NORTH CAROLINA STATE HIGHWAY COM'N v. Nuckles , 271 N.C. 1 ( 1967 )

155 S.E.2d 772 (1967) 271 N.C. 1

NORTH CAROLINA STATE HIGHWAY COMMISSION
v.
Arnold H. NUCKLES and wife, Elsie P. Nuckles, R. D. Douglas, Jr., Trustee, Home Federal Savings and Loan Association, George W. Gordon, Trustee for Julius M. Ozment and wife, Clara C. Ozment, Julius M. Ozment and wife, Clara C. Ozment, George W. Gordon, Trustee for H. L. Welborn, H. L. Welborn, the Texas Company, a corporation, American Commercial Bank, and Roy M. Booth, Trustee.

No. 688.

Supreme Court of North Carolina.

July 24, 1967.

T. W. Bruton, Atty. Gen., Harrison Lewis, Deputy Atty. Gen., T. Buie Costen, Staff Atty., Eugene Shaw, Jr., Associate Counsel, for plaintiff.

Thomas Turner; Seymour, Rollins & Rollins, Geensboro, for Arnold H. Nuckles and wife, Elsie P. Nuckles, defendants.

SHARP, Justice.

PLAINTIFF'S APPEAL

After the complaint, answer, bill of particulars, and plat were filed, it was revealed that, as to each of defendants' four tracts of land, there were two basic issues: (1) What land and appurtenances thereto, if any, was plaintiff taking in this action, and (2) what was just compensation for the property taken. With reference to (1), G.S. § 136-108 provides:

"Determination of issues other than damages.—After the filing of the plat, the judge, upon motion and ten (10) days' notice by either the Highway Commission or the owner, shall, either in or out of term, hear and determine any and all issues raised by the pleadings other than the issue of damages, including, but not limited to, if controverted, questions of necessary and proper parties, title to the land, interest taken, and area taken."

Defendants moved, under G.S. § 136-108, that the judge determine question (1), and, on 27 May 1965, Judge McLaughlin made that determination. He adjudged that plaintiff was taking from tracts 1 and 2 the shaded areas shown on the map; tract A; and all of tract 3 (including tract B), except that portion covered by the paved southbound lane of No. 29, which is shown in white on the map. Judge McLaughlin had the authority to determine these issues. Kaperonis v. North Carolina State Highway Commission, 260 N.C. 587, 133 S.E.2d 464. In addition to just compensation for the taking of these tracts, he decreed the defendants were entitled to any damages which had resulted to tract 4 from loss of access to U. S. 29.

Plaintiff's appeal and assignments of error relate only to Judge McLaughlin's findings of fact and conclusions of law as contained in his order determining issues other than damages. G.S. § 136-119 provides that, when the State Highway Commission condemns property under Article 9, Chapter 136 of the General Statutes of North Carolina, either party in the proceeding "shall have a right of appeal to the Supreme Court for errors of law committed in any (of the) proceedings provided for in this article in the same manner as in any other civil actions * * *." Appeals in civil actions are governed by G.S. § 1-277, which permits an appeal from every judicial order involving a matter of law which affects a substantial right. Ordinarily, an appeal lies only from a final judgment, but an interlocutory order which will work injury if not corrected before final judgment is appealable. Steele v. Moore Flesher Hauling Co., 260 N.C. 486, 133 S.E.2d 197. "(A) decision which disposes not of the whole but merely of a separate and distinct branch of the subject matter in litigation" is final in nature and is immediately appealable. 4 Am.Jur.2d, Appeal and Error § 53 (1962).

Judge McLaughlin's order established that, before the institution of this action, the only right-of-way which plaintiff had over defendants' land was the 24-foot lane of No. 29, which was paved in 1949. It, therefore, affected plaintiff's substantial rights. After it was filed, Judge McLaughlin's adjudication became the law of the case until reversed on appeal. It was immediately appealable, and—if plaintiff was unwilling to abide by it—plaintiff was required to give timely notice of appeal and to docket its appeal by 10:00 a. m. on Tuesday 26 October 1965. Rules of Practice in the Supreme Court of North Carolina, 5 and 17. Instead, plaintiff proceeded to trial upon the issue of damages and docketed its appeal with that of defendants at the Fall Term 1966.

Immediate appeal was the procedure followed in Johnson v. North Carolina State Highway Commission, 259 N.C. 371, 130 S.E.2d 544, a case involving a situation similar to this one. In Johnson, plaintiff landowners sued the Highway Commission for damages for an alleged taking of their property in relocating a highway. By answer, the State Highway Commission alleged, as here, that it owned a previously existing right-of-way over plaintiffs' property and that it was taking only an additional.15 acre. After a hearing under G.S. § 136-108, the court adjudged that .15 acre was all the additional land the Highway Commission was taking in the relocation project. Upon plaintiffs' appeal, we found error and remanded the case with no question raised as to his right of immediate appeal. In State Highway Commission v. Raleigh Farmers Market, 263 N.C. 622, 139 S.E.2d 904, the landowner appealed from an adjudication made under G.S. § 136-108 that it was entitled to compensation only for land taken and that its loss of access to U. S. Highway 1-A was not compensable. The court, noting that the question whether the appeal was premature had not been raised, reversed the ruling that defendant was not entitled to damage for its loss of access, and remanded the case for the assessment of all damages.

One of the purposes of G.S. § 136-108 was to eliminate from the jury trial any question as to what land the State Highway Commission is condemning and any question as to its title. Therefore, should there be a fundamental error in the judgment resolving these vital preliminary issues, ordinary prudence requires an immediate appeal, for that is the proper method to obtain relief from legal errors. G.S. § 1-277. It may not be obtained by application to another Superior Court judge. A judgment entered by one Superior Court judge may not be modified, reversed, or set aside by another. Nowell v. Neal, 249 N.C. 516, 107 S.E.2d 107.

Obviously, it would be an exercise in futility, completely thwarting the purpose of G.S. § 136-108, to have the jury assess damages to tracts 1, 2, 3, and 4 if plaintiff were condemning only tracts A and B, and the verdict would be set aside on appeal for errors committed by the judge in determining the "issues other than damages." As Bobbitt, J., said in Carolina Power & Light Company v. Creasman, 262 N.C. 390, 397, 137 S.E.2d 497, 502, "A controversy as to what land a condemnor is seeking to condemn has no place in a condemnation proceeding." For failure to perfect its appeal within the time required by our rules, plaintiff's appeal is dismissed.

In dismissing plaintiff's appeal, we deem the following comments pertinent: Notwithstanding evidence to the contrary, Judge McLaughlin's findings of fact were all supported by competent evidence. They are, therefore, conclusive on appeal. North Carolina State Highway Com. v. Brann, 243 N.C. 758, 92 S.E.2d 146; McIntosh, North Carolina Practice and Procedure § 1782(6) (2d Ed., 1956). Furthermore, his findings support his legal conclusions. Browning v. North Carolina State Highway Commission, 263 N.C. 130, 139 S.E.2d 227. The finding that under previous projects plaintiff had taken only the 24-foot strip which it had paved rendered a plea of the applicable statute of limitations (G.S. § 136-19 as it read prior to 1 July 1960) immaterial, since defendants sought no compensation for the original 24-foot right-of-way. G.S. § 136-19 was a statute of limitations "rather than a condition precedent." Lewis v. North Carolina State Highway & Public Works Comm., 228 N.C. 618, 620, 46 S.E.2d 705, 707. In all events, however, the judge's refusal to permit plaintiff to plead the statute a year and a half after the pleadings were filed was a matter entirely within his discretion and not reviewable. 3 Strong, N.C. Index, Pleadings § 24 (1960).

With reference to tracts 1 and 2, plaintiff's theory of this action seems to have been this: In 1948-1949, under Projects 54 & 55, it had acquired a 250-foot right-of-way over defendants' rectangular tract even though it had paid them nothing. Because of the lapse of time, defendants could recover nothing from plaintiff for it in this action. Their only right to compensation was for the two small triangles A and B, worth (according to plaintiff's evidence at the trial) not over $788.00. Yet at the time of the institution of this action, plaintiff deposited in court as its estimate of just compensation $31,709.00!

The dismissal of plaintiff's appeal also makes it unnecessary to decide (1) whether G.S. § 47-27 applied to the State Highway Commission prior to its 1 July 1959 amendment, or (2)—if it did—what the effect of Exhibit 9 would have been had it been recorded. G.S. § 47-27 makes deeds and conveyances of easements and rights-of-way invalid as to creditors and purchasers for value prior to recordation. The amendment involved makes this section expressly applicable to the Highway Commission. The first question was debated in the briefs. Plaintiff contends that before 1 July 1959 it was not required to register any deed or agreement for a right-of-way or easement. Defendants contend that by the amendment, the legislature merely made explicit that which was already implicit in the statute and was attempting to force the Highway Commission to comply with the registration laws. They also point out that land titles would have been in an uncertain state, and the public policy with reference to registration frustrated, if the State and all its agencies were not required to record the conveyances under which they claim title to an interest in land. Plaintiff cites Browning v. North Carolina State Highway Commission, supra; Kaperonis v. Highway Commission, supra; Yancey v. North Carolina State Highway Commission, 222 N.C. 106, 22 S.E.2d 256. Defendants cite, inter alia, Williams v. North Carolina Board of Education, 266 N.C. 761, 147 S.E.2d 381; Best v. Utley, 189 N.C. 356, 127 S.E. 337; Collins v. Davis, 132 N.C. 106, 43 S.E. 579. Suffice it to say, no decision determinative of the question has been called to our attention. See also Bailey v. State Highway & Public Works Com., 230 N.C. 116, 52 S.E.2d 276.

DEFENDANTS' APPEAL

Notwithstanding Judge McLaughlin's adjudication in May 1965 that defendants owned tract 3 free and clear of any right-of-way except the 24-foot paved southbound lane of No. 29, at the trial in March 1966, Judge McConnell, over defendants' objections: (1) permitted plaintiff's witness Fox to testify that plaintiff claimed a 250-foot right-of-way over the property (defendants' assignment of error 17); (2) permitted J. Duggins, defendants' grantor, to testify that he had signed plaintiff's Exhibit 9 in order to give plaintiff a right-of-way over tract 3 and to get his house moved therefrom to another lot, which plaintiff was to purchase for him; and that he had thereafter sold defendants "what was left" of tract 3 (only tract B, according to plaintiff's contentions) (assignment of error 14); (3) required five of defendants' witnesses on cross-examination to reply to a hypothetical question, the answer to which was that if plaintiff did have a 250-foot right-of-way across tract 3, which left only tract B unencumbered, the value of tract 3 would not be $10,000.00—the value which all the witnesses had placed upon tract 3 unencumbered (defendants' assignments of error 2, 4, 5, 7, 8, 9, 12); (4) permitted Mr. Jones to testify that, with the 250-foot right-of-way, tract B was worth $394.00 (assignment of error 18). The effect of Mr. Jones' evidence is clearly reflected in the verdict. The jury awarded defendants $394.00 as just compensation for tract 3.

After admitting the evidence above referred to, Judge McConnell charged the jury:

"The State Highway contends they already had a right-of-way over Tract No. 3, having been assigned by Mr. Duggins. * * * The defendants contend that they took all of Tract No. 3, and the State contends that it took only a small portion, containing approximately .01 of an acre or 675 square feet, which was a small triangular portion, as the State contends they took. * * * I instruct you that where only a part of a tract of land was taken, as in Tract 1, Tract 2, and Tract 3, after you consider that, taking into consideration the difference in the contentions of the parties, I instruct you that where only a portion of a tract of land is taken, the measure of damages for said taking shall be the difference between the fair market value of the entire tract immediately prior to the taking—and in this case, the land was appropriated April 18, 1961. * * * The question of the effect of the right-of-way is a question for you to determine. You have heard the evidence and the contentions of the parties, and it is a matter for you to determine where the truth lies."

In addition to the portion of the charge quoted above, in stating the contentions of the parties, the court elaborated further upon plaintiff's contention that it owned a 250-foot right-of-way across tract 3 at the time defendants acquired it. (Assignments of error 20 and 21 relate to the charge with reference to tract 3.)

In his rulings upon the admissibility of evidence and in his charge, Judge McConnell utterly disregarded Judge McLaughlin's adjudication that plaintiff had only a 24-foot right-of-way across tract 3 at the time defendants acquired it. Right or wrong, Judge McLaughlin's order was the law of the case, and Judge McConnell could neither ignore it nor change it. In no event, however, should it have been left to the jury to say whether plaintiff had a right-of-way over tract 3. The construction and effect of plaintiff's Exhibit 9, upon which plaintiff relied for its 250-foot right-of-way, was a legal question to be determined by the judge before submitting any issue of damages to the jury—and Judge McLaughlin had made that determination.

It is obvious that all controversy with reference to tract 3 could have been avoided had the Highway Commission done two things on 1 April 1946 when it completed its negotiations with the Duggins: (1) procured their signatures to a right-of-way agreement which conformed to rudimentary rules of conveyances and (2) then recorded it. Borders v. Yarbrough, 237 N.C. 540, 75 S.E.2d 541. Exhibit 9, although labeled "Right of Way Agreement", merely releases plaintiff from all claims of damage by reason of a right-of-way for Project 53-54 across the lands of Duggins, the right-of-way being 125 feet on each side of the center line, "Station 116+10 and Station 118+05." The words of Denny, C. J., in Browning v. North Carolina State Highway Commission, supra, 263 N.C. at 134, 139 S.E.2d at 229, are once again appropriate:

"The rather careless and haphazard manner in procuring rights of way, together with the lack of clarity and accurateness in the preparation of right of way agreements by the Commission through the years, has been a source of much litigation."

Defendants' objection to the question put to Mrs. Nuckles and to Mr. Duggins with reference to the purchase price which Mr. Nuckles paid Duggins for tract 3 was properly overruled. Nuckles purchased this tract on 2 January 1957; plaintiff condemned it on 18 April 1961, approximately four years later. "It is accepted law that, when land is taken in the exercise of eminent domain, it is competent, as evidence of market value, to show the price at which it was bought, if the sale was voluntary, and not too remote in point of time." Palmer v. North Carolina State Highway Commission, 195 N.C. 1, 2, 141 S.E. 338, 339. "The reasonableness of the time is dependent upon the nature of the property, its location, and the surrounding circumstances, the criterion being whether the evidence fairly points to the value of the property at the time in question." North Carolina State Highway Commission v. Coggins, 262 N.C. 25, 29, 136 S.E.2d 265, 267-268. In Northgate Shopping Center v. Highway Commission, 265 N.C. 209, 212, 143 S.E.2d 244, 246, Moore, J., said:

"Some of the circumstances to be considered are the changes, if any, which have occurred between the time of purchase by condemnee and the time of taking by condemnor, including physical changes in the property taken, changes in its availability for valuable uses, and changes in the vicinity of the property which might have affected its value. The fact that some changes have taken place does not per se render the evidence incompetent. But if the changes have been so extensive that the purchase price does not reasonably point to, or furnish a fair criterion for determining, value at the time of the taking, when purchase price is considered with other evidence affecting value, the evidence of purchase price should be excluded."

In this case, there is no suggestion that there has been any physical change in tract 3 or any substantial changes in the vicinity of the property which might have affected its value—except those resulting from the completion of Project No. 2. Therefore, the voluntary sale between Duggins and Nuckles was not too remote in point of time to be admissible. Defendants' reluctance to have the jury know that they seek to have the State pay them $10,000.00 for a tract of land which they purchased for $50.00 four years earlier is understandable. Notwithstanding, nothing appears which would render this evidence incompetent.

With reference to tracts 1, 2, and 4, defendants complain that the court failed to charge the jury correctly upon their right to compensation for the taking of, or injury to, the uncontrolled access which these tracts had to No. 29 prior to Project No. 2. When the charge is considered as a whole, the court instructed the jury substantially as follows:

The owner of property abutting a highway has a right in the street beyond that which is enjoyed by the general public since egress and ingress to his property is a necessity peculiar to himself. His right of access is an easement appurtenant which cannot be taken from him without just compensation, but he has no right to insist that the entire volume of traffic which would naturally flow over a highway in which he owns the fee pass by undiverted. Therefore, defendants are not entitled to recover damages for the diversion and diminution of traffic by their property which resulted when the lane which had formerly carried two-way traffic was converted into a lane for southbound traffic only, provided direct access to the southbound lane is afforded them. If the Highway Commission takes away a landowner's direct access, as it has a right to do, he is entitled to recover the diminution in market value which results to his land from the taking. There has been no taking, however, if the Highway Commission affords him reasonable access to the highway. Mere inconvenience because the owner is compelled to use a longer and more circuitous route in reaching the highway is not compensable provided it gives him reasonable access. It is for the jury to determine whether or not plaintiff has provided defendants reasonable access to their remaining property, i. e., tracts 1, 2, and 4. If plaintiff has not, defendants are entitled to reasonable compensation for that taking.

With reference to tract 1, the court instructed the jury that it could answer the issue in any amount it found to be fair and just compensation not to exceed $32,915.00; as to tract 2, any amount not to exceed $78,310.00; as to tract 4, any amounts from zero to $24,415.00. He summarized plaintiff's contentions in substance as follows:

(1) Tract 4, because of its location in the southwest corner of the intersection of McKnight Mill Road and No. 29, and as a result of the service road which parallels its property line and the southbound lane of No. 29, has direct access to that lane in a manner which enables a motorist to drive directly into the service station and out again to continue his journey south. (2) Tract 1, by way of Spring Street and the two-way public service road, which parallels its eastern line and the southbound lane of No. 29, has direct access to both No. 29 and McKnight Mill Road on the south and to the northbound lane of No. 29 by way of a crossover to the north. Used as a trailer park prior to the taking, it is still so used. (3) Tract 2 likewise has both direct and reasonable access to the northbound lane of No. 29, which it adjoined, by virtue of its location in the northeast corner of the intersection of McKnight Mill Road and No. 29. Defendants still operated Nuckles Barbecue on this tract, and their customers, traveling north on No. 29, had direct and immediate ingress and egress. It was only the loss of area which had caused defendants to terminate the trailer sales agency which they had formerly operated on tract 2.

The court summarized defendants' contentions as follows:

In addition to the acreage taken from both tracts 1 and 2, defendants had had to exchange unlimited and unrestricted access along the entire boundaries of their tracts 1, 2, and 4, which abutted No. 29, for restricted access at limited points designated by plaintiff. These points do not constitute "reasonable access."

Plaintiff took no property right from defendants when it separated the lanes for northbound and southbound traffic so that each of defendants' tracts had access to one lane only. Moses v. State Highway Commission, 261 N.C. 316, 134 S.E.2d 664; Barnes v. North Carolina State Highway Commission, 257 N.C. 507, 126 S.E.2d 732. Defendants likewise had no vested interest in having McKnight Mill Road continue uninterruptedly across both lanes of No. 29. Plaintiff, therefore, took nothing from them when it gave McKnight Mill Road East access only to the northbound lanes of No. 29 and McKnight Mill Road West access only to the southbound lanes. Wofford v. North Carolina State Highway Commission, 263 N.C. 677, 140 S.E.2d 376; Snow v. North Carolina State Highway Commission, 262 N.C. 169, 136 S.E.2d 678.

With reference to access, G.S. § 136-89.53 provides in pertinent part:

"The Commission may designate and establish controlled-access highways as new and additional facilities or may designate and establish an existing street or highway as included within a controlled-access facility. When an existing street or highway shall be designated as and included within a controlled-access facility the owners of land abutting such existing street or highway shall be entitled to compensation for the taking of or injury to their easements of access."

This statute was applied in State Highway Commission v. Raleigh Farmers Market, supra. In that case, the construction of the Belt Line around Raleigh deprived Farmers Market of access to Race Track Road which had formerly been a portion of its northern boundary and had given it access to U. S. Highway 1-A. The Highway Commission provided no service road. After the construction of the Belt Line, to obtain access to 1-A from the northern portion of its property (in effect, a separate tract from the southern portion), Farmers itself would have to construct a road 3,000 feet or more in length over a difficult terrain. The Court, citing G.S. § 136-89.53, held that Farmers' access to 1-A had been substantially diminished and that it was entitled to compensation for the loss of its access to Race Track Road. Rodman, J., stated the rule as follows (citations omitted):

"Repeated decisions by this Court have established the right of a property owner to reasonable access to a public highway which abuts his land. That is a property right which cannot be taken without compensating the owner. * * *

* * * * * *

"While the abutting owner has a right of access, the manner in which that right may be exercised is not unlimited. * * * To protect others who may be using the highway, the sovereign may restrict the right of entrance to reasonable and proper points. * * *

"If the abutting owner is afforded reasonable access, he is not entitled to compensation merely because of circuity of travel to reach a particular destination. * * *"

In Moses v. State Highway Commission, supra, plaintiffs who operated a motel, sought damages because they were denied immediate access from their property to Interstate Highway I-95, a controlled access road. Although plaintiffs had access by a service road which abutted their property and connected with points fixed for entrance and departure from the Interstate Highway, a motorist traveling south on the inner lane of I-95 traveled 1.65 miles farther to reach plaintiffs' motel than he would if allowed direct access to the property; one traveling north traveled.65 miles farther. In holding that plaintiffs were not entitled to compensation, this Court said:

"If the denial of immediate access to the inner traffic lane is a taking of property compensation must be paid. * * * (B)ut if the substitution of a service road for the direct access theretofore enjoyed is an exercise of the police power, any diminution in the value of petitioners' property is damnum absque injuria. * * *

* * * * * *

"Petitioners do not claim a denial of access; they merely assert access to a portion of the highway is less convenient now than in 1957 when they acquired a right-of-way across land subsequently acquired by respondent. * * *

* * * * * *

"(A)n abutting property owner is not entitled to compensation because of the construction of a highway with different lanes for different kinds and directions of traffic, if he be afforded direct access by local traffic lanes to points designated for access to through traffic. * * *

"* * * That access is provided by the service roads. These service roads are part of the highway system. They serve not only the petitioners but any member of the public who desires to use the same."

In the Farmers Market case, where the landowner was held entitled to compensation for its loss of access, no service road was provided to give him access to the Belt Line which abutted his property. In the Moses case, in which a motel owner was denied compensation, access was provided by service roads. In the latter case, as in this case, the landowners were "afforded direct access by local traffic lanes to points designated for access to through traffic."

In this case, the judge left it to the jury to say whether defendants had been afforded reasonable access to No. 29 and instructed them to award such damages as would make defendants whole if they had been deprived of it. They have no cause to complain of the charge with reference to access for it contains no error prejudicial to them. The judge should have charged the jury that, under the law, defendants' access to No. 29 had not been taken. In their brief, defendants request a new trial as to all four tracts, but we note that when they moved the court to set aside the verdict, they moved to set it aside only as to tracts 3 and 4.

Defendants' other assignments of error have all been considered—including the assignment relating to the charge on general benefits as affecting the measure of damages for tracts 1 and 2. Conceding that there was no evidence upon which to base a charge on general benefits and that, at best, it was an inadequate statement of the law relative to general benefits as an offset to damages, it is inconceivable to us that this portion of the charge adversely affected the verdict. A new trial will be granted only for errors which were prejudicial and harmful to appellant. 1 Strong, N.C. Index, Appeal and Error § 40 (1957).

The decision is this:

Plaintiff's appeal is

Dismissed.

Defendants' appeal—as to tracts 1, 2, and 4, issues 1 (A), (B), and (D)

No error.

Defendants' appeal as to tract 3, issue 1 (C)

New trial.