NORTH CAROLINA STATE HIGHWAY COM'N v. Hettiger

155 S.E.2d 469 (1967) 271 N.C. 152

NORTH CAROLINA STATE HIGHWAY COMMISSION
v.
Hilda Cooper HETTIGER and husband, E. P. Hettiger, J. H. Whicker, Jr., Trustee, Northwestern Bank, Ray Jennings, Trustee, and J. H. C. Huitt.

No. 437.

Supreme Court of North Carolina.

July 24, 1967.

Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harrison Lewis, Trial Attys. Wm. F. Briley and Charles McKinnon Hensey, Raleigh, and Associate Counsel E. James Moore, North Wilkesboro, for plaintiff appellee.

Whicker, Whicker & Vannoy, North Wilkesboro, for defendant appellants.

BOBBITT, Justice.

In passing on the Commission's motion to strike, the facts alleged in defendants' further answer are deemed admitted. The question is whether these facts entitle defendant to recover compensation in excess of the fair market value as of March 5, 1965, of the property described in said Exhibit B. See G.S. § 136-106(a) (3). If not, the order of Judge Lupton striking the further answer should be affirmed.

G.S. § 136-104, in pertinent part, provides: "Upon the filing of the complaint and the declaration of taking and deposit in court, to the use of the person entitled thereto, of the amount of the estimated compensation stated in the declaration, title to said land or such other interest therein specified in the complaint and the declaration of taking, together with the right to immediate possession hereof shall vest in the State Highway Commission and the judge shall enter such orders in the cause as may be required to place the Highway Commission in possession, and said land shall be deemed to be condemned and taken for the use of the Highway Commission and the right to just compensation therefor shall vest in the person owning said property or any compensable interest therein at the time of the filing of the complaint and the declaration of taking and deposit of the money in court, and compensation shall be determined and awarded in said action and established by judgment therein." This portion of G.S. § 136-104 is based on Chapter 1025, Session Laws of 1959.

Prior to the enactment of said 1959 Act, title was not divested until compensation was paid; and the person who owned the property when the award was confirmed was the person to be compensated. North Carolina Highway Commission v. York Industrial Center, 263 N.C. 230, 139 S.E.2d 253. In the cited case, Rodman, J., after noting the changes made by the enactment of statutes now codified as G.S. Chapter 136, Article 9, and after quoting the above portion of G.S. § 136-104, says: "Now the right to compensation rests in the person who owned the land immediately prior to the filing of the complaint and declaration of taking."

Upon the filing of the complaint and declaration of taking and deposit in court on March 5, 1965, the title to the property described in Exhibit B, the only property then owned by defendants, vested in the Commission. Admittedly, defendants are entitled to compensation for this property.

Emphasizing the words, "compensable interest therein," in the quoted portion of G.S. § 136-104, defendants contend they have an additional compensable interest growing out of their prior ownership of the property they conveyed to Collins and Ashley. The statute affords no basis for this contention. It provides the right to just compensation for the property condemned "shall vest in the person owning said property or any compensable interest therein at the time of the filing of the complaint and the declaration of taking and deposit of the money in court." (Our italics.) The compensable interest referred to in the statute is an interest in the property condemned. The only property being condemned in this action is that described in said Exhibit B.

G.S. § 136-112 prescribes the rule for determining what constitutes just compensation, viz.: "(1) Where only a part of a tract 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 said taking and the fair market value of the remainder immediately after said taking, with consideration being given to any special or general benefits resulting from the utilization of the part taken for highway purposes. (2) Where the entire tract is taken the measure of damages for said taking shall be the fair market value of the property at the time of taking." The court's instructions in North Carolina Highway Commission v. Pearce, 261 N.C. 760, 136 S.E.2d 71, were approved as in accord with G.S. § 136-112(1).

What constitutes just compensation to defendants is determinable on the basis of conditions existing on March 5, 1965, the date title vested in the Commission and the right to compensation vested in defendants. The property described in said Exhibit B is all, not a part, of the property owned by defendants on that date. Although defendants, prior to July 13, 1964, owned a larger tract which included the property described in said Exhibit B, on the determinative date, March 5, 1965, the property taken by the Commission was a separate tract in which only defendants had title or interest. In Barnes v. North Carolina State Highway Commission, 250 N.C. 378, 109 S.E.2d 219, cited by defendants, Moore, J., in his discussion of rules "for determining the unity of lands for the purpose of awarding damages or offsetting benefits in eminent domain cases," says: "The parcels claimed as a single tract must be owned by the same party or parties." (Our italics.)

It is noteworthy that Collins and Ashley, or their successors in title, notwithstanding no portion of their property is being condemned, will actually receive, appertaining to the property conveyed to them by defendants on July 13, 1964, all special and general benefits resulting from the utilization of the property described in Exhibit B for highway purposes.

Defendants cite Powell Appeal, 385 Pa. 467, 123 A.2d 650; Covert Appeal, 409 Pa. 290, 186 A.2d 20; and Empie v. United States, 131 F.2d 481 (4th Cir. 1942). The factual situation in each of these cases is readily distinguishable. Suffice to say, they involve a transfer of the entire tract of land prior to the condemnation proceedings. In the Pennsylvania decisions the principal controversy related to the interpretation of provisions in the contract between seller and purchaser concerning which of them should receive compensation for a condemnation. The basis for determining the amount of compensation was not involved. In the Empie case, the seller did not attempt to reserve a right to a claim for compensation.

Defendants could not, by agreement made in anticipation of the condemnation of a portion of their property, change the statutory provisions relating to the time of, and basis for, the compensation to be paid when the Commission condemns the property for highway purposes. Nor are these statutory provisions affected by conditions peculiar to defendants, such as their alleged financial reverses and difficulties.

Certain of defendants' allegations are to the effect that there was inconsiderate and unwarranted delay on the part of the Commission in its negotiations with defendants and in instituting the condemnation action. These allegations, suggestive of improper conduct on the part of employees of the Commission, are irrelevant to the determination of what constitutes just compensation for property condemned for highway purposes.

For the reasons stated, the compensation to which defendants are entitled is determinable in accordance with G.S. § 136-112(2). Hence, the order of Judge Lupton must be and is affirmed.

Affirmed.