Tyson v. N.C. Dep't of Transp.

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1357
Filed: 4 August 2015
Beaufort County, No. 12 CVS 985
FAITH TYSON and DAVID TYSON, Plaintiffs,
v.
NORTH CAROLINA DEPARTMENT OF TRANSPORTATION and CENTURYLINK
SALES SOLUTIONS, INC., Defendants.
Appeal by plaintiffs from order entered 20 May 2014 by Judge Kenneth C.
Titus in Beaufort County Superior Court. Heard in the Court of Appeals 19 May 2015.
Cauley Pridgen, PA, by Geneva L. Yourse and James P. Cauley, for Plaintiffs.
Attorney General Roy Cooper, by Special Deputy Attorney General Dahr Joseph
Tanoury, for Defendant North Carolina Department of Transportation.
Brown & Bunch, PLLC, by LeAnn Nease Brown, for Defendant CenturyLink
Sales Solutions, Inc.
STEPHENS, Judge.
Factual Background
Plaintiff Faith Tyson owns a fee simple interest, and her husband David Tyson
has a marital interest, in two tracts of land (“the Property”) located along U.S.
Highway 17 North in Beaufort County. The Property lies on the west side of Highway
17 and consists of one 1.30-acre tract of land and one 3.29-acre tract that also includes
TYSON V. N.C. DEP’T OF TRANSP.
Opinion of the Court
a house which faces the highway. Mrs. Tyson received her interest in the Property in
1998 from her mother, Agnes Hodges Williamson, who had received her own interest
in 1980 from Mrs. Tyson’s grandmother, Currie K. Hodges.
On 2 September 1953, Mrs. Hodges executed a Right-of-Way Agreement (“the
1953 Agreement”) with the State Highway and Public Works Commission (“the
Commission”), which was the predecessor in interest to Defendant North Carolina
Department of Transportation (“NCDOT”). See, e.g., Dep’t of Transp. v. Bollinger, 121
N.C. App. 606, 608, 468 S.E.2d 796, 797 (1996). The Agreement, which conveyed to
the Commission a right-of-way along the eastern edge of the Property’s 3.29-acre tract
in order to accommodate improvements to Highway 17, states that it grants a
right-of-way for said highway project as hereinafter
described and releases the Commission from all claims for
damages by reason of said right-of-way across the lands of
the undersigned and of the past and future use thereof by
the Commission, its successors and assigns, for all
purposes for which the Commission is authorized by law to
subject such right-of-way . . . [.]
By the terms of the Agreement, which was recorded in the Beaufort County Registry
on 5 January 1954, the right-of-way extends west 102 feet from the centerline of
Highway 17 to form the eastern boundary of the Property, approximately ten feet
away from the house’s front porch. On 17 September 1955, Mrs. Hodges applied for
and received permission from the Beaufort County Department of Health to install a
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sewage disposal system for the house with a septic tank and drain lines extending
from the right side of the house, outside the right-of-way.
On 26 August 2009, the Tysons executed a Deed for Highway Right of Way
(“2009 Deed”) conveying to NCDOT the right to impose partial control of access along
the edge of both tracts of the Property adjacent to Highway 17 in order to install
fencing. The control of access line runs congruent along the Property’s eastern
boundary with the right-of-way established by the 1953 Agreement. As consideration,
NCDOT paid the Tysons $8,000.00 and provided two 60-foot access breaks to the
highway to accommodate a driveway and path to the Property. In return, the Tysons
affirmed that the project plans had been fully explained to them and released NCDOT
“from any and all claims for damages resulting from the construction of said project
or from the past, present or future use of said premises herein conveyed for any
purpose for which [NCDOT] is authorized by law to subject the same.”
NCDOT subsequently contracted with Defendant CenturyLink Sales
Solutions, Inc., a private utility corporation, which in turn hired Lambert’s Cable
Splicing Company, LLC, as a subcontractor in conjunction with a broader
construction project to improve the grading, drainage, and paving of Highway 17. The
project’s plans called for underground fiber optic telecommunications lines in the
right-of-way along the highway adjacent to the Property to be relocated within the
right-of-way and installed at least one foot inside the edge bordering the Property,
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which the Lambert’s crew used stakes to demarcate. After conducting a “locate
request” which determined that no other underground utilities were located inside
the right-of-way, the Lambert’s crew followed the work plans supplied by NCDOT.
However, on 7 February 2011 while utilizing a trencher to dig a trench inside the
right-of-way, the Lambert’s crew inadvertently severed a terracotta septic system
drain line that appeared to lead to the Tysons’s house on the Property. The Lambert’s
crew notified the Tysons of the incident shortly thereafter.
Procedural History
On 19 October 2012, the Tysons filed a complaint for inverse condemnation
pursuant to section 136-111 of our General Statutes against NCDOT and
CenturyLink in Beaufort County Superior Court. In their complaint, the Tysons
alleged that NCDOT and CenturyLink had exceeded the right-of-way granted by the
original 1953 Agreement by “cutting through septic lines on [the Property], parking
heavy trucks and equipment on [the Property], destroying existing vegetation, and
destroying portions of existing improvements” on the Property. The Tysons argued
these actions “substantially and measurably impaired the value of” the Property and
therefore amounted to a taking without just compensation.
On 27 December 2012, NCDOT filed its answer, denying that it had exceeded
the right-of-way or that any taking had occurred, and asserting further that the
Tysons’s claim was barred because the 2009 Deed had released NCDOT from any
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liability for damages related to highway construction. On 7 January 2013, pursuant
to North Carolina Rules of Civil Procedure 12(b)(4) and 12(b)(6), CenturyLink filed a
motion to dismiss the Tysons’s complaint. The trial court denied that motion by
written order on 18 December 2013, and CenturyLink filed its answer on 23
December 2013.
In January 2014, both the Tysons and NCDOT filed motions pursuant to
section 136-108 of our General Statutes for a hearing to determine whether a taking
had occurred. On 25 and 26 February 2014, NCDOT and CenturyLink respectively
filed separate Rule 56 motions for summary judgment against the Tysons. Included
in support of these motions were maps and surveys of the right-of-way in relation to
the Property, as well as affidavits from: (a) a professional land surveyor who
performed a survey demonstrating that the relocated fiber optic lines were buried
inside NCDOT’s existing right-of-way and control-of-access lines at an average
distance of 2.35 feet from their border with the Property; and (b) members of the
Lambert’s crew who explained that all workers and equipment had remained within
the right-of-way at all times, that there was no evidence of a private septic drain line
in the area before the work began, that a “locate request” focuses only on underground
utilities and would not have uncovered such a line, and that based on their experience
in the field, they would not have expected to find such a line in a public right-of-way.
In addition, CenturyLink submitted a memorandum in support of its motion
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highlighting Mrs. Tyson’s deposition testimony that she had not known the septic
line was located in the right-of-way but believed it was first installed in 1955, that
she did not know precisely where the boundary between the Property and NCDOT’s
right-of-way was located, that she only observed the Lambert’s crew and its
equipment operating between the control-of-access fence and the highway in an area
she recognized as part of NCDOT’s right-of-way, and that apart from cutting the
septic line she was unaware of any other action by either NCDOT or CenturyLink
that could have damaged the Property.
On 5 May 2014, after the Tysons filed a cross-motion for summary judgment,
a hearing was held on the motions in Beaufort County Superior Court. During that
hearing, the Tysons argued that neither the original 1953 Agreement nor the 2009
Deed had relinquished their fee simple interest in the Property or restricted their
right “to place a septic line or a drain field underground or to use the area underneath
the right-of-way in any way that they chose as long as it didn’t interfere” with the
specific uses and construction projects recited in those instruments. Instead, the
Tysons contended that, by relocating the underground fiber optic lines, NCDOT had
exceeded the scope of its rights under both the Agreement and the Deed because:
It’s not the same project they were doing before. It’s not the
same use they were doing. It’s not the same purpose that
they had here. It’s an overburdening of the easement. They
had a right over and across the lands. When they went and
they started digging down to put in fiber-optic cables,
which they weren’t doing when they originally got this
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easement, they exceeded the easement that was there; they
went beyond the burden.
At the close of the hearing, the trial court expressed its sympathy for the Tysons,
noting that “[s]ometimes the law is just not fair,” but denied their motion for
summary judgment and instead granted the motions for summary judgment filed by
NCDOT and CenturyLink. In a written order entered 20 May 2014, the court
explained that
there is no genuine issue of material fact and as a matter
of law, the [1953] Right-of-Way Agreement . . . grants unto
[the Commission], its successor and assigns, all right of
past and future use for all purposes for which the
Commission is authorized by law to subject such right-of-
way, including the location and relocation of utilities, a use
to which [NCDOT], successor-in-interest to [the
Commission], is authorized by law to subject [such] right-
of-way[.]
The court also dismissed the Tysons’s complaint with prejudice. The Tysons gave
notice of appeal to this Court on 13 June 2014.
Analysis
The Tysons’s sole argument on appeal is that the trial court erred by granting
NCDOT’s and CenturyLink’s motions for summary judgment. We disagree.
We review de novo a trial court’s decision to grant or deny a motion for
summary judgment, focusing on
whether there is any genuine issue of material fact and
whether the moving party is entitled to a judgment as a
matter of law. Summary judgment is proper if the
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pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and
that any party is entitled to a judgment as a matter of law.
Hyatt v. Mini Storage on Green, __ N.C. App. __, __, 763 S.E.2d 166, 169 (2014)
(citations and internal quotation marks omitted).
In the present case, the Tysons argue first that the trial court erred in granting
summary judgment for NCDOT and CenturyLink because by digging a trench to
relocate the underground fiber optic lines, they exceeded the scope and specific
purposes allowed by the 1953 Agreement and the 2009 Deed. Specifically, the Tysons
emphasize the use of the phrase “across the lands of the undersigned” in the 1953
Agreement, which they contend limits NCDOT’s right-of-way to the surface of the
Property. According to the Tysons, this means that their predecessors-in-interest
retained exclusive rights to the soil beneath the right-of-way and were therefore free
to bury the septic line there. The Tysons thus insist that digging to relocate fiber optic
lines violated the terms of the right-of-way grant, and that neither the 1953
Agreement nor the 2009 Deed released NCDOT from liability for damages caused by
any actions other than the construction projects explicitly referenced in those
instruments, which means that the Lambert’s crew overburdened the right-of-way,
causing damages for which the Tysons insist they are entitled to compensation. In
support of this argument, the Tysons rely on our Supreme Court’s decisions in
Hildebrand v. S. Bell Tel. & Tel. Co., 219 N.C. 402, 14 S.E.2d 252 (1941) (“Hildebrand
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I”) and Hildebrand v. S. Bell Tel. & Tel. Co., 221 N.C. 10, 18 S.E.2d 827 (1942)
(“Hildebrand II”).
In Hildebrand I, the plaintiff landowner sued to restrain the defendant
telephone company and to recover damages for trespass after the telephone company
“dug holes and erected poles and wires upon the land of [the] plaintiff . . . .” 219 N.C.
at 404, 14 S.E.2d at 254. The Commission had previously obtained a right-of-way
across a portion of the plaintiff’s property that bordered a public highway, and the
defendant telephone company argued that because its use of the right-of-way to erect
poles and wires had been authorized by the Commission, its construction project
“imposed no new or additional burden” on the plaintiff’s land. Id. at 405, 14 S.E.2d at
254. In reviewing the plaintiff’s argument to the contrary, our Supreme Court
observed that under North Carolina law, the Commission
has authority to control the uses to which the land
embraced within [a right-of-way it obtained along a public
highway] may be put. If it deems it wise or expedient so to
do in the interest of the traveling public, it may altogether
exclude the imposition of any additional easement or
burden. It may not be held that the Legislature intended
thereby to declare that the construction and maintenance
of a telephone line is a legitimate highway purpose and
embraced within the easement acquired for highway use.
Id. at 409, 14 S.E.2d at 257. As the Court recognized, although North Carolina law
authorized the Commission to utilize its right-of-way over the plaintiff’s property to
do whatever it deemed necessary to facilitate public travel, granting permission to
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the defendant telephone company to set up poles in the right-of-way “is outside the
scope of the public easement and compensation must be made therefor.” Id. (citations
omitted). However, the Court ultimately remanded the case for a new trial because
the court below had improperly excluded the findings and holdings contained in the
judgment roll of the condemnation proceeding by which the Commission obtained the
right-of-way. Id. at 411, 14 S.E.2d at 258.
In Hildebrand II, after the retrial ended in a judgment for the plaintiff, our
Supreme Court observed first that the
Commission has been granted exclusive control over the
State Highway system. 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. 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.
221 N.C. at 13, 18 S.E.2d at 829 (citations omitted). After reviewing the language of
the grant of right-of-way in the judgment roll, the Court held that the plaintiff had
already been paid for use of the right-of-way for other utilities, such as the defendant
telephone company, because the grant to the Commission and its successors-in-
interest was not restricted merely to “highway purposes” but extended to “all
purposes for which [the Commission] is authorized by law to subject said right of
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way,” which meant that the defendant telephone company “by virtue of its privity,
may assert the authority of [the Commission] thereunder to permit it to encroach
upon the highway without any payment of any additional sum to [the] plaintiff.” Id.
Thus, given the breadth of the right-of-way grant, the Court concluded the plaintiff
was not entitled to further compensation and thus the defendant telephone company’s
motion to dismiss the action should have been granted below. See id. at 14, 18 S.E.2d
at 830.
It has been clear since 1942 that if the granting instrument so provides,
NCDOT and its assignees can utilize public highway rights-of-way for any purpose
authorized by law. Therefore, while we agree with the Tysons that Hildebrand I and
II control the result of this case, we also conclude that the result these authorities
compel is the opposite of the result the Tysons seek. Although they claim that the
scope of NCDOT’s right-of-way is restricted by the use of the phrase “across the lands”
in the 1953 Agreement, and by the projects specifically referenced in both that
Agreement and the 2009 Deed, their argument is fatally undermined by the actual
language of the 1953 Agreement, which clearly releases NCDOT from liability for any
past or future damages resulting from “all purposes for which [NCDOT] is authorized
by law to subject such right of way . . .” (emphasis added). Thus here, as in
Hildebrand, the right-of-way grant provides broad authorization for NCDOT’s use in
accordance with North Carolina law. Moreover, section 136-18 of our General
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Statutes vests NCDOT with the power to “make proper and reasonable rules,
regulations and ordinances for the placing or erection of telephone, telegraph, electric
and other lines, above or below ground,” and for removal of or changes in their
locations. N.C. Gen. Stat. § 136-18(10) (2013). Consequently, we have no trouble in
concluding that relocating the fiber optic lines within the right-of-way was a purpose
“authorized by law” for which NCDOT could lawfully utilize its right-of-way. Thus,
as in Hildebrand II, the breadth of the 1953 Agreement’s terms compels our
conclusion that the actions of NCDOT, CenturyLink, and their subcontractors neither
overburdened nor exceeded the scope of the right-of-way.
Alternatively, the Tysons argue that the trial court erred in granting summary
judgment for NCDOT and CenturyLink because their actions in the right-of-way
caused such significant damage to the Tysons’s abutting estate as to amount to an
additional taking for which the Tysons are entitled to just compensation. In support
of their position, the Tysons rely on this Court’s prior decision in Robinson v. N.C.
Dep’t of Transp., 89 N.C. App. 572, 366 S.E.2d 492 (1988). In Robinson, we reversed
the trial court’s dismissal of an action for inverse condemnation against NCDOT and
its subcontractor after the plaintiff landowners’ property was damaged by vibrations
from a pile-driver the subcontractors used on an adjacent bridge construction project
along a public highway. 89 N.C. at 573, 366 S.E.2d at 493. In holding that the
plaintiffs could state a claim for inverse condemnation, we observed that “[a]lthough
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[the] plaintiffs’ property damage caused by the bridge construction does not fit
squarely within the . . . definition of a taking, North Carolina courts have consistently
held that such damage does, in fact, constitute a taking” because “[d]amage to land
which inevitably or necessarily flows from a public construction project results in an
appropriation of land for public use.” Id. at 574, 366 S.E.2d at 493 (citations and
internal quotation marks omitted).
Here, although the Tysons insist their situation is analogous, their argument
ignores a critical distinction between Robinson and the instant facts. Namely, in
Robinson, the damages to the plaintiffs’ property resulted entirely from the
construction project on the neighboring highway, whereas in the present case, the
damages the Tysons suffered resulted directly from their own septic line’s
unauthorized encroachment into NCDOT’s right-of-way. While the record indicates
that Mrs. Hodges obtained permission to place a septic system on the Property in
1955, the plans she submitted clearly called for the drain lines to extend out from the
side of the house, rather than in front of it into NCDOT’s right-of-way, which as noted
supra included not only the surface of the land but also the soil beneath it. Put simply,
the septic line should never have been in a position for the Lambert’s crew to sever
on 7 February 2011.
Moreover, as our State’s courts have long recognized, “[w]here a landowner has
granted a right of way over his land, he must look to his contract for compensation,
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as it cannot be awarded to him in condemnation proceedings, provided the contract
is valid, and all its conditions have been complied with by the grantee.” Sale v. State
Highway & Pub. Works Comm’n, 238 N.C. 599, 604, 78 S.E.2d 724, 728 (1953)
(citations omitted); see also Ingram v. City of Hickory, 191 N.C. 48, 53, 131 S.E. 270,
273 (1926) (observing that a right-of-way deed bars “all claim for damages incidental
to or necessary, incurred in the exercise of the power conferred by the deed.”). Here,
by and through the 1953 Agreement and the 2009 Deed, NCDOT and its predecessor-
in-interest have already compensated the Tysons and their predecessors-in-interest
for the right-of-way, which NCDOT is authorized to use for any lawful purpose,
including relocating underground fiber optic lines, which means the Tysons are not
entitled to additional compensation for damages arising from their septic line’s
unauthorized encroachment into the right-of-way.
We therefore hold that the trial court did not err in granting summary
judgment to NCDOT and CenturyLink. Accordingly, the trial court’s order is
AFFIRMED.
Judges BRYANT and DIETZ concur.
Report per Rule 30(e).
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