In re Condemnation of Property of Simmons , 5 N.C. App. 81 ( 1969 )

Campbell, J.

The date of the judgment appealed from is 22 August 1968. The record on appeal was docketed in this Court on 21 November 1968, one day after the ninety-day period for docketing expired. Therefore, this appeal may be dismissed under Rule 48 of the Rules of Practice in the Court of Appeals for failure to comply with Rule 5. However, we have nevertheless considered the appeal on its merits.

Petitioner’s first contention is that the presiding judge erred in sustaining the respondents’ motion to dismiss based upon the finding that petitioner failed to describe precisely the property sought to be condemned. In its brief, petitioner concedes “that there can be no proper condemnation without a description of the property condemned” and that “[a] controversy as to what land a condemnor is seeking to condemn has no place in a condemnation proceeding”. However, it is argued that the respondents were not misled by the absence of a precise description, because the whole tract owned by the respondents was described in the resolution and final resolution and because “[t]he resolution condemns any and all property rights that respondents may have which are in conflict with the widening of Church Street for a distance of 22 feet from its center line. Since the tract owned by respondents adjoins the east margin of Church Street, the property of respondents to be taken is that part of said tract lying between the old east margin of Church Street and the new east margin which new east margin will be 22 feet from the center line of Church Street.”

Chapter VI, Subchapter B, Article 1, Sections 6.103(a) (1) and 6.110(4) of Chapter 1137 of the 1959 Session Laws of North Carolina require that both the resolution and final resolution include a description of the property to be condemned. It is not necessary to describe an entire tract of land where only a portion is to be condemned. 6 Nichols on Eminent Domain, § 26.112, p. 175. In the instant case, the entire tract was described, and both of the resolutions stated that the curb line of Church Street was to be extended to a distance of 22 feet from the then existing center line. However, the specific portion to be condemned was not described, and no reference was made to any survey from which it could be determined. Neither the resolution nor the final resolution contained any information from which “the old east margin of Church Street” could be located and no reference was made to any source which would provide this information. “A controversy as to what land a condemnor is seeking to condemn has no place in a condemnation proceeding. It is for the condemnor to determine what land it seeks to condemn . . . and to describe it in its petition by reference to uncontroverted monuments. . . .” Light Company v. Creasman, 262 N.C. 390, 137 S.E. 2d 497.

“The petition must contain an accurate description of the land sought to be taken, so that the extent of the claim will appear on the record. In the absence of an opportunity to amend the petition, failure in this respect will invalidate the proceeding. This description should be, it is sometimes said, as accurate as is required in the case of a deed of land. At any rate it must be such that a surveyor could locate the parcel described without the aid of extrinsic evidence. ... It is no objection that the description is incomplete or unintelligible without consultation with a map or plan, if the map is referred to in the description and is filed with it, and taken together the map and the description make clear what is intended to be included in the taking. A map not referred to in the description cannot be considered. . . . Accuracy in the description is deemed essential. . . .” 6 Nichols on Eminent Domain, § 26.112, p. 176. See 29A C.J.S., Eminent Domain, §§ 259(a) and 259(d), pp. 1105 and 1113; 27 Am. Jur. 2d, Eminent Domain,. § 396, p. 274.

The first contention is without merit.

Petitioner’s second contention is that the presiding judge erred in sustaining the respondents’ motion to dismiss based upon the finding that petitioner claimed title to the property sought to be condemned. In its brief, petitioner stated:

“The fact that the resolutions may have raised some questions of title should not have been a ground for dismissal; they should have been disregarded and the Trial Court should have proceeded to try the issue of damages.”

Chapter VI, Subchapter B, Article 1, Sections 6.103(a) (4) (6), 6.110(6), 6.111 and 6.112 of Chapter 1137 clearly indicate that a condemnation proceeding is to involve two sides, petitioner and the owner or owners of the property to be condemned. There is no provision for the exercise of the power of eminent domain where title is claimed by petitioner. Such a provision would in fact be contrary to and inconsistent with the definition of condemnation. “The phrase ‘condemnation’ or ‘exercise of the power of eminent domain’ by its very definition admits the condemnor did not own or have title to the land, but rather that it took or appropriated the property of another for public use. . . .” Hughes v. Hwy. Comm., 2 N.C. App. 1, 162 S.E. 2d 661. Wescott v. Highway Commission, 262 N.C. 522, 138 S.E. 2d 133; 29A C.J.S., Eminent Domain, § 260, p. 1113; 27 Am. Jur. 2d, Eminent Domain, § 405, p. 287. Condemnation is defined in Black’s Law Dictionary, 4th Ed., as follows:

“The process by which [real] property of a private owner is taken for public use, without his consent, but upon the award and payment of just compensation, being in the nature of a forced sale and eondemner stands toward owner as buyer toward seller.”

“[T]he petitioner is estopped from showing that title is in the public or in itself, by dedication, prescription or otherwise, if it has alleged in its petition that the respondent is the owner. If the petitioner claims title to the land which it wishes to occupy, a petition for condemnation is not the proper proceeding to institute for the purpose of trying the question.” 2 Nichols on Eminent Domain, § 5.2 [2], p. 22.

In Power Co. v. King, 259 N.C. 219, 130 S.E. 2d 318, the Supreme Court quoted with approval from Grand River Dam Authority v. Simpson, 192 Okla. 338, 136 P. 2d 879, as follows:

“ ‘The institution of the proceeding admits the ownership. The condemnor cannot claim the beneficial ownership of the land and at the same time assert that the condemnee claims all or some part of that interest; the proceeding in condemnation can.not be employed as a means to quiet title; and the right to exercise the power of eminent domain is dependent entirely upon the ownership being in some one other than the condemnor; the power to condemn negatives ownership in the condemnor.’ ”■

In Houston North Shore Ry. Co. v. Tyrrell, 128 Tex. 248, 98 S.W. 2d 786, the Supreme Court of Texas stated:

“. . . ‘A party cannot proceed to condemn land as the property of another and then in that same proceeding set up a paramount right or title in itself either by prescription, dedication or otherwise.’ Lewis’ Eminent Domain (3d Ed.) § 441, vol. 2, p. 1137. If the petitioner in condemnation claims the fee title to. the property, his petition should be dismissed. . . . The reasons for the foregoing general rules are: That there is irreconcilable inconsistency between an allegation by the condemnor of the entire title, or a paramount title, in himself, and the taking of the property of another by the proceeding; that condena nation, rests upon necessity, and there can be no necessity, .to acquire what one already owns. . . .”

Petitioner, however, expressly denied in, the. resolution that the respondents had any title to or rights in the property, and .this position was reaffirmed in the final resolution. Petitioner nevertheless sought to settle the issue of damages before the- issue of ownership was resolved. In Hertford v. Harris, 263 N.C. 776, 140 S.E. 2d 420, a case in which there was no dispute over title between the town and the owners, the Supreme Court stated:

“. . . A governmental agency has no need or right to condemn property which it owns. . . . Where controversy exists between condemnor and condemnee as to which has title, logic would seem to dictate that value should be ascertained only after these rights have been determined. . . .”

The best interests of efficient judicial administration would not be served by determining the issue of damages prior to determining the issue of title.

“The [respondents’] ownership of the property sought to be condemned lies at the very foundation of the [petitioner’s] jurisdiction. To permit the [petitioner] to claim title in the public way it seeks to condemn deprives the proceedings of all foundation. It would render the judicial condemnation proceedings nothing but a sham. . . .” Demers v. City of Montpelier, 120 Vt. 380, 141 A. 2d 676.

Therefore, it was not incumbent upon the presiding judge to disregard such an express contention and “to try the issue of damages”.

The second contention is without merit.

Petitioner’s third contention is that the presiding judge erred in denying petitioner’s motion to amend the resolution and final resolution in order to provide that the respondents owned the property to be condemned and to describe same specifically. “The granting of a motion to amend lies in the discretion of the court.” 6 Nichols on Eminent Domain, § 26.21, p. 248. 29A C.J.S., Eminent Domain, § 265, p. 1124.

There is no provision for an absolute right to amend the condemnation resolutions in Chapter 1137. Chapter VI, Subchapter B, Article 1, Section 6.113 of Chapter 1137 simply provides that “such appeal [to the superior court] shall be tried as other actions at law”. “[I]t has been uniformly held that the denial of a motion to amend, being a matter within the sound discretion of the trial court, is not reviewable upon appeal except in case of manifest abuse of discretion,” Hogsed v. Pearlman, 213 N.C. 240, 195 S.E. 789. No abuse of discretion has been made to appear in the instant case.

The third contention is without merit.

Affirmed.

BRItt and Morris, JJ., concur.