Van Leuven v. Akers Motor Lines, Inc. , 261 N.C. 539 ( 1964 )

135 S.E.2d 640 (1964) 261 N.C. 539

Lewis VAN LEUVEN and Ruth Ardrey Van Leuven
v.
AKERS MOTOR LINES, INC., a corporation.

No. 244.

Supreme Court of North Carolina.

April 8, 1964.

Hollowell & Stott, Gastonia, Helms, Mulliss, McMillan & Johnston, Charlotte, for defendant.

No counsel contra.

DENNY, Chief Justice.

The defendant's first assignment of error is to the ruling of the court below that the sewer line of the defendant is a burden on plaintiffs' lot in addition to that of the highway easement for travel, and that the plaintiffs are entitled to maintain this action against the defendant for the imposition of this additional burden.

The State Highway Commission or its duly authorized officers may give in writing a permit to an individual, firm or corporation authorizing the holder of such permit to construct or install a sewer line within the right of way along any highway under the control of the Commission, provided the installation of such sewer line is made under the supervision and to the satisfaction of the Commission or its officers or employees. G.S. § 136-93.

In the case of North Carolina State Highway Commission v. Young, 200 N.C. 603, 158 S.E. 91, this Court upheld an ordinance passed by the State Highway Commission pursuant to statutory authorization to the effect, "That the right of way of all state highways, except as otherwise designated by appropriate signs on the ground, shall extend thirty feet from the center of the highway on either side * * *; and it shall be unlawful for any person to construct or maintain any structure within the limits of said right of way, except with the written permission of the State Highway [Commission]."

Likewise, the State Highway Commission is empowered by G.S. § 136-18(10), "To make proper and reasonable rules, regulations and ordinances for the placing or erection of telephone, telegraph or other poles, signboards, fences, gas, water, sewerage, oil, or other pipe lines, and other similar obstructions that may, in the opinion of the Highway Commission, contribute to the hazard upon any of the said highways or in anywise interfere with the same, and to make reasonable rules and regulations for the proper control thereof. And whenever the order of the said Commission shall require the removal of, or changes in, the location of telephone, telegraph, or other poles, signboards, fences, gas, water, sewerage, oil or other pipe lines, or other similar obstructions, the owners thereof shall at their own expense move or change the same to conform to the order of the said Commission."

In Hildebrand v. Southern Bell Telephone & Telegraph Co., 219 N.C. 402, 14 S.E.2d 252, it is said: "It may be conceded that the easement acquired by the State for a public highway is, under existing law, so extensive in nature and the control exercised by the Highway Commission is so exclusive in extent that the subservient estate in the land, from a practical standpoint, amounts to little more than the right of reverter in the event the easement is abandoned. Nevertheless, the subservient estate still exists and any encroachment thereon entitles the owner to nominal damages at least."

In the case of North Carolina State Highway Commission v. Black, 239 N.C. 198, 79 S.E.2d 778, this Court said: "Where it (the State Highway Commission) exercises the power of eminent domain vested in it by the statute codified as G.S. 136-19 and in that way appropriates the land of another to public use as the right of way for a public highway, the State Highway and Public Works Commission acquires once for all the complete legal right to use the entire right of way for highway purposes as long as time shall last. From the viewpoint of practicality, the difference between an easement of this nature and extent and a fee-simple estate in the land covered by the right of way is negligible."

In Hildebrand v. Southern Bell Telephone & Telegraph Co., 221 N.C. 10, 18 S.E.2d 827, in discussing the control of highway easements by the State Highway Commission, this Court said: "The State Highway and Public Works Commission has been granted exclusive control over the State Highway system. Ch. 2, Sec. 10(b), P.L.1921, as amended. It has full authority to make proper and reasonable rules, regulations and ordinances for the placing or erection of telephone, telegraph or other poles within the right of way and it may, at any time, require the removal of, change in, or relocation of any such poles. Ch. 160, Sec. 1, P.L.1923. That said Commission may in its discretion authorize the use of the highway right of way by telephone and telegraph companies is not seriously debated. This authority, however, is subject to the right of the owner of the servient estate to payment for the additional burden." Grimes v. Virginia Electric & Power Co., 245 N.C. 583, 96 S.E.2d 713.

The first assignment of error is overruled.

The defendant's second assignment of error challenges the correctness of the ruling of the court below to the effect that, "(t)he defendant's plea that it had permission to construct and maintain the sewer line within the highway easement from the State Highway Commission is not a bar to this action but may be properly pleaded for its bearing on the question of damages." In our opinion, this ruling was proper and we so hold. However, the damages recoverable are limited to damages flowing from the imposition of the added burden on the pre-existing easement.

The State Highway Commission had the right to grant the permit to the defendant to lay its sewer line within the Commission's easement across the property of the plaintiffs, but it did not and does not have the power to relieve the defendant from liability to compensate the plaintiffs for the added burden the State Highway Commission permitted the defendant to put upon the preexisting easement.

The defendant is entitled to have the existence of the Highway Commission's easement considered in mitigation of damages. It is proper to show the existence of a pre-existing easement when assessing damages for an additional one in order to limit recovery only for the difference in the fair market value of the land involved subject to the pre-existing easement immediately before and immediately after subjecting it to the added burden. Nantahala Power & Light Co. v. Sloan, 227 N.C. 151, 41 S.E.2d 361, and cited cases.

Assignment of error No. 2 is overruled.

The defendant's third assignment of error is directed to the ruling of the court below to the effect that "(t)he plaintiffs have a single cause of action for trespass by the defendant in the construction and maintenance of the sewer line through their lot, for the taking of the added easement and the plaintiffs cannot split this action to recover damages for the period from the initial trespass to the time of the institution of this action and thereafter bring successive actions for the continued maintenance of the sewer line through plaintiffs' lot." The effect of this ruling was tantamount to a holding that since the additional burden resulting from the laying of the pipe line was permanent in nature, the plaintiffs would be allowed to seek permanent damages in this action. From this ruling the plaintiffs did not appeal.

On the other hand, the defendant takes the position that any claim for damages in connection with the laying of its pipe line across the premises of the plaintiffs within the boundaries of the State Highway Commission's easement across said property, had to be asserted in the original action; therefore, it contends the plaintiffs are now estopped to maintain this action and that the lower court should have so held.

A careful consideration of the pleadings in these two actions leads us to the conclusion that the plaintiff in the first action might have asserted a claim for damages, However, it is quite clear that the plaintiff in the first action sought injunctive relief only. This relief was sought upon the theory that since the defendant was a common carrier of freight by motor vehicles and did not possess the power of eminent domain, it could not construct its sewer line across his premises without his consent. Therefore, he pressed for injunctive relief at first, to prevent the construction of the sewer line, and after the line was completed, he was permitted to amend and ask for a mandatory injunction requiring the removal of the sewer line from his premises. Failing in that, the present plaintiffs instituted this action at law for the possession of their property and for damages.

The court below held that the plaintiffs were not entitled to the possession of their premises free from the burden of the defendant's sewer line, and from this ruling they did not appeal.

An examination of the pleadings in the original action reveals the fact that the defendant in its answer alleged that the plaintiff was not entitled to injunctive relief on the ground that he had an adequate remedy at law for damages. Furthermore, the authorities in this country on the point raised are sharply conflicting. Sanders v. Atlantic Coast Line R. R., 216 N.C. 312, 4 S.E.2d 902; Sanders v. Smithfield, 221 N.C. 166, 19 S.E.2d 630; 26 A.L.R.2d Anno.: Injunction—Bar—Action for Damages, page 446, et seq., and A.L.R. Supplement Service 1960, Volume 2, page 2162.

We are of the opinion, in light of the pleadings filed in the former action by the respective parties, that the plaintiffs are entitled to maintain this action for nominal damages at least. Even so, such damages will be limited to compensation only for the added burden on the pre-existing easement of the State Highway Commission.

Assignment of error No. 3 is overruled.

Defendant further assigns as error the failure of the court below to hold that since the claim for punitive damages was not set up in the first action, these plaintiffs are estopped from asserting such claim in the present action. This assignment of error will not be upheld for the reason assigned. However, there is no factual basis disclosed by the pleadings in this action that would warrant the recovery of punitive damages. What the defendant did was in conformity with and pursuant to a permit granted by the State Highway Commission as authorized in G.S. § 136-93.

"Punitive damages may be awarded only where the wrong is done wilfully or under circumstances of rudeness, oppression or in a manner which evinces a reckless and wanton disregard of the litigant's rights." General Tire & Rubber Co. v. Distributors, Inc., 253 N.C. 459, 117 S.E.2d 479; Hinson v. Dawson, 244 N.C. 23, 92 S.E.2d 393, 62 A.L.R.2d 806; Lutz Industries, Inc. v. Dixie Home Stores, 242 N.C. 332, 88 S.E.2d 333; Swinton v. Savoy Realty Co., 236 N.C. 723, 73 S.E.2d 785; Baker v. Winslow, 184 N.C. 1, 113 S.E. 570; Hays v. Askew, 52 N.C. 272.

The judgment entered below is

Affirmed.