State v. Floyd

• Decision Date: 08 March 1933
• Docket Number: 626.
• Citation: 168 S.E. 222,204 N.C. 291
• Parties: STATE et al. v. FLOYD et al. SAME v. QUEEN'S HEIRS et al.
• Court: North Carolina Supreme Court

168 S.E. 222

204 N.C. 291

STATE et al. v. FLOYD et al.

SAME v. QUEEN'S HEIRS et al.

No. 626.

Supreme Court of North Carolina

March 8, 1933

Appeal from Superior Court, Buncombe County; Sink, Judge.

Condemnation proceeding by the State against Ed Floyd and others, and against the heirs at law of W. E. Queen and others, in which proceeding, pending the landowners' appeal from the clerk's judgment confirming the commissioner's report, the Sheriff of Swain County filed a statement with the clerk claiming certain taxes out of the compensation awarded the owners and then in the hands of the clerk. From a judgment pursuant to a holding that the taxes and penalties constituted a prior lien upon the compensation and that the funds were subject to such tax lien, the owners appeal.

Reversed.

On September 13, 1929, the state of North Carolina instituted a condemnation proceeding before the clerk of the superior court of Buncombe county for the purpose of acquiring the lands of Ed Floyd, T. C. Queen, et al. for the purpose of incorporating said land as a part of the Great Smoky Mountain National Park. The proceeding was instituted and conducted under and by virtue of chapter 48, Public Laws of 1927, and acts amendatory thereto. The respondents filed answer admitting the right of the state to condemn the land for park purposes but contested the price to be paid.

Commissioners were duly appointed, who viewed and appraised the land making a written report to the clerk. Thereafter exceptions were duly filed to the value placed on said lands by the commissioners, and said exceptions "were heard and passed upon by the clerk of the superior court of Buncombe county on the 27th day of January, 1930, *** and on said date the clerk of the superior court of Buncombe county confirmed the report of said commissioners and entered judgment in accordance therewith, adjudging the value of the lands as fixed by the commissioners." The said judgment contained the following clause: "That the foregoing entitled actions are retained for the purpose of adjudication of any and all claims which might be ascertained in, to, or against the money to be paid into the court by the petitioner, the state of North Carolina, pursuant to the provisions of said judgment." The clerk directed that the value of the lands be paid into the clerk's office by the petitioner and the respondents appealed from the confirming judgment of the clerk to the superior court. Pending the appeal the sheriff of Swain county filed a statement with the clerk of the superior court, claiming that on the 1st day of April 1930, the lands described in the petition were placed upon the tax list of Swain county, and that as a result Swain county was entitled to collect taxes and penalties out of the compensation awarded the owner and then in the hands of the clerk. The trial judge was of the opinion that the taxes and penalties constituted a prior lien upon the compensation and that the funds were subject to such tax lien. From the judgment so rendered the respondents appealed.

Jones & Ward, of Asheville, for respondent.

Frye & Jones, of Bryon City, for Swain County.

BROGDEN Justice.

1. Was the land of the respondent subject to tax on April 1, 1930?

2. Does the tax constitute a debt of the landowner enforceable against the money in the hands of the clerk?

For compensation purposes the commencement of the proceeding marks the time of the taking. Consequently, the owner of the land cannot recover for any improvement placed thereon or for enhancement thereof due to other causes. The obvious reason for such conclusion is that the first judicial act in the condemnation process is, in contemplation of law, a setting apart of the property for public use. Therefore, if the proceeding is prosecuted to final conclusion the sovereign is deemed to be the owner from the commencement of the proceeding. Western Carolina Power Co. v. Hayes, 193 N.C. 104, 136 S.E. 353.

The petitioner, Swain county, contends, however, that the foregoing principle is not pertinent by reason of certain provisions in the Park Act. These provisions are: (1) "Upon the payment of the award rendered in any proceeding or proceedings the title to the lands *** shall vest in fee simple in the State of North Carolina." (2) "After the final judgment *** if *** the acquisition of the title to said...