State v. Johnson, No. 55

• Decision Date: 11 October 1972
• Docket Number: No. 55
• Citation: 282 N.C. 1,191 S.E.2d 641
• Parties: STATE of North Carolina v. James E. JOHNSON, Jr., et al.
• Court: North Carolina Supreme Court

Page 641

191 S.E.2d 641

282 N.C. 1

STATE of North Carolina v. James E. JOHNSON, Jr., et al.

No. 55.

Supreme Court of North Carolina.

Oct. 11, 1972.

Appeal by the State from James, J., 8 November 1971 Session of New Hanover, transferred from the Court of Appeals for initial appellate review by the Supreme Court pursuant to G.S. § 7A--31(a) (1969); docketed and argued as Case No. 127 at the Spring Term 1972.

This proceeding was instituted by the State on 28 June 1968 under N.C.Gen.Stat., Stat., Ch. 146, Art. 6 (1964 and Supp. 1971), in the manner prescribed by Chapter 136, Art. 9, to condemn 268.5 acres of land owned by respondents Johnson and Killingsworth. The purpose of the condemnation is to preserve the remains and relics of Confederate Fort Fisher and the approaches thereto.

The property condemned is shown on a map entitled 'Map Showing a Portion of Fort Fisher,' introduced in evidence as State's Exhibit A. This map shows the land to be a rough Y in shape, the base of the Y being the northern end of the tract and the western prong about one-half as long as the eastern. The northern boundary of the tract is a 667-foot line which was the southern boundary of an 11.51-acre tract purchased by the State in 1966 from Hugh Morton. (On the Morton tract is located over half of the small area known as Battle Acre. This area, which was within the ell of the old fort and the site of Colonel William Lamb's headquarters, is marked by a monument. The remains of the sea face of Fort Fisher extend southward about one mile from the angle with the land face near Battle Acre.) U.S. Highway No. 421 crosses the base of the Y, cutting off a triangle about 200 200 100 feet from the extreme northwestern corner of the property. The eastern line of the property runs approximately 11,000 feet along the Atlantic Ocean. The width of the eastern prong of the Y at its south terminus is approximately 550 feet. Between the east and west prongs are marshlands and Stillwater Bay. The inside of the Y, an irregular V in shape, is approximately 12,600 feet from the southwestern terminus of the eastern prong to the southeastern terminus of the western prong.

The last 600 feet of the south end of the west prong varies from 100 to 200 feet in width. At the base of this strip the prong is approximately 555 feet wide. The map shows the western line of the property, the right side of the Y, to be 5,900 feet in length. This line coincides with the 'U.S. Government Taking Line,' a line established by the federal government as 'a protection line in case of explosion' at its Sunny Point Ammunition Depot. The described property all lies above the mean high water lines of the sound and the ocean as shown on Exhibit A. Generally the elevation of the land is 5--6 feet above mean high water, the northern portion being higher than the southern.

On 11 May 1970, Judge Albert W. Cowper, pursuant to G.S. § 136--108 (1964), determined the conflicting claims to the property and all other issues raised by the pleadings except the amount which the State should pay the owners as just compensation for the taking. Upon appeal, his judgment was modified and offirmed by this Court in State v. Johnson, 278 N.C. 126, 179 S.E.2d 371 (1971). Following certification of that decision, which settled the southern boundary of the east prong of the Y as the line along which New Inlet had closed in 1933, the parties stipulated the location of this line to be the New Inlet line shown on State's Exhibit A. Illustrative map No. 1, drawn from Exhibit A and inserted herein, shows the boundaries of the property taken.

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

At the time the State filed the declaration of taking it deposited in court the sum of $237,500.00 as its estimate of just compensation for the 268.5 acres condemned. At the trial before Judge James the sole issue was the fair market value of this land on 28 June 1968, the date of the taking. The jury answered the issue,.$1,262,500.00.'

Respondents' evidence of value ranged from one appraiser's low of $1,762,000.00 to respondent Killingsworth's high estimate of $4,027,500.00. The State's evidence of value ranged from a low of $225,000.00 to a high of $300,000.00. Respondents had purchased the 268.5 acres in suit on 5 July 1967 from Hugh Morton. As a witness for the State, Mr. Morton testified that he sold the property to respondents for $225,000.00 after it had been advertised for about five months in the State's major newspapers and also in the Wall Street Journal.

In addition to opinion evidence as to value, respondents offered evidence tending to show:

After purchasing the property respondents employed land planners and engineers to advise them with reference to the highest and best use, which was determined to be a residential development along the ocean and sound. Over the State's objection, respondent Killingsworth testified that, as a result of this advice, respondents planned at some future time (1) to use eight acres at the north end of the property for a motel; and (2) as an adjunct to residential development, to construct a marina on the south end of the western prong of the Y.

In March 1968 respondents employed the engineering firm of Moorman and Little, Inc., to subdivide 28.5 acres in the northeast portion of the property for a residential development. That firm worked on the project from then until 28 June 1968, when all work stopped. On the date of the taking, Moorman & Little had 'developed and computed' for this acreage the lot plan shown on the map denominated 'Section One, Ramsgate at Fort Fisher' (Section One). Over the State's objection, this map was introduced in evidence as Respondents' Exhibit B to illustrate the testimony of certain witnesses. It showed 79 lots, which fronted on six east-west streets stemming from two connecting north-south streets. These streets constituted one continuous thoroughfare on the western boundary of Section One. Each of the six east-west streets ended in a circle. (See Illustrative Maps 2 and 3.)

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

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

On 6 June 1968, approximately three weeks before the taking, respondents executed to Michel DeLoach, a first cousin of respondent Killingsworth, a deed for about four acres of the 28.5-acre tract. Although it contained no reference to the subdivision or to the map of it, the description in the deed actually covered the ten lots comprising the northeast corner of Section One. The consideration for this deed was $80,000.00. However, both money and deed were deposited in escrow with the Wachovia Bank & Trust Company at Wilmington to be delivered if, and when, respondents completed the subdivision in accordance with the engineering plans for its development.

At the same time--upon the same conditions, for the same consideration, and in the same manner--respondents executed a deed for an additional four acres of Section One to Del-Cook Lumber Company (Del-Cook), a corporation in which DeLoach was a minority stockholder. The metes and bounds description in this deed covered the ten lots at the southeast corner of Section One, but it likewise made no reference to the subdivision or map.

Prior to the execution of these two deeds Killingsworth had received a telegram from the State's Property Officer asking respondents to stop all grading upon the land. At the time the deeds were executed respondents, DeLoach and Del-Cook, all had notice of the State's interest in acquiring the property in suit. When the institution of this condemnation proceeding made compliance with the conditions of the sale impossible, the bank returned the money to DeLoach and Del-Cook and the deeds to respondents.

The court found that these two 'sales transactions' took place at arm's length in the ordinary course of business and, over the State's objection, admitted the testimony of respondent Killingsworth, detailed above, with reference thereto.

On 28 June 1968, the date of the taking, only the improvements planned for Section One had been started, and they were incomplete. No lots had been staked out on the ground, for property irons could not be placed until the last of the grading had been completed. However, streets had been rough graded and control stakes put in. Although the streets were ready for marl, the stone base for asphalt, no marl had been placed on the streets. Drainage ditches and culverts were still to be constructed. No drainage pipes had been put in the ground, but water laterals across the streets were in. The main drainage project, a canal approximately six feet deep and 3,000 feet long, which was to run along the western boundary of the Y abutting the U.S. Government taking line, had not been commenced. The underground electrical system had not been installed. Because soil conditions were suitable for septic tanks there was no sewage disposal plan. Moorman testified that a sewage plan 'was not necessary in the first phase.' A well site of approximately 200 square feet had been selected, but no well had been constructed.

On 5 June 1968 the Wilmington-New Hanover Planning Board gave conditional preliminary approval to the layout of this subdivision. This approval authorized the construction of streets, the installation of water systems and other utilities, but until the county commissioners finally approved the plans for the subdivision no sales could be made with reference to the map, Exhibit B. This final approval was dependent upon respondents meeting the requirements of the zoning ordinance and of the Board of Health. Final approval had not been obtained at the time of the taking.

In addition to Section One, Moorman & Little had put on paper a preliminary plan for Section Two of Ramsgate. Over the State's objection, to illustrate the testimony of their witness Moorman, respondents were permitted to introduce in evidence a...