State Highway Commission v. L. A. Reynolds Co., 439
Decision Date | 02 February 1968 |
Docket Number | No. 439,439 |
Citation | 272 N.C. 618,159 S.E.2d 198 |
Parties | STATE HIGHWAY COMMISSION, Plaintiff, v. L. A. REYNOLDS COMPANY and Continental Casualty Company, Defendants. |
Court | North Carolina Supreme Court |
Hudson, Ferrell, Petree, Stockton, Stockton & Robinson by W. F. Maready, Winston-Salem for defendant appellee, L. A. Reynolds Co.
Blackwell, Blackwell, Canady, Eller & Jones, Winston-Salem, for defendant appellee, Continental Cas. Co.
Plaintiff did not except to any of the court's findings of fact. Indeed, the judgment recites these facts were 'judicially stipulated.' Plaintiff's assignments of error are based solely on its exceptions to the court's conclusions of law and judgment.
Moore v. Owens, 255 N.C. 336, 121 S.E.2d 540; 1 Strong, North Carolina Index 2d, Appeal and Error § 26.
Facts established by findings (12), (13) and (14), quoted in our preliminary statement, may be summarized as follows: Reynolds' operations were conducted pursuant to and in accordance with its contract with the Commission and under the supervision of the Commission's resident engineer and two inspectors. Whatever damage was done to the restaurant building arose out of the ordinary and customary use by Reynolds 'of standard and accepted machinery and road-building equipment used in the work in accordance with standard and accepted methods and techniques in the road construction industry.'
There is no allegation or contention that Reynolds' operations were conducted in a negligent manner. Plaintiff bases its case entirely on what it contends to be the contractual obligations of defendants.
The Commission, in the proceeding instituted by it, did not seek to condemn any portion of the land on which the restaurant building was located. The landowners, in their 'Amendment to Answer,' asserted the damages to their building resulting from highway construction work in the area constituted a taking of their building for highway purposes. Thus, the landowners' claim for compensation for the taking of their building was a new action of the nature now denominated 'inverse condemnation.' With reference to the building, the landowners recovered on the ground the Commission, having taken their property by virtue of its right of eminent domain, was obligated to pay just compensation therefor.
The doctrine of 'inverse condemnation,' as established in this jurisdiction, is as follows: Where private property is Taken for a public purpose by a governmental agency having the power of eminent domain and no procedure provided by statute affords an applicable or adequate remedy, the owner, in the exercise of his constitutional rights, may maintain An action to obtain just compensation therefor. McKinney v. High Point, 237 N.C. 66, 74 S.E.2d 440; Eller v. Board of Education, 242 N.C. 584, 89 S.E.2d 144; Sale v. Highway Commission, 242 N.C. 612, 89 S.E.2d 290; Cannon v. Wilmington, 242 N.C. 711, 89 S.E.2d 595; Rhyne v. Town of Mount Holly, 251 N.C. 521, 112 S.E.2d 40; Guilford Realty & Insurance Co. v. Blythe Brothers Co., 260 N.C. 69, 131 S.E.2d 900; Midgette v. Highway Commission, 260 N.C. 241, 132 S.E.2d 599; City of Charlotte v. Spratt, 263 N.C. 656, 140 S.E.2d 341; Sherrill v. North Carolina State Highway Commission, 264 N.C. 643, 142 S.E.2d 653.
Whether the landowners' said 'inverse condemnation' action was a proper cross action in the Commission's condemnation proceeding is not presented. In this connection, see City of Charlotte v. Spratt, supra. Suffice to say, the landowners' said action was pleaded and prosecuted to final judgment.
Although the Commission was obligated to the landowners for the taking of their restaurant building as determined by final judgment, the facts found by Judge Gambill and set forth in the judgment fail to disclose any obligation of Reynolds to the landowners for whatever damage was done to their building on account of its operations.
While not necessary to decision of the precise question then presented, this Court, in opinion by Ervin, J., in Moore v. Clark, 235 N.C. 364, 70 S.E.2d 182, said: . It is noted that Moore v. Clark, supra, was decided prior to the decisions cited above relating to 'inverse condemnation.'
The statement quoted from the opinion of Ervin, J., in Moore v. Clark, supra, is pertinent to decision herein. We adopt it as authoritative in this jurisdiction.
In addition to the decisions cited by Ervin, J., attention is directed to those considered below.
In Tidewater Const. Corp. v. Manly, 194 Va. 836, 75 S.E.2d 500, the landowners alleged the contractor, while engaged in the construction of a tunnel, had damaged their building by the removal of its subjacent support. It was admitted that the contractor was not guilty of negligence in the construction of the tunnel and that it performed the work thereon strictly in accordance with the plans and specifications embraced in its contract with the Tunnel Commission, a governmental agency vested with the right of eminent domain. A judgment in favor of the landowners was reversed. Whittle, J., for the Supreme Court of Appeals of Virginia, said:
...
To continue reading
Request your trial-
Matternes v. City of Winston-Salem
...for its own negligence in performing the contract. Givens v. Sellars, 273 N.C. 44, 159 S.E.2d 530 (1968); Highway Commission v. Reynolds Co., 272 N.C. 618, 159 S.E.2d 198 (1968); Prosser, Law of Torts § 131 (1971). In measuring such negligence, the standard should be that of Reasonable care......
-
Wilkie v. City of Boiling Spring Lakes
...for a public purpose by a governmental agency having the power of eminent domain,’ " (quoting State Highway Commission v. L.A. Reynolds Co., 272 N.C. 618, 623, 159 S.E.2d 198, 202 (1968) ), with the only public purposes for which local public condemnors are entitled to assert the power of e......
-
Givens v. Sellars, 27
...of another is personally liable to the owner. Broadhurst v. Blythe Bros. Co., 220 N.C. 464, 17 S.E.2d 646; State Highway Commission v. L. A. Reynolds Co., 272 N.C. 618, 159 S.E.2d 198. Absent negligent or willfully tortious conduct, however, an independent contractor is not liable for injur......
-
Sigmund Sternberger Foundation, Inc. v. Tannenbaum
...does not present for review the findings of fact or the sufficiency of the evidence to support them. State Highway Com. v. L. A. Reynolds Co., 272 N.C. 618, 159 S.E.2d 198; Wachovia Bank & Trust Co. v. Buchan, 256 N.C. 142, 123 S.E.2d 489; Moore v. Owens, 255 N.C. 336, 121 S.E.2d 540; 1 Str......