Topping v. North Carolina State Board of Education

106 S.E.2d 502 (1959) 249 N.C. 291

Earl TOPPING
v.
NORTH CAROLINA STATE BOARD OF EDUCATION and William D. Herring, J. A. Pritchett, Guy B. Phillips, Charles G. Rose, Jr., R. Barton Hayes, Gerald Cowan, Charles E. Jordan, H. L. Trigg, Edwin Gill, Individual Members Thereof, Who Are Sued in Such Capacity, and Charles F. Carroll, Superintendent of Public Instruction of North Carolina, Original Defendants,
and
Hyde County Board of Education and Gratz Spencer, Walter Lee Gibbs, and Crawford Cahoon, Individual Members Thereof, Additional Defendants.

No. 31.

Supreme Court of North Carolina.

January 14, 1959.

Grimes & Grimes, LeRoy Scott and Wilkinson & Ward, Washington, N. C., for plaintiff-appellant.

Malcolm B. Seawell and Claude L. Love, Asst. Attys. Gen., for original defendants-appellees.

O. L. Williams, Swanquarter, and White & Aycock, Kinston, for additional defendants-appellees.

BOBBITT, Justice.

Judge Moore's order of April 23, 1958, entered after notice and hearing, restrained the original defendants "until the final hearing of the cause or until title to the full site of 15.15 acres shall have been acquired in fee simple by the Board of Education of Hyde County."

The original defendants were entitled, by perfecting an appeal from Judge Moore's said interlocutory order, to a review by this Court of his findings of fact and conclusions of law. Roberts v. Town of Cameron, 245 N.C. 373, 376, 95 S.E.2d 899, and cases cited. Judge Moore's order, if erroneous, was subject to correction only by this Court. Mills v. Richardson, 240 N. C. 187, 81 S.E.2d 409, and cases cited; Dail v. Hawkins, 211 N.C. 283, 189 S.E. 774, and cases cited. Upon their failure to appeal therefrom, Judge Moore's order determined the status of the case until final hearing. (Note: There has been no final hearing.)

This is an appeal by plaintiff from Judge Paul's order of November 21, 1958. It presents no question as to whether Judge Moore's order was erroneous in any respect.

Judge Paul was without judicial power to modify or reverse either the findings of fact or the conclusions of law theretofore made by Judge Moore. It is well settled that the findings and decisions of one superior court judge are not subject to review by another superior court judge. Hoke v. Atlantic Greyhound Corp., 227 N.C. 374, 42 S.E.2d 407; In re Adams, 218 N.C. 379, 11 S.E.2d 163; East Coast Fertilizer Co. v. Hardee, 211 N.C. 56, 188 S.E. 623. Certain well-defined exceptions to this basic rule have no application here.

Advertent to this well-established rule, Judge Paul based his decision on the ground that, subsequent to April 23, 1958, the Board of Education of Hyde County had completely or substantially complied with the conditions prescribed by Judge Moore as prerequisite to the dissolution of his order prior to final hearing.

The findings of fact and conclusions of law set forth therein disclose clearly, in our opinion, that Judge Moore's order of April 23, 1958, was based upon his ruling that the original defendants had no legal right to pay over the $164,484.44 to the Board of Education of Hyde County unless and until it acquired the fee-simple title to the full site of 15.15 acres. Acquisition of the fee-simple title to the full site of 15.15 acres was the condition prescribed by Judge Moore for the dissolution of his restraining order prior to final hearing. Nothing therein suffices to show that Judge Moore contemplated or intended that his restraining order was to be dissolved (prior to final hearing) upon a showing that the Board of Education of Hyde County had acquired a mere right to possession of the 12.11 acres pending final determination of the condemnation proceedings.

Hence, we are concerned with the title status as of November 21, 1958. Whether the Board of Education of Hyde County could or would thereafter acquire fee-simple title to the 12.11 acres by condemnation or otherwise is beside the point.

Decision herein must be based on the legal significance of what occurred after April 23, 1958, and prior to November 21, 1958, in the condemnation proceeding; and, in this connection, our first inquiry is to determine the applicable statutory provisions.

All of the provisions of Ch. 115 of the General Statutes of North Carolina as contained in Vol. 3A and the 1953 Supplement thereto were rewritten by Ch. 1372, Sessions Laws of 1955, entitled "An Act Rewriting, Rearranging, Renumbering And Amending Chapter 115 Of The General Statutes, And Repealing Certain Obsolete Sections Thereof." Article 15, Section 1, of said 1955 Act, as amended by Ch. 1335, Session Laws of 1955, was codified as G.S. § 115-125 in the 1955 Supplement to (recompiled) Vol. 3A of the General Statutes. Principally, it brought forward the provisions theretofore codified in Vol. 3A as G.S. § 115-85 and considered in Brown v. Doby, 242 N.C. 462, 87 S.E.2d 921. G.S. § 115-125, as codified in said 1955 Supplement, was considered in Burlington City Board of Education v. Allen, 243 N.C. 520, 91 S.E.2d 180.

Ch. 683, Session Laws of 1957, is entitled, "An Act To Rewrite G.S. 115-125 Relating To The Acquisition Of School Sites." Sec. 1 thereof amends "G.S. § 115-125" by rewriting it as therein set forth, providing, inter alia, that a county board of education may acquire a school site by condemnation proceedings instituted by it under the provisions of G.S. Ch. 40, Art. 2. Sec. 2 thereof repeals all laws and clauses of laws in conflict therewith.

The 1957 Act now appears as G.S. § 115-125 in the 1957 Supplement to Vol. 3A of the General Statutes.

While not so denominated in Ch. 1372, Session Laws of 1955, Sec. 1, Art. 15, thereof, is the 125th section of said chapter. It seems clear that, in enacting the 1957 Act, the legislative intent was to rewrite Art. 15, Sec. 1, of Ch. 1372, Session Laws of 1955, and we so hold. See Board of Education v. Allen, supra.

Consequently, the condemnation proceedings must be considered as instituted under the provisions of G.S. Ch. 40, Art. 2, pursuant to authority conferred by Ch. 683, Session Laws of 1957.

It is noted that the provisions of G.S. Ch. 40 apply equally to all bodies politic, corporations and persons (enumerated in G.S. § 40-2) possessing the power of eminent domain.

The condemnation proceeding instituted by the Hyde County Board of Education against the Manns is now pending in the Superior Court of Hyde County, awaiting trial at term on exceptions directed both to the petitioner's right to condemn and to the adequacy of the damages awarded by the commissioners. G.S. § 40-19. Present comment on the validity of these exceptions is not necessary or appropriate.

The determinative question is this: Did the payment into court by the Hyde County Board of Education of the amount of damages assessed by the commissioners and its possession of the 12.11 acres as authorized by the clerk's order vest the fee-simple title to the 12.11 acres in the Hyde County Board of Education? Explicit provisions of G.S. § 40-19 impel a negative answer.

While payment into court of the amount of damages assessed by the commissioners entitled the Board of Education of Hyde County to possession of the 12.11 acres "notwithstanding the pendency of the appeal, and until final judgment rendered on said appeal," in the event of a final adverse judgment it would be required to surrender possession thereof to the landowners. G.S. § 40-19; Johnson City Southern R. Co. v. South & W. R. Co., 148 N.C. 59, 61 S.E. 683. In such event, the court would make appropriate orders with reference to the refund of its deposit. G.S. § 40-19. Temporary possession, pendente lite, subject to removal by final adverse judgment, is quite different from a final judicial determination that the condemnor is entitled as a matter of right to permanent possession. The title of the landowner is not divested unless and until the condemnor obtains a final judgment in his favor and pays to the landowner the amount of the damages fixed by such final judgment. G.S. § 40-19; Nantahala Power & Light Co. v. Whiting Manufacturing Co., 209 N.C. 560, 184 S.E. 48. True, a condemnor may not, as a matter of right, take a voluntary nonsuit, over the landowner's objection, after obtaining temporary possession by payment of the amount of damages assessed by the commissioners, Johnson City Southern R. Co. v. South & W. R. Co., supra, but this is because the landowner may, if he elects to do so, assert his claim for damages on account of the condemnor's possession pendente lite.

Having reached the conclusion that the Board of Education of Hyde County, as of November 21, 1958, had not acquired the fee-simple title to the full site of 15.15 acres, it follows that Judge Paul's order of November 21, 1958, is erroneous. Hence, Judge Paul's said order is vacated; and Judge Moore's order of April 23, 1958, continues in full force and effect.

Order vacated.