the case sub judice.

Thornton was a case in which the State Highway Commission sought to condemn a right-of-way across a tract of land owned by the defendants. The Commission proposed to construct an access road as a component of a larger highway project. The proceeding was commenced on 1 October 1965 by the issuance of a summons, the filing of a complaint, the filing of a declaration of taking, and the deposit of the estimated compensation due the defendants for the taking of their property. On 6 October 1965, the state began construction. Not until 22 July 1966, when the road was virtually completed, did defendants file their answer. ^10a Defendants contended that the taking was not for a public purpose, and they sought the entry of a permanent injunction enjoining the condemnation of their land. Upon receiving evidence and making findings of fact, the court concluded that the taking of defendants' land was not for a public purpose, and it entered judgment permanently enjoining the state from appropriating defendants' land. On appeal, this court reversed the judgment of the trial court, and it remanded the cause for the determination of appropriate compensation. Writing for the majority, Justice Lake observed that the defendants could have derived no benefit from the entry of an injunction which they would not have gained by the entry of a judgment dismissing the condemnation proceeding. Such is the case here.

In their independent action in which they sought the entry of a permanent injunction restraining the taking of their land, plaintiffs alleged that the project did not serve a public purpose. In view of the stipulations that allegation constitutes a substantive ground of defense to the Department's condemnation action. It follows, therefore, that if plaintiffs were able to establish the absence of a public purpose, the appropriate remedy would be the dismissal of the condemnation suit brought by the Department, not the entry of a permanent injunction. We therefore hold that the Court of Appeals erred in ordering that the cause be remanded for entry of a permanent injunction.

II.

Having resolved the procedural and remedial issues ¹¹ posed by the case sub judice, we now direct our attention to the substantive issues which have been preserved...