Wescott v. State Highway Commission, 22

• Decision Date: 23 September 1964
• Docket Number: No. 22,22
• Citation: 138 S.E.2d 133,262 N.C. 522
• Court: North Carolina Supreme Court
• Parties: G. T. WESCOTT, Petitioner, v. STATE HIGHWAY COMMISSION, Respondent.

Page 133

138 S.E.2d 133

262 N.C. 522

G. T. WESCOTT, Petitioner, v. STATE HIGHWAY COMMISSION, Respondent.

No. 22.

Supreme Court of North Carolina.

Sept. 23, 1964.

Frank B. Aycock, Jr., and Worth & Horner, Elizabeth City, for appellant.

T. W. Bruton, Atty. Gen., Harrison Lewis, Asst. Atty. Gen., Henry T. Rosser, Raleigh, Aydlett & White, Elizabeth City, for appellee.

RODMAN, Justice.

G.S. § 136-108, on which respondent relies to defeat petitioner's asserted right of jury trial, has no application to the question presented for decision. That section is a part of Art. 9, c. 136 of the General Statutes. It was enacted in 1959, c. 1025, S.L.1959. By express provision of the enacting statute, sections 3 and 4, it applies only to proceedings begun subsequent to July 1, 1960. Barnes v. North Carolina State Highway Commission, 257 N.C. 507, 126 N.E.2d 732.

This proceeding, begun March 1, 1960, is governed by the provisions of G.S. § 136-19, as it read on the date summons issued. The controlling procedural statutes are, by G.S. § 136-19, contained in the chapter on Eminent Domain. The statute here applicable is G.S. § 40-16, which provides in part: 'The court shall hear the proofs and allegations of the parties, and if no sufficient cause is shown against granting the prayer of the petition, it shall make an order for the appointment of three disinterested and competent freeholders who reside in the county where the premises are to be appraised * * *.' The language of the statute necessitates an examination of the pleadings, including statutory pleas, to ascertain what issues of fact and what questions of fact are presented.

Petitioner alleged these facts: He owns a tract of land known as the Casino; respondent has taken a portion of this property for the construction of a highway; petitioner, because of the taking, is entitled to compensation. These allegations, if true, entitled petitioner to compensation for the property taken. N. C. Constitution, Art. 1, sec. 17.

The answer admitted the construction of the highway over petitioner's Casino property. It denied petitioner was entitled to compensation because he had by writing, copy of which is annexed to the answer, granted respondent the right to construct and maintain the road.

The defense asserted, if established, was a complete bar to petitioner's claim for compensation. The right to build the highway across petitioner's land pursuant to the right of way agreement was new matter and, as such, was deemed controverted by the petitioner 'as upon a direct denial or avoidance, as the case requires,' G.S. § 1-159.

There is lack of uniformity in the laws of the several states with respect to replies. Those states which have code provisions similar to ours hold that it is not necessary to plead, by reply, fraud or mistake to avoid a contract set up in the answer as a bar to plaintiff's claim. Metropolitan Life Ins. Co. v. Hale, 47 Ga.App. 674, 171 S.E. 306; Harmon v. Givens, 88 Ga.App. 629, 77 S.E.2d 223; Galphin v. Pioneer Life Ins. Co., 157 S.C. 469, 154 S.E. 855; McDowell v. Southern Ry. Co., 113 S.C. 399, 102 S.E. 639; Watson v. Poore, 18 Cal.2d 75, 115 P.2d 478; 71 C.J.S. Pleading § 185, pp. 377-379.

Our statute was patterned on sec. 243 of the New York Civil Practice Act. The courts of New York have consistently held that fraud, to avoid a release set up in the answer to defeat a cause of action, need not be pleaded. Babcock v. Clark, 93 App.Div. 119, 86 N.Y.S. 976; Keeler v. Keeler, 102 N.Y. 30, 6 N.E. 678; Lynch v. Figge, 200 App.Div. 92, 192 N.Y.S. 873; Davis Confectionery Co. v. Rochester German Ins. Co., 141 App.Div. 909, 126 N.Y.S. 723; Meyer v. Lathrop, 73 N.Y. 315.

Petitioner, unless required by court order, G.S. § 1-141, could, without written pleading, show facts which made the writing on which respondent relied a nullity. Gamble v. Stutts, 262 N.C. 276, 136 S.E.2d 688; Oldham v. Rieger, 145 N.C. 254, 58 S.E. 1091; Fishblate v. Fidelity & Casualty Co., 140 N.C. 589, 53 S.E. 354; 1 McIntosh, N.C. Practice and Procedure, 705-6.

Petitioner, in the absence of the jury, testified: 'I do not understand maps. I have never had any experience in surveying or engineering. At the time I signed this EXHIBIT 'B' I did not see any map showing any red location of survey between Wright Memorial Bridge and Whalebone intersection * * * I told him [the person who acted for the Highway Commission in getting the agreement signed] I had some land in front of the Carolinian I would be glad for him to come through but so far as the parking lot I could not get rid of any of that, so far as the Casino property is concerned I told him I wouldn't want to get rid of any of that or give away any of that, that it would ruin my parking lot. I told him I wouldn't sign it if it was going over my Casino property. I was relying on what Mr. Swain told me. I made that statement to him that I would not sign it if it included any of my Casino property * * * I signed what he had down there and he said it wouldn't bother my Casino property but for me to sign it and it would help him to get others to sign it. I would not have signed this purported contract, EXHIBIT 'B', if I had known at the time that it was to cover any part of my Casino property.' This evidence, if found by a jury to be true, would invalidate the agreement as it might relate to the Casino property. Nixon v. Nixon, 260 N.C. 251, 132 S.E.2d 590; Mills v. Lynch, 259 N.C. 359, 130 S.E.2d 541; Davis v. Davis, 256 N.C. 468, 124 S.E.2d 130; Ward v. Heath, 222 N.C. 470, 24 S.E.2d 5.

'In all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable,' N. C. Constitution, Art. 1, sec. 19. This is a constitutional guaranty of jury trial when the issue determinative of the rights of the litigants is: 'Who owns the land, plaintiff or defendant?'

That issue does not arise when the state, or its agency, exercises the power of eminent domain. The phrase 'eminent domain' by definition admits condemnor did not own, but took or appropriated the property of another for a public purpose. Webster, Third New International Dictionary; Cyclopedic Law Dictionary; 29 C.J.S. Eminent Domain § 1, p. 776; 18 Am.Jur. 631; G.S. § 136-19; G.S. § 136-103; Virginia Electric & Power Co. v. King, 259 N.C. 219, 130 S.E.2d 318; Redevelopment Com. v. Hagins, 258 N.C. 220, 128 S.E.2d 391; Williams v. State Highway Com., 252 N.C. 141, 113 S.E.2d 263; Hedrick v. Graham, 245 N.C. 249, 96 S.E.2d 129; Jeffress v. Town of Greenville, 154 N.C. 490, 70 S.E. 919; Raleigh and Gaston Railroad Co. v. Davis, 19 N.C. 451.

When respondent denied petitioner was entitled to compensation because it, not petitioner, was the owner of the property rights in controversy, respondent, in effect, converted what began as a condemnation proceeding into an action in ejectment or trespass to try title. On that issue petitioner was entitled to a jury trial. Sparks v. Sparks, 232 N.C. 492, 61 S.E.2d 356; Grantham v. Nunn, 188 N.C. 239, 124 S.E. 309; Board of Comrs. of Stokes County v. George, 182 N.C. 414, 109 S.E. 77; Crews v. Crews, 175 N.C. 168, 95 S.E. 149; Wilson v. Featherstone, 120 N.C. 446, 27 S.E. 124; Worthy v. Shields, 90 N.C. 192; State v. Beasley, 75 N.C. 211.

When the taking by the sovereign is conceded, questions preliminary to the determination of the amount to be paid are questions of fact to be determined by the court--not issues of fact which must be determined by a jury. This is the basis for the conclusion reached in Kaperonis v. North Carolina State Highway Commission, 260 N.C. 587, 133 S.E.2d 464, holding G.S. § 136-108 cons...