Frink v. North Carolina Board of Transportation , 1979 N.C. App. LEXIS 2751 ( 1979 )

VAUGHN, Judge.

The ultimate issue presented for resolution is whether these plaintiffs have a compensable interest in the land utilized by the State of North Carolina in the construction of the new bridge and roadway. We hold that they do not. In reaching this conclusion, however, it is not absolutely necessary to decide that the State did indeed acquire title in fee simple absolute. It suffices to say that when the State acquired its interest in the property for the canal right-of-way, it also clearly acquired the inherent right to construct bridges and roadways across the property.

We do elect to discuss, however, the question of whether the State acquired title in fee simple or whether it merely acquired an easement in all of the lands within the canal right-of-way. In Chapter Two of the Session Laws of 1931, neither the term “fee simple” nor the term “easement” is used. The act repeatedly uses “right-of-way” to describe the interest to be acquired by the State. In McCotter v. Barnes, 247 N.C. 480, 101 S.E. 2d 330 (1958), the Court stated that the term “right-of-way” has a twofold meaning. “[I]t may be used to designate an easement, and, apart from that, it may be used as descriptive of the use or purpose to which a strip of land is put.” McCotter v. Barnes, supra, at 485. In McCotter, the land in controversy had been used by the railroad until abandoned. The deed designated the land conveyed as a right-of-way. The Court held that a fee simple was conveyed, noting that it is common knowledge that the land over which railroad tracks are laid is often called the right-of-way to describe the use of the land and not the quality of the estate. Furthermore, the granting clause described the property conveyed as a “tract hereby conveyed”, with “right-of-way” used only in the description. Thus the description must yield to the granting clause conveying the fee. See also Pearson v. Chambers, 18 N.C. App. 403, 197 S.E. 2d 42 (1973); 77 C.J.S. Right 392 (1952).

In the statute in question, it appears that the term “right-of-way” is used to describe the use of the land and not to limit the State’s interest to an easement. Although H.R. 41, 71st Congress, 1st Session (1929) requires that the United States be given only an easement with the fee remaining in possession of local interests, this does not restrict the interest to be acquired by the State. We note that Section Two of the act provides that, in case of condemnation, all sums assessed in favor of the owners of property taken shall be a valid claim against the State “but the order of the clerk when entered in any condemnation proceeding shall divest the owner of the land condemned of all right, title, interest and possession in and to such land and property.” This provision seems to reflect an intention that the State was to acquire a fee. That opinion finds further support in the 1934 decree itself. In that judgment, the plaintiffs’ predecessors in title were divested of all of their “right, title, interest and estate in and to the lands, premises, and waters.” The conveyance of “all the right, title, and interest in the land is certainly sufficient to pass the land itself.” Coble v. Barringer, 171 N.C. 445, 448, 88 S.E. 518 (1916). Finally, the deed of the easement from the State to the United States asserted that the State was “the owner of and in the possession of” the land in question.

Plaintiffs have no compensable interest in the land utilized by defendant in the construction of the bridge and roadway within the canal right-of-way. The judgment of the trial court is, therefore, reversed.

Reversed.

Judges ERWIN and MARTIN (Harry C.) concur.