Board of Transportation v. Royster , 40 N.C. App. 1 ( 1979 )

251 S.E.2d 921 (1979)

BOARD OF TRANSPORTATION
v.
R. Maynard ROYSTER and wife, Grace T. Royster, County of Wake.

No. 7810SC273.

Court of Appeals of North Carolina.

February 20, 1979.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. R. W. Newsom, III, Raleigh, for the State.

Teague, Johnson, Patterson, Dilthey & Clay by Robert W. Kaylor, Raleigh, for defendants-appellants.

CLARK, Judge.

The defendants assign as error the trial court's denial of their motion to strike the Board of Transportation's second amended complaint and declaration of taking of Tract "B" by adding Tract "A", contending that by adding the separate tract, not contiguous to the Tract "B", a different and separate condemnation proceeding was instituted without strict adherence to the requirements of G.S. 136-103.

It is clear from the record on appeal that defendants owned two tracts of land separated by the Cary-Macedonia Road; that in the proceeding before us the Board of Transportation in its complaint described Tract "B" by mistake instead of Tract "A" and deposited $65,250.00, the estimated just compensation for Tract "A"; and that the purpose of amending the complaint was to correct the mistake by adding Tract "A" and depositing $3,075.00, the estimated just compensation for Tract "B", which originally was described in this proceeding.

G.S. 136-103 requires a description of "the entire tract or tracts" in both the declaration of taking and the complaint, and provides for amendment to both and an "increase [in] the amount of its deposit. . . ." If there is an amendment affecting the property, G.S. 136-104 requires a supplemental memorandum of action. The purpose of this requirement is that any amendment affecting the property taken will be entered in the land records of the county. State v. Johnson, 278 N.C. 126, 179 S.E.2d 371 (1971).

It is clear that under Article 9, Chapter 136, General Statutes of North Carolina, a single condemnation proceeding may include more than one tract of land, and that the proceeding may be amended to include additional land provided that the additional land is described in the complaint and declaration of taking and in the land records of the county through a memorandum of action as required by G.S. 136-104, and further, that the deposit is increased if the sum estimated for just compensation is increased. The condemnation statutes do not require that multiple tracts be contiguous in a condemnation proceeding.

A condemnation proceeding under Article 9, Chapter 136, is a civil action and is subject, as are other civil actions, to the Rules of Civil Procedure, G.S. 1A-1, Rule 1. Rule 18 removes all restrictions on the number or kinds of claims that may be joined by a party and moves the question of claims joinder into the area of trial or preparation for trial stage of the lawsuit. Shuford, N.C. Civil Practice and Procedure, § 18-3. Clearly, the Board of Transportation may include in a condemnation proceeding against an opposing party owner multiple tracts of land which are not contiguous.

In the case sub judice, since the Board of Transportation could have included both Tracts "A" and "B" in a single condemnation, the Board had the right to amend this proceeding by adding Tract "A", though Tract "A" was separated from Tract "B" by the Cary-Macedonia Road, provided that the amendment is made in compliance with the condemnation statutes, (Art. 9, Ch. 136, General Statutes of North Carolina), and the Rules of Civil Procedure, G.S. 1A-1. The Board amended its complaint under G.S. 1A-1, Rule 15(a), which provides for amendment without leave of court before a responsive pleading is served. The defendants had not served a responsive pleading upon the Board of Transportation. In denying the motion of the defendants to strike the second amended complaint and declaration, the trial court properly ruled that the Board of Transportation had complied with the amendment provisions of Rule 15(a) and the condemnation statutes.

The order of the trial court denying defendants' motion to strike does not prejudice the right of the defendants to raise relevant issues of fact or law in their responsive pleading or their right to move for severance under Rule 42(b) "in [the] furtherance of convenience or to avoid prejudice. . . ." Severance is not a matter of right but lies within the court's discretion. Aetna Insurance Co. v. Carroll's Transfer, Inc., 14 N.C.App. 481, 188 S.E.2d 612 (1972).

It is noted that the amendment not only adds a second tract to the proceeding but also seeks to correct a mistake which resulted in a deposit for fair compensation for lands not included in the original complaint and declaration of taking. When the condemnor has been an appraisal of lands taken but the lands described in the condemnation proceedings do not conform to the lands appraised, the condemnor may amend the proceeding to properly describe the lands upon which the appraisal was made. McClarren v. Jefferson School Township, 169 Ind. 140, 82 N.E. 73 (1907); Darrow v. Chicago L.S. & S.B. Ry., 169 Ind. 99, 81 N.E. 1081 (1907); Blissfield Community Schools District v. Strech, 346 Mich. 186, 77 N.W.2d 785 (1956).

We find no error in the order denying defendants' motion to strike plaintiff's second amendment of the complaint.

Plaintiff has appealed from the order of the trial court awarding defendants attorney fees in the sum of $240.00. G.S. 136-119 authorizes the landowner to recover attorney fees in cases of inverse condemnation, in cases in which the Board of Transportation has no right to condemn, and in cases abandoned by the Board. The case sub judice does not fall within any of the statutory categories, and therefore, the trial court erred in awarding counsel fees to defendants.

Affirmed as to the order denying defendants' motion to strike the second amended complaint and the order granting plaintiff immediate possession of Tract "A".

Reversed as to the order awarding counsel fees to defendants.

Affirmed in part; Reversed in part and Remanded.

VAUGHN and HEDRICK, JJ., concur.