Carolina Beach Fishing Pier, Inc. v. Town of Carolina Beach , 274 N.C. 362 ( 1968 )

163 S.E.2d 363 (1968) 274 N.C. 362

CAROLINA BEACH FISHING PIER, INC.
v.
The TOWN OF CAROLINA BEACH, North Carolina.

No. 192.

Supreme Court of North Carolina.

October 9, 1968.

John C. Wessell, Jr., and George Rountree, Jr., Wilmington, for plaintiff appellant.

Addison Hewlett, Jr., and Hogue, Hill & Rowe, by Ronald D. Rowe, Wilmington, for defendant appellee.

PARKER, Chief Justice.

Plaintiff has one assignment of error, which reads as follows: "That the lower Court erred in signing the Judgment of Record dismissing the plaintiff's cause of action as being time barred by the provisions of Chapter 511, Session Laws of 1963."

This sole assignment of error to the signing of the judgment presents the face of the record proper for review, but review is limited to the question of whether error of law appears on the face of the record, which includes whether the facts found or admitted support the judgment, and whether the judgment is regular in form. Plaintiff's sole assignment of error does not present for review the findings of fact or the sufficiency of the evidence to support them. 1 Strong, N.C.Index 2d, Appeal and Error, § 26.

Section 2 of Chapter 511, Session Laws of 1963, at its beginning reads as follows:

"Within thirty (30) days from the date of the completion of said work to be carried on by the Town of Carolina Beach and referred to in the preamble hereof, the said Town of Carolina Beach shall, at its own cost, survey or have surveyed by a competent engineer a line to be known as ``the building line' referred to in Section 1 of this Act * * *, and after ``the building line' shall have been surveyed and fixed and determined, the said authorities of the Town of Carolina Beach shall immediately cause to be prepared a map showing, fixing, and determining ``the building line,' which map so prepared shall be immediately recorded in the office of the Register of Deeds of New Hanover County in a map book kept for said purposes. * * *" (Emphasis ours.)

The preamble of the Act referred to is as follows:

"WHEREAS, during the course of many years in the Town of Carolina Beach, in the County of New Hanover, North Carolina, much of the land abutting and fronting on the Atlantic Ocean in said town formerly belonging to various property owners has been and is now being washed away by successive storms, tides and winds; and

"WHEREAS, the said Town of Carolina Beach, with aid from the State of North Carolina, the United States Government, and with its own funds, has from time to time made available funds with which to control the erosion caused by said tides and winds and other causes, and to that end the said town has pumped sand from Myrtle Grove Sound and also pushed up sand and hauled sand, and as a result thereof there has been, is now, and will be made and constructed new land on the ocean front of said town which will change the ordinary and usual low water mark of the waters of the Atlantic Ocean along the front of said town, and when the work has been completed the question will arise as to whom title to the said new land shall belong; and

"WHEREAS, it is the desire of the authorities of the Town of Carolina Beach, as well as the State of North Carolina, to fix and define the title to such new land and to fix and determine its use, and to further define the littoral rights of the property owners abutting on the ocean front which will be destroyed or taken by and through the making of such new made lands; Now, therefore * * *"

Section 2 of Chapter 511, Session Laws of 1963, at its beginning states in positive, clear, and unambiguous words that "within thirty (30) days from the date of the completion of said work to be carried on by the Town of Carolina Beach and referred to in the preamble hereof" the Town of Carolina Beach shall, at its own cost, survey or have surveyed by a competent engineer a line to be known as "the building line," and that after "the building line" shall have been surveyed and fixed and determined, the authorities of the said town of Carolina Beach shall immediately cause to be prepared a map and record the map in the Register of Deeds office in New Hanover County in a map book kept for said purpose. The word "complete" is defined in Webster's Third New International Dictionary in part as follows: "1: to bring to an end often into or as if into a finished or perfected state. * * * 2 a: to make whole, entire or perfect * * *; b: to mark the end of. * * *"

This is said in Daniel v. New Amsterdam Casualty Co., 221 N.C. 75, 18 S.E.2d 819:

"We do not consider that the work is complete within the meaning of the insurance contract so long as the workman has omitted or altogether failed to perform some substantial requirement essential to its functioning, the performance of which the owner still has a contractual right to demand."

Section 3 of the Act referred to states as follows:

"Any property owner or claimant of land who is in any manner affected by the provisions of this Act, and who does not bring suit against the Town of Carolina Beach, or assert such claims by filing notice thereof with the governing body of the town, either or both, as the case may be, or any claimant thereto under the provisions of this Act, or their successor or successors in title, within six (6) months after ``the building line' is surveyed and established * * * shall be forever bound from maintaining any action for redress upon such claim."

This is said in In re Hickerson, 235 N.C. 716, 71 S.E.2d 129:

"In this connection, in State v. Barksdale, 181 N.C. 621, 107 S.E. 505, 507, this Court, in opinion by Hoke, J., stated that parts of the same statute, and dealing with the same subject are ``to be considered and interpreted as a whole, and in such case it is the accepted principle of statutory construction that every part of the law shall be given effect if this can be done by any fair and reasonable intendment, and it is further and fully established that where a literal interpretation of the language of a statute will lead to absurd results, or contravene the manifest purpose of the Legislature, as otherwise expressed, the reason and purpose of the law shall control and the strict letter thereof shall be disregarded,' citing State v. Earnhardt, 170 N.C. 725, 86 S.E. 960; Abernethy v. Board of Com'rs, [of Pitt County] 169 N.C. 631, 86 S.E. 577; Fortune v. Board of Com'rs of Buncombe County, 140 N.C. 322, 52 S.E. 950; Keith v. Lockhart, 171 N.C. 451, 88 S.E. 640; Black on Interpretation of Laws (2d), pp. 23-66."

Considering and interpreting the statute here as a whole, and giving effect to every part of it, we think the fair and reasonable intendment and language of the statute is that the limitation of actions set forth in Section 3 of the Act does not begin to run until 30 days from the date of the completion of said work to be carried on or carried on by the Town of Carolina Beach. In other words, a reasonable reading of the Act indicates that it was the intention of the Legislature that the work of building the berm or seawall by defendant should be completed prior to the surveying and determining and fixing and recording a map of "the building line," and that then "the building line" was to be surveyed, fixed and determined, and mapped, and the map recorded within the office of the Register of Deeds within 30 days thereafter. It seems to have been the plain purpose of the Act to have the work completed before "the building line" was established as provided in the Act, so that all property owners whose land was taken would have full and actual notice of the taking, and they could then have six months to inquire, after registration, for exact information and to take steps for just compensation. Until the berm or seawall was completed a person could not tell by seeing his land what land of his would be taken, or if any at all would be taken. The legislative purpose could not have been to make a survey party and a map recorded in the Registry (little visited except by lawyers) constructive notice of taking a man's private property for public use without payment of just compensation, even if, which we do not concede, the language of the Act requiring a recordation of the map as aforesaid comes within the purview of the registration statutes. Registration is not constructive notice as to provisions not coming within the purview of the registration statutes even though such provisions are embodied in an instrument required to be registered. Chandler v. Cameron, 229 N.C. 62, 47 S.E.2d 528; 3 A.L.R. 2d 571. The procedure of making a survey and recording a map before the work is completed, and thereby starting the running of the statute, could scarcely be said to afford an adequate remedy to plaintiff for the determination of damages to it for its private property taken by the town of Carolina Beach for a public use.

This is said in 53 C.J.S. Limitations of Actions § 3, p. 912: "* * * (I)t is a familiar principle that a statute of limitations should not be applied to cases not clearly within its provisions; it should not be extended by construction." In 34 Am.Jur. Limitation of Actions § 37, it is said: "It is well settled that when there is doubt as to the time when the limitation commences to run, that construction should be given which is most favorable to the enforcement of the common-law rights of the citizen."

Plaintiff's suit here is for damages for taking its private property for a public use without the payment of just compensation. As has been repeatedly said, the right of private property is a fundamental, material, inherent and inalienable right. It is a common-law right which existed before the adoption of the Federal and State Constitutions. Such a right is guaranteed by the Federal and State Constitutions. 16 C.J.S. Constitutional Law § 209 a; 16 Am.Jur.2d Constitutional Law § 362. It is hornbook law that the private property of a citizen cannot be taken for a public use by the State or by a municipal corporation without the payment of just compensation. This legal requirement is guaranteed by the 14th Amendment to the Federal Constitution and by Article I, section 17, of the State Constitution. Barnes v. Highway Commission, 250 N.C. 378, 109 S.E.2d 219; Sale v. Highway and Public Works Commission, 242 N.C. 612, 89 S.E.2d 290; Mt. Olive v. Cowan, 235 N.C. 259, 69 S.E.2d 525; Madisonville Traction Co. v. St. Bernard Min. Co., 196 U.S. 239, 25 S. Ct. 251, 49 L. Ed. 462; 3 Strong, N.C. Index 2d, Eminent Domain, § 1; 26 Am.Jur.2d Eminent Domain § 7; 29A C.J.S. Eminent Domain § 97. The constitutional prohibition against taking the private property of a citizen for public use without the payment of just compensation is self-executing and is not subject to impairment by legislation. Sale v. Highway Commission, supra.

There is nothing in the record to indicate that the town of Carolina Beach has brought any condemnation proceeding against plaintiff. It is familiar learning that a citizen may sue the State or one of its subdivisions, namely, a municipality, for taking his private property for a public purpose under the Constitution where no statute affords an adequate remedy. Midgett v. Highway Commission, 260 N.C. 241, 132 S.E.2d 599.

This is said in Aylmore v. City of Seattle, 100 Wash. 515, 171 P. 659, L.R.A.1918E, 127:

"Upon what principle of law, justice, or reason can it be said that because one clothed with the right to condemn private property fails to exercise it, and without complying with the law goes upon the property of another and carries out its public purposes without hindrance or interference from the owner, it should not thereafter be required to do what it should have done in the first instance—make just compensation to the owner? Why should the property holder whose acquiescence has redounded to the benefit and convenience of the taker and whose right to compensation is in lieu of his property have any less period in which to recover the amount due him than he would have had to reclaim his property had he not thus accommodated the corporation? Why should a municipality which has not exercised a right conferred upon it by the sovereignty in the manner defined by the author of the right gain an additional advantage over a private owner by virtue of its own unauthorized procedure?"

In its answer the defendant admitted that it built a berm or seawall as alleged in the complaint and pleaded Chapter 511, Session Laws of 1963, and that the map showing said "building line" was recorded on 8 May 1964, and this action was filed more than six months after the recordation of said map, and that plaintiff's failure to bring this action within six months after the recording of said map is a bar to any recovery by it and is expressly pleaded as a bar to recovery. Defendant has not pleaded that the work was completed when "the building line" was surveyed and established and a map recorded. The defendant contends here, as concluded as a matter of law in the referee's report, that plaintiff instituted this action on 19 May 1965; that when the date on which the cause of action accrued appears in the complaint and a statute of limitations barring the action is pleaded, the defendant's plea in bar must be allowed when plaintiff fails to allege by reply any facts which will avoid the plea in bar by bringing the action within any particular exception or saving provision of the statute; that the plaintiff failed to file any reply in the action; and, consequently, plaintiff's action is barred. The fallacy in the conclusion of law by the referee and in the argument of defendant that plaintiff's action was barred by the limitation of time in which its action could be brought as set forth in Section 3 of the Act is demonstrated by the fact that defendant's plea of the time limitation upon the bringing of the action shows on its face that the action is not barred by the provisions of Section 3 of the Act.

This is clearly demonstrated by the referee's findings of fact as follows:

"It is not in dispute that a ``building line' was surveyed, determined and a map thereof prepared which was properly recorded in the Office of the Register of Deeds of New Hanover County on May 8, 1964. The plaintiff's action was not instituted until May 19, 1965, or something more than a year after the recordation of the map showing the building line. However, the evidence shows and it is not in dispute that the ``building line' was surveyed and established and the map thereof recorded before the completion of the work in construction of the sand berm. In fact, actual work of constructing the sand berm did not begin until December 15, 1964, and was not completed until June 9, 1965. Thus, the establishment and recordation of the building line was not only before the work was completed but before the work was even begun."

Defendant's answer and the findings of fact of the referee do not support the referee's conclusion and judgment that plaintiff's action was barred by limitation of time, as set forth in Section 3 of Chapter 511, Session Laws of 1963. The trial judge committed reversible error in approving and affirming the referee's report that the action of the plaintiff is barred by the provisions of the Act and dismissing the action.

The judgment of the lower court is reversed and the case is remanded to the Superior Court of New Hanover County, which court shall enter an order remanding the case to the referee with directions that the referee shall consider and answer the second, third, and fourth issues which were agreed upon by counsel for both sides, and shall make and deliver his report within the time ordered by the court to the clerk of the Superior Court of New Hanover County.

Reversed and remanded.