State v. Johnson
| Decision Date | 10 March 1971 |
| Docket Number | No. 55,55 |
| Citation | 278 N.C. 126,179 S.E.2d 371 |
| Parties | STATE of North Carolina v. James E. JOHNSON, Jr., Albert S. Killingsworth and wife, Elizabeth E.Killingsworth, Agnes M. Cocke Mayer, Trustee, Hugh M. Morton and wife, Julia T.Morton, William L. Hill, II, Trustee, the Southern National Bank of N.C., Michael DeLoach;Del-Cook Lumber Company, Inc., and Westwind Corp., Original Defendants, FrankO. Sherrill and wife, Ruth J. Sherrill, Additional Defendants. |
| Court | North Carolina Supreme Court |
Stevens, Burgwin, McGhee & Ryals by Karl W. McGhee and Richard M. Morgan, Wilmington, for Frank O. Sherrill and wife, Ruth J. Sherrill, defendants appellants.
Robert Morgan, Atty. Gen., Parks H. Icenhour, Asst. Atty. Gen., for the State of North Carolina, plaintiff appellee.
Alan A. Marshall and Lonnie B. Williams, Marshall, Williams & Gorham, Wilmington, for James E. Johnson, Jr., Albert
S. [278 N.C. 136] Killingsworth and wife, Elizabeth E. Killingsworth, defendants appellees.
We note at the outset that appellants have abandoned their exception and assignment of error addressed to the findings of fact and conclusions of law with respect to the second issue. As to the first and third issues, however, appellants strenuously insist that the trial judge committed reversible error. This requires examination of the exceptions and assignments relating to those issues. We shall deal with them in numerical order.
ISSUE I
This action was instituted under authority conferred by Article 6 of Chapter 146 of the General Statutes which provides for acquisition of lands on behalf of the State. G.S. § 146--24(c), Chapter 512 of the 1967 Session Laws, provides that if negotiations are unsuccessful, 'the Department of Administration may request permission of the Governor and Council of State to exercise the right of eminent domain and acquire and such land by condemnation in the same manner as is provided for the State Highway Commission by article 9 of chapter 136 of the General Statutes.' Thus the procedures for acquisition to the time of condemnation are governed by Article 6 of Chapter 146, while the condemnation, if required, is regulated by Article 9 of Chapter 136. Appellants assign errors with regard to both the procedure employed and the condemnation itself.
Appellants contend that the trial judge erred in finding that the State complied with 'all procedural matters set forth in Article 9 of Chapter 136 of the General Statutes.' The State did not comply, say the Sherrills, with G.S. § 136--104 which provides that upon 'the amending of any complaint and declaration of taking affecting the property taken' a supplemental memorandum of action must be filed with the register of deeds of the county. This document must contain various information, including names of interested parties, descriptions of the property affected, and the relevant facts about the lawsuit. The State admits that it did not file such a supplement but contends it was not required to do so inasmuch as the amendments to its complaint did not Affect the property taken within the meaning of the statute.
The complaint and declaration of taking was amended twice. The first amendment added Sherrill and wife as additional defendants and alleged 'upon information and belief that * * * (they) have or claim to have an interest in the land described in this Complaint. * * *' The second amendment substituted a new description of the land to be taken for the original description in the complaint.
Words of a statute must be construed, insofar as possible, to effectuate the legislative intent. Reed Supply Co. v. Da Pow Developers, Inc., 277 N.C. 119, 177 S.E.2d 273 (1970); In Re Dillingham, 257 N.C. 684, 127 S.E.2d 584 (1962). The purpose of paragraph one of G.S. § 136--104 is to vest title in the State upon the filing of the complaint, the declaration of taking, and the deposit in cash of the estimated compensation. North Carolina Highway Commission v. York Industrial Center, 263 N.C. 230, 139 S.E.2d 253 (1964). The manifest purpose of the second paragraph of the statute is to assure public record of the change in ownership. The second sentence of the second paragraph, with which we are concerned here, was inserted by the 1963 Legislature. It reads: 'Upon the amending of any complaint and declaration of taking affecting the property taken, the State Highway Commission shall record a supplemental memorandum of action.' The obvious intent of the sentence is to assure that any change in the complaint or declaration of taking that Affects the property will likewise be entered into the land records of Appellants next assign as error the conclusion of the trial judge that the requirements of Article 6 of Chapter 146 of the General Statutes were fully complied with prior to the institution of this action. G.S. § 146--23 and § 146--24 provide, in substance, that a State agency desiring to acquire land must file a statement of needs with the Department of Administration, and that department must then investigate 'all aspects of the requested acquisition.' If that department determines that it is in the best interest of the State to acquire the land, it must negotiate with the owners for its purchase. If the negotiations are successful, a proposal is submitted to the Governor and Council of State for the purchase of the property. If negotiations are unsuccessful the Department of Administration may petition the Governor and Council of State for permission to condemn the land in the manner set out in Chapter 136 of the General Statutes. State v. Core Banks Club Properties, Inc., 275 N.C. 328, 167 S.E.2d 385 (1969).
the county. Appellants' contention that said sentence means that a supplemental memorandum of action must be filed as to all amendments, significant or insignificant, to the original complaint is not sound. Where the purpose of the statute is to require notice of ownership, an amendment to the complaint which only adds additional parties defendant who may or may not share in the proceeds requires no supplemental notice to the public. The same is true with respect to an amendment that only substitutes a more specific metes and bounds description for a description less exact, both descriptions covering the same property. We therefore hold that a supplemental memorandum is required only where the amendment to the complaint and declaration of taking Affects the property taken. This assignment of error is overruled.
In the instant case, appellants first contend that the Department of Archives and History made no request for acquisition of all the lands described in the complaint, some 333.515 acres, but requested only an area comprising about twenty-five acres. This contention is based on appellants' interpretation of a letter from the Director of the Department of Archives and History to the Department of Administration which apparently alerted that department to the needs of the Department of Archives and History with respect to the land in question. That letter, in pertinent part, reads: 'In pursuance of our telephone conversation of a few minutes ago, the Department of Archives and History hereby requests the Department of Administration, Property Control and Construction Divison, to take immediate legal action to stop or prevent any steps or measures which might damage or destroy remains or relics of Confederate Fort Fisher, in the area immediately south of present Fort Fisher Historic Site, in New Hanover County.'
The trial court found as a fact that the application was for acquisition of 'the subject lands.' Findings of fact by the trial court, if supported by any competent evidence, are conclusive on appeal. S. & R. Auto & Truck Service v. City of Charlotte, 268 N.C. 374, 150 S.E.2d 743 (1966); Mills v. Tri-State Motor Transit Co., 268 N.C. 313, 150 S.E.2d 585 (1966); Wall v. Timberlake, 272 N.C. 731, 158 S.E.2d 780 (1968). And this is so notwithstanding evidence to the contrary. Spartan Equipment Co. v. Air Placement Equipment Co., 263 N.C. 549, 140 S.E.2d 3 (1965); North Carolina State Highway Commission v. Brann, 243 N.C. 758, 92 S.E.2d 146 (1956); 2 McIntosh, N.C. Practice and Procedure (2d Ed., 1956) § 1782(6). Here, the record contains competent evidence that the letter referred to above related to the entire area south of Fort Fisher and that the request was so understood by the Department of Administration, the Governor, and the Council of State. This finding of fact and the conclusion of law based thereon will not be disturbed.
Appellants further contend that no investigation was made of the need of the Appellants' assignment of error that no report of an investigation was made to the Governor and Council of State is based on the premise that no investigation was made. Inasmuch as we uphold the finding of fact of the trial judge that a full investigation was made, this assignment fails.
property condemned, and particularly the southermost portion comprising the end of the peninsula south of Fort Fisher. They contend that no attempt was made to establish the actual site of Old Fort Fisher for the purpose of determining how best to preserve its historical and archaeological value. The trial judge, however, found as a fact that 'the investigation was full and adequate under the circumstances.' There is evidence to support that conclusion and it will not be disturbed, notwithstanding that there is some evidence to the contrary. North Carolina State Highway Commission v. Nuckles, 271 N.C. 1, 155 S.E.2d 772 (1967). There is evidence in the record that the Department of Administration had at its disposal reports of the Department of Archives and History relevant to the investigation; that the area was personally visited by representatives of the department; that these representatives flew over the land; and that various maps were consulted. Hence there is evidence to support the findings of the trial judge, and...
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