Wilcox v. North Carolina State Highway Commission
| Decision Date | 10 June 1971 |
| Docket Number | No. 95,95 |
| Citation | 181 S.E.2d 435,279 N.C. 185 |
| Court | North Carolina Supreme Court |
| Parties | H. Allen WILCOX v. NORTH CAROLINA STATE HIGHWAY COMMISSION. |
Gene H. Kendall, Charlotte, for plaintiff appellant.
Atty. Gen. Robert Morgan, Deputy Atty. Gen. R. Bruce White, Asst. Atty. Gen. Andrew McDaniel, for defendant appellee.
In pertinent part G.S. 136--111 provides: 'Any person whose land or compensable interest therein has been taken by an intentional or unintentional act or omission of the Highway Commission and no complaint and declaration of taking has been filed by said Highway Commission may, within twenty-four (24) months of the date of said taking, file a complaint in the superior court * * * for the purpose of determining all matters raised by the pleadings and the determination of just compensation.' The portion omitted from the preceding quotation relates to procedural requirements.
Commission concedes that the taking of the easements across plaintiff's two lots was an intentional act and that it filed no complaint or declaration of taking. Although Commission alleges that the portion of plaintiff's property which was used to widen Eastway Drive was included within a right-of-way it had previously acquired, it now defends solely on the ground that plaintiff's action is barred by the requirement of G.S. 136--111 that the action be brought within twenty-four months of the date of the taking.
Plaintiff, unable to gainsay that he instituted this action more than two years after the taking, for the first time, asserted in his assignments of error that G.S. 136--111 is unconstitutional as applied to the facts of this case. He contends that when the State took the easements in suit it had no intention of compensating him and, in such a case, due process requires written notice to the landowner that he will receive no compensation unless he brings suit within the specified time.
Having failed to question the constitutionality of G.S. 136--111 in the trial court, plaintiff may not on appeal attack the statute upon that ground. 'It is a well established rule of this Court that it will not decide a constitutional question which was not raised or considered in the court below.' Johnson v. N.C. State Highway Commission, 259 N.C. 371, 373, 130 S.E.2d 544, 546. Accord, Bland v. City of Wilmington, 278 N.C. 657, 180 S.E.2d 813. See also Ramsey v. N.C. Veterans Commission, 261 N.C. 645, 135 S.E.2d 659; Sheets v. Walsh, 217 N.C. 32, 6...
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...in his common law action for damages. See also 1 Am.Jur.2d Actions Sections 75-76 (1962). Similarly, in Wilcox v. N.C. State Highway Comm., 279 N.C. 185, 181 S.E.2d 435 (1971) the court affirmed a ruling that the two-year statute of limitations constituted a "complete defense" to the action......
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