Wilcox v. North Carolina State Highway Commission

181 S.E.2d 435 (1971) 279 N.C. 185

H. Allen WILCOX
v.
NORTH CAROLINA STATE HIGHWAY COMMISSION.

No. 95.

Supreme Court of North Carolina.

June 10, 1971.

Gene H. Kendall, Charlotte, for plaintiff appellant.

Atty. Gen. Robert Morgan, Deputy Atty. Gen. R. Bruce White, Asst. Atty. Gen. Andrew McDaniel, for defendant appellee.

SHARP, Justice.

In pertinent part G.S. 136-111 provides: "Any person whose land or compensable interest therein has been taken by an intentional or unintentional act or omission of the Highway Commission and no complaint and declaration of taking has been filed by said Highway Commission may, within twenty-four (24) months of the date of said taking, file a complaint in the superior court * * * for the purpose of determining all matters raised by the pleadings and the determination of just compensation." The portion omitted from the preceding quotation relates to procedural requirements.

Commission concedes that the taking of the easements across plaintiff's two lots was an intentional act and that it filed no complaint or declaration of taking. Although Commission alleges that the portion of plaintiff's property which was used to widen Eastway Drive was included within a right-of-way it had previously acquired, it now defends solely on the ground that plaintiff's action is barred by the requirement of G.S. 136-111 that the action be brought within twenty-four months of the date of the taking.

Plaintiff, unable to gainsay that he instituted this action more than two years after the taking, for the first time, asserted in his assignments of error that G.S. 136-111 is unconstitutional as applied to the facts of this case. He contends that when the State took the easements in suit it had no intention of compensating him and, in such a case, due process requires written notice to the landowner that he will receive no compensation unless he brings suit within the specified time.

Having failed to question the constitutionality of G.S. 136-111 in the trial court, plaintiff may not on appeal attack the statute upon that ground. "It is a well established rule of this Court that it will not decide a constitutional question which was not raised or considered in the court below." Johnson v. N. C. State Highway Commission, 259 N.C. 371, 373, 130 S.E.2d 544, 546. Accord, Bland v. City of Wilmington, 278 N.C. 657, 180 S.E.2d 813. See also Ramsey v. N. C. Veterans Commission, 261 N.C. 645, 135 S.E.2d 659; Sheets v. Walsh, 217 N.C. 32, 6 S.E.2d 817. We note, however, that a landowner's right to recover compensation by court action under G.S. 136-111 in no way depends upon whether the Commission intends to compensate him. Inter alia, Commission may contend, as here, that it owns the right-of-way actually appropriated, or, as it often does, that the landowner was not damaged by the taking.

G.S. 136-111 was designed to limit the time within which an action such as this can be brought. Prior to 1965 the time limit for bringing such a suit was twelve months. In 1965 the time was increased to twenty-four months. N.C. Sess.Laws ch. 514, § 1½ (1965). The facts stipulated establish that plaintiff— notwithstanding he had actual knowledge that Commission had appropriated his property—did not bring this action for compensation within the time fixed by G. S. 136-111 for its commencement. Defendant's plea of the statute is a complete defense to the action. It was properly dismissed.

Affirmed.