State Highway Commission v. Batts, 286

• Decision Date: 29 September 1965
• Docket Number: No. 286,286
• Court: North Carolina Supreme Court
• Parties: STATE HIGHWAY COMMISSION, v. J. B. BATTS and wife, Betty Joyner Batts.

Page 126

144 S.E.2d 126

265 N.C. 346

STATE HIGHWAY COMMISSION, v. J. B. BATTS and wife, Betty Joyner Batts.

No. 286.

Supreme Court of North Carolina.

Sept. 29, 1965.

Atty. Gen. T. W. Bruton, Asst. Atty. Gen. Harrison Lewis, and Trial Attorney Claude W. Harris, Raleigh, for North Carolina State Highway Commission, plaintiff appellee.

Don Evans, Rocky Mount, for defendant appellants.

PARKER, Justice.

Defendant first assign as error that Judge Bone erred in finding as a fact that on 6 June 1963 the State Highway Commission duly passed a resolution determining that it was necessary to appropriate an easement of right of way across the property of defendants herein for public use in the construction of Project 5.322, Nash County. Defendants' second assignment of error is that Judge Bone erred in his finding of fact No. 5 'That the appropriation of Defendants' property is for the purpose of constructing a State maintained public road.' Defendants' third and last assignment of error, except a formal one to the judgment, is that Judge Bone erred in his conclusion of law 'That the appropriation of right of way by the Plaintiff as alleged in the Complaint across property of Defendants herein is for a public use.'

Plaintiff offered in evidence an excerpt from the minutes of the State Highway Commission meeting held in Raleigh, North Carolina, on 6 June 1963 with eleven members present. This excerpt from the minutes shows that the following resolution, the material parts of which are quoted here, was introduced by Commissioner Elliott, seconded by Commissioner Webb, and being put to a vote was unanimously carried:

'WHEREAS, right-of-way acquisition in accordance with the preliminary right-of-way plans on file in the Right-of-Way Department has heretofore been determined to be necessary and authorized by the Commission; and

* * *

* * *

'WHEREAS, the final plans for the following projects have been prepared and provide for the construction of the sections of highways embraced in said projects within the uniform parallel right-of-way widths as shown on the respective plans, * * * and

'WHEREAS, upon the recommendations of the engineers of the Commission, the Commission finds that such rights of way as shown on the final plans and hereinafter set out are necessary for the construction of said projects;

'NOW, THEREFORE, BE AND IT IS HEREBY RESOLVED AND ORDAINED that the rights of way for the location, construction, relocation and reconstruction of the sections of highways embraced in the following projects shall be as shown in detail in the final plans for said projects, as hereafter identified * * *.'

Then follows a description of seven projects, and a description of the eighth project which is as follows:

'Project 5.322, Nash County: Grading, drainage and paving from the point of intersection of the common property line of Lovie Anne Joyner and J. B. Batts, et ux, with the southern right-of-way boundary of S.R. 1717, and running thence in a southeasterly direction, approximately 3,316 feet to a point in the property of J. M. Batts, with right of way as indicated upon the final plans for said project, the same being identified as Addendum 8 to the minutes of the June 6, 1963 State Highway Commission Meeting and are incorporated herein by reference.'

After the eighth project follows a description of four more projects. Then the excerpt from the minutes ends with these words:

'BE IT FURTHER RESOLVED that the Right-of-Way Department is directed to acquire the hereinabove described rights of way, construction easements and control of access and such rights of way, construction easements and control of access of heretofore acquired by the Right-of-Way Department in conformance with said final plans is hereby ratified, and the Attorney General is requested to institute on behalf of the Commission proceedings to acquire rights of way, construction easements and control of access upon determination by the Chief Right-of-Way Engineer and the Attorney General that it is necessary that such proceedings be instituted to carry forward the right-of-way acquisition for said projects.'

Plaintiff further offered in evidence an excerpt from the minutes of the State Highway Commission meeting held in Raleigh, North Carolina, on 1 August 1963 with seventeen members present. This excerpt from the minutes shows the following:

'Acting on the recommendation of Secondary Roads Director Roney, the following additions, deletions, and a correction to a previously approved addition, all pertaining to the Secondary Road System, were approved on a motion made by Commissioner Tate, seconded by Commissioner Elliott, and unanimously carried:

'ADDITIONS:

'County and Petition Length Description, Date

Number (Miles) of Report '

-------------------- ------- -----------------

Then follows a list of 77 ADDITIONS from many counties, and in this list the following:

'Nash 6532 0.60 Batts Rd., 7-8-63' Plaintiff also offered in evidence an affidavit of Donald Thomas Overman to this effect: He is now employed by the State Highway Commission as Safety and Emergency Planning Engineer, and that prior to 13 July 1963 he was District Engineer, Division 4, District 2, which embraces Nash County. He is familiar with Secondary Road 1768, Nash County, known locally as the Batts Road. Prior to 13 July 1963, and particularly on 6 June 1963, this road existed as an unimproved farm road. That said road as relocated and reconstructed by the State Highway Commission will serve at least five different property owners and four dwellings, and is on the State highway system, and when completed will be open to the general public.

Defendant's evidence shows these facts: Their land is between W. M. Batts' land and Secondary Road 1717. An old farm road leads from Secondary Road 1717 across the lands of Lovie Anne Joyner to the lands of W. M. Batts and J. M. Batts, now occupied by Charlie Batts. This old farm road has never been closed due to weather conditions and has provided free access to the highway from W. M. Batts' and J. M Batts' lands for over 63 years. The only people using this farm road are the people living back of J. B. Batts and Lovie Anne Joyner and people who go back there to call on them. The State Highway Commission seeks to condemn their land for the purpose of constructing a dead-end road over it for the sole use and private benefit of Mr. and Mrs. W. M. Batts and a few of their relatives. The action of the State Highway Commission was initiated by a letter of Mr. and Mrs. W. M. Batts. Mr. and Mrs. W. M. Batts were notified by the State Highway Commission that if they wanted the road they requested, they would be required to give the Commission a bond indemnifying them for whatever damages defendants and Lovie Anne Joyner might prove as a result of the condemnation, and that Mr. and Mrs. Batts did give the Commission such an indemnifying bond. That the State Highway Commission advised Mrs. W. M. Batts of the policy of the Commission requiring four dwellings fronting on the proposed road. At that time there were three dwellings fronting on the proposed road, to wit, Charles Batts, nephew of W. M. Batts, and his mother-in-law in one dwelling; C. O. Vick, Mrs. Batts' brother, in another dwellings; and Mr. and Mrs. W. M. Batts in the other dwelling. Thereafter, Charlie Batts built a shell house on the proposed road, and Mrs. W. M. Eatts' daughter, Mrs. Phil Ellis, moved in with her family. Mrs. W. M. Batts sought the help of the Nash County Board of Commissioners, and on 8 June 1962 presented a written request for a proposed new road to said Board, purporting to be signed by all the property owners on the said road. However, two of the adjoining property owners, J. B. Batts and Lovie Anne Joyner had not signed it, and had not been apprised of said written request. As a consequence of the written request, the Nash County Board of Commissioners on 8 June 1962 passed a resolution requesting the State Highway Commission to take the proposed road into the State secondary road system. This resolution was forwarded to the Commission. However, on 3 September 1963, when the Nash County Board of Commissioners discovered that all the property owners had not in fact signed the request, the Board passed another resolution rescinding their prior resolution of request, and so notified the State Highway Commission. The proposed road is only 3,316 feet long, and dead-ends at or near Charlie Batts' house. Back of Charlie Batts' property is Tar River. The only persons who would use the proposed road, other than Mr. and Mrs. W. M. Batts and their relatives, would be persons having business or social relations with them. That the following sketch marked Exhibit 'X' shows the proposed road, and farm road through the property of Lovie Anne Joyner, and the lands of the various parties adjacent to the proposed road and the farm road.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Judge Bone was empowered by the provisions of G.S. § 136-108 to hear and determine the question specified in his judgment.

The basic question for decision is this: Whether the taking and condemnation of defendants' property as set forth in the complaint and declaration of taking filed by the State Highway Commission is for a public use for a State and county public highway, as contended by the Commission, or it for the sole use and benefit of W. M. Batts and wife and a few of their relatives, as contended by defendants.

In the exercise of the sovereign power of eminent domain, private property can be taken only for a public use and upon the payment of just compensation. City of Charlotte v. Heath, 226 N.C. 750, 40 S.E.2d 600, 169 A.L.R. 569; Strong's N.C.Index, Vol. 2, Eminent Domain, Sec. 3. In any proceeding for condemnation under the sovereign power of eminent domain, it is settled by our decisions that what is a public use is a judicial question for ultimate decision by the court...