CASE NOTES

Editor's Note. - Many of the cases below were decided under similar former provisions.

Power of Eminent Domain Is Attribute of Sovereignty. - The power of eminent domain is one of the attributes of a sovereign state. Redevelopment Comm'n v. Hagins, 258 N.C. 220, 128 S.E.2d 391 (1962).

Eminent Domain Exists Independently of Constitutional Provisions. - The right to take private property for public use exists independently of constitutional provisions. In fact, such provisions are limitations on the State's power to exercise the right. Redevelopment Comm'n v. Hagins, 258 N.C. 220, 128 S.E.2d 391 (1962).

Eminent Domain Is Exclusively in Control of Legislature. - The method of taking land for a public use is within the exclusive control of the legislature, limited by organic law, and the courts cannot help the injured landowner, where the statute has been strictly followed, until the question of compensation is reached. Durham v. Rigsbee, 141 N.C. 128, 53 S.E. 531 (1906).

The right of eminent domain is possessed by the government, and may be exercised by the legislature or under its authority. It is peculiarly fit to be wielded by the legislature, as it is a power founded on necessity. Raleigh & G.R.R. v. Davis, 19 N.C. 451 (1837).

Unless Properly Delegated. - The right to exercise the power of eminent domain belongs to every independent government exercising sovereign power, as a necessary incident to its sovereignty, and this power, unless otherwise provided in the organic law, rests solely in the State unless by legislative action the power is delegated, the purposes for which it may be exercised enumerated, and the procedure for such exercise prescribed. Mount Olive v. Cowan, 235 N.C. 259, 69 S.E.2d 525 (1952).

Reason for Eminent Domain. - The right of eminent domain is granted because the public interest requires that private property shall be taken for public use under the circumstances and in the manner prescribed by law. Raleigh, C. & S.R.R. v. Mecklenburg Mfg. Co., 166 N.C. 168, 82 S.E. 5 (1914).

Public necessity alone justifies governmental taking of private property. State Hwy. Comm'n v. Batts, 265 N.C. 346, 144 S.E.2d 126 (1965).

The power of eminent domain cannot be implied or inferred from vague or doubtful language. Commissioners of Beaufort County v. Bonner, 153 N.C. 66, 68 S.E. 970 (1910).

If the statute is silent on the subject it is to be presumed that the legislature intended that the necessary property should be obtained by contract. Commissioners of Beaufort County v. Bonner, 153 N.C. 66, 68 S.E. 970 (1910).

Statutes Giving Power Must Be Strictly Construed. - Statutes which authorize the exercise of the power of eminent domain must be strictly construed. Durham & N.R.R. v. Richmond & D.R.R., 106 N.C. 16, 10 S.E. 1041 (1890); Caroline & N.W.R.R. v. Pennearden Lumber & Mfg. Co., 132 N.C. 644, 44 S.E. 358 (1903); Board of Educ. v. Forrest, 193 N.C. 519, 137 S.E. 431 (1927).

Strict Construction of Authority to Condemn Land for Schools. - The statutory authority given the county board of education to condemn land for school purposes will be strictly construed as to the extent or limit of the power given. Board of Educ. v. Forrest, 193 N.C. 519, 137 S.E. 431 (1927).

Chapter Is Applicable to Private Landowners. - Even though private landowners are not specifically mentioned in G.S. 40A-3, they are bound by the provisions of this Chapter. Smith v. City of Charlotte, 79 N.C. App. 517, 339 S.E.2d 844 (1986).

The right of eminent domain can be exercised only in the mode pointed out in the statute conferring it. Allen v. Wilmington & W.R.R., 102 N.C. 381, 9 S.E. 4 (1889).

Applicability of Rules of Civil Procedure to Private Condemnation Proceedings. - Section 40A-12, together with G.S. 1-393, gives trial courts clear authority to apply the Rules of Civil Procedure in private condemnation proceedings, at least to the extent that those rules do not directly conflict with procedures specifically mandated by this Chapter. VEPCO v. Tillett, 316 N.C. 73, 340 S.E.2d 62 (1986).

Applicability of Rule 60, Rules of Civil Procedure. - Rule 60, of the Rules of Civil Procedure, applies to proceedings under Chapter 40A in order to provide relief from judgments or orders when necessary to promote the interests of justice. City of Durham v. Woo, 129 N.C. App. 183, 497 S.E.2d 457, cert. denied, 348 N.C. 496, 518 S.E.2d 380 (1998).

Conversion of Private Condemnation Proceedings into Quiet Title Action. - Trial court did not err by applying G.S. 1A-1, Rule 15(b) in such a way as to convert condemnation proceedings brought by private condemnors, with the consent of the parties, into an action to quiet title. VEPCO v. Tillett, 316 N.C. 73, 340 S.E.2d 62 (1986).

Necessity to Allege and Prove Compliance with Procedural Requirements. - When a city undertakes to exercise the power of eminent domain which has been granted to it by the legislature, it is necessary that it both allege and prove compliance with statutory procedural requirements. City of Charlotte v. McNeely, 8 N.C. App. 649, 175 S.E.2d 348 (1970).

The provisions of the general railroad act prevail over provisions in the charter of a railroad company, unless the charter specifically designates and repeals these provisions of the general act. Durham & N.R.R. v. Richmond & D.R.R., 106 N.C. 16, 10 S.E. 1041 (1890).

Municipal Annexation Proceedings Enjoined by Condemnor-County. - When a county initiates condemnation of property for a sanitary landfill, and the property is being considered for voluntary annexation into a municipality, the county may proceed with the condemnation action. The county is entitled to an injunction enjoining the annexation proceeding, and the property owners and the municipality may raise the proposed annexation in the answer to the condemnation complaint, for appropriate consideration by the court. Yandle v. Mecklenburg County, 85 N.C. App. 382, 355 S.E.2d 216, cert. denied, 320 N.C. 798, 361 S.E.2d 91 (1987).

Applied in Bandy v. City of Charlotte, 72 N.C. App. 604, 325 S.E.2d 17 (1985); Nelson v. Town of Highlands, 159 N.C. App. 393, 583 S.E.2d 313 (2003); City of Wilson Redevelopment Comm'n v. Boykin, 193 N.C. App. 20, 667 S.E.2d 282 (2008).

Cited in Davidson County v. City of High Point, 85 N.C. App. 26, 354 S.E.2d 280 (1987); Town of Emerald Isle ex rel. Smith v. State, 320 N.C. 640, 360 S.E.2d 756 (1987); Dare County Bd. of Educ. v. Sakaria, 118 N.C. App. 609, 456 S.E.2d 842 (1995); Hancock v. Tenery, 131 N.C. App. 149, 505 S.E.2d 315 (1998); Town of Midland v. Morris, 209 N.C. App. 208, 704 S.E.2d 329, review denied, 365 N.C. 198, 710 S.E.2d 3, 2011 N.C. LEXIS 245, dismissed and review denied, 365 N.C. 198, 710 S.E.2d 1, 2011 N.C. LEXIS 265 (2011).

CASE NOTES

Editor's Note. - Some of the cases below were decided under similar former provisions.

Meaning of "Eminent Domain". - The words "eminent domain" mean the power of the sovereign or some agency authorized by it to take private property for public use. VEPCO v. King, 259 N.C. 219, 130 S.E.2d 318 (1963).

Eminent Domain Not Intended Absent Provision for Compensation. - Where a statute makes no provision for compensation, it is to be presumed that the legislature did not intend that the power of eminent domain should be exercised. Commissioners of Beaufort County v. Bonner, 153 N.C. 66, 68 S.E. 970 (1910).

Impairment of Property Rights Unconstitutional Unless Compensation Provided. - A statutory amendment to a former statute which destroyed and sensibly impaired vested property rights acquired under the former statute or which attempted to transfer them either to the public or any other, except under the principles of eminent domain and upon compensation duly made, was unconstitutional and invalid. Watts v. Lenoir & Blowing Rock Turnpike Co., 181 N.C. 129, 106 S.E. 497 (1921).

Definition of "property" is broad enough to include profits a prendre, requiring just compensation to the owner of that interest when the right to enter upon lands is lost through condemnation. In re Lee, 85 N.C. App. 302, 354 S.E.2d 759, cert. denied, 320 N.C. 513, 358 S.E.2d 520 (1987).

Inclusion of Equipment Within Definition of Property - It was not error for trial court to allow testimony about the value of the property to be taken which included various equipment present on the property, as the authority proposing to take the property never specifically excluded this equipment from its taking, and it could be included within the definition of property in G.S. 40A-2(7). Piedmont Triad Reg'l Water Auth. v. Lamb, 150 N.C. App. 594, 564 S.E.2d 71, cert. denied, 356 N.C. 166, 568 S.E.2d 608 (2002).

Diversion of Water as a "Taking". - Diversion of the natural flow and drainage of streams and surface waters incident to the construction of a highway, resulting in the periodic flooding of the lands of a proprietor, is a "taking" of property for which just compensation must be paid. Braswell v. State Hwy. & Pub. Works Comm'n, 250 N.C. 508, 108 S.E.2d 912 (1959).

Trial court properly applied the common law doctrine of riparian rights to determine that a public water authority had taken property owners' riparian rights and that the owners were entitled to compensation for the taking because the owners were able to present evidence at trial that the authority's diversion of water had reduced and would continue to reduce the natural rate of flow in a river, and nothing in the impoundment statutes, G.S. 143-215.44 to 143-215.50, or a North Carolina Environmental Management Commission (EMC) certificate stated that the authority was not obligated to pay just compensation; the impoundment statutes and the EMC certificate authorized the authority to exercise its power of eminent domain by diverting the water flow in the river in order to develop a public water supply, but just because the authority was authorized to exercise its powers of eminent domain, it did not follow that the authority was relieved of the constitutional mandate to compensate those whose property was taken. L&S Water Power, Inc. v. Piedmont Triad Reg'l Water Auth., 211 N.C. App. 148, 712 S.E.2d 146 (2011).

The term "other persons" as used in the cartway statute, does include counties. Davis v. Forsyth County, 117 N.C. App. 725, 453 S.E.2d 231 (1995).

Month-to-Month Tenant as Owner. - A tenant having month-to-month tenancy based upon periodic rental payments without a written document is considered to be an "owner" as defined by this section, and has standing to challenge a condemnation proceeding itself as arbitrary, capricious, and an abuse of discretion. Transcontinental Gas Pipe Line Corp. v. Calco Enters., 132 N.C. App. 237, 511 S.E.2d 671 (1999).

Digging a ditch across private land to drain a public road amounts to a taking of private property for a public use. State v. New, 130 N.C. 731, 41 S.E. 1033 (1902).

Statute giving power to overseers of roads to cut poles on adjacent land was an instance of the exercise on the part of the sovereign of the right to take private property for the use of the public upon making compensation. Collins v. Creecy, 53 N.C. 333 (1861).

Where a landowner has granted a right-of-way over his land, he must look to his contract for compensation, 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. Feldman v. Transcontinental Gas Pipe Line Corp., 9 N.C. App. 162, 175 S.E.2d 713 (1970).

Cited in VEPCO v. Tillett, 316 N.C. App. 73, 343 S.E.2d 188 (1986); Dare County Bd. of Educ. v. Sakaria, 127 N.C. App. 585, 492 S.E.2d 369 (1997); City of Durham v. Woo, 129 N.C. App. 183, 497 S.E.2d 457, cert. denied, 348 N.C. 496, 518 S.E.2d 380 (1998).

CASE NOTES

• I. General Consideration.
• II. Public Use.
• III. Private Condemnors.
  • A. In General.
  • B. Railroad Rights-of-Way.
• IV. Public Condemnors.
• V. Condemnation of Burial Grounds or Dwellings.
• VI. Judicial Review.

CASE NOTES

Cited in Catawba County v. Wyant, 197 N.C. App. 533, 677 S.E.2d 567 (2009).

CASE NOTES

Condemnation by Municipality of Land Owned by Railroad Company. - A municipal corporation had the power, under its charter and the general powers of eminent domain conferred upon it by statute, to condemn for necessary street purposes a strip of land owned by a railroad company, when such property was not being used by the railroad company and was neither necessary nor essential to the operation of its business. City of Goldsboro v. Atlantic Coast Line R.R., 246 N.C. 101, 97 S.E.2d 486 (1957), decided under prior law.

Acquisition of Land of One Railroad by Another. - Land acquired by one railroad company under a legislative grant of the right of eminent domain, and unnecessary for the exercise of its franchise or the discharge of its duties, is liable to be taken under the law of eminent domain for the use of another railroad company. North Carolina & R. & D.R.R. v. Carolina Cent. Ry., 83 N.C. 489 (1880), decided under prior law.

Impact Fees Not Authorized. - Public utility authority and a county were not authorized to assess sewer and water impact fees against developers because, inter alia, another entity provided such service to the developers and that entity's property was in actual use and needed to run the entity's business could not be condemned. Point South Props., LLC v. Cape Fear Pub. Util. Auth., 243 N.C. App. 508, 778 S.E.2d 284 (2015), overruled in part by Quality Built Homes Inc. v. Town of Carthage, 371 N.C. 60, 813 S.E.2d 218, 2018 N.C. LEXIS 325 (2018).

CASE NOTES

Procedure for Condemning Excess Property. - The condemnor may condemn property in excess of that needed for an otherwise valid public purpose, as envisioned under this section, provided that it identifies the land to be condemned, demonstrates that the unneeded remainder of property is "of little value"; the condemnor has carried its burden of proof, the condemning authority must then affirmatively demonstrate the proposed condemnation is authorized by subsection (a)(1), (2), or (3). Piedmont Triad Reg'l Water Auth. v. Sumner Hills, Inc., 353 N.C. 343, 543 S.E.2d 844 (2001).

Applicability of Section. - This section applies only to cases involving partial takings. Town of Hillsborough v. Crabtree, 143 N.C. App. 707, 547 S.E.2d 139, cert. denied, 354 N.C. 75, 553 S.E.2d 213 (2001).

"Little Value" Not Shown. - Condemnor's failure on appeal to contradict the court's finding regarding the value of land it sought to condemn in excess of that needed for an otherwise valid public purpose supported the trial court's conclusion of law that the 97-acre remainder was "not of such shape, size or condition as to render it of little value." Piedmont Triad Reg'l Water Auth. v. Sumner Hills, Inc., 353 N.C. 343, 543 S.E.2d 844 (2001).

Appellate review is appropriate to protect the due process rights of landowners affected by a condemnor who seeks to condemn property in excess of what is needed for an otherwise valid public purpose; de novo review of whether the condemnor has satisfied the "of little value" requirement, as well as the condemnor's burden of proof under subsection (a)(1), (2), or (3), best ensures uniform and constitutional application of this section. Piedmont Triad Reg'l Water Auth. v. Sumner Hills, Inc., 353 N.C. 343, 543 S.E.2d 844 (2001).

CASE NOTES

An award of counsel fees to the landowner is not authorized when judgment awards title to the condemnor and compensation to the landowner in a proceeding instituted by the condemnor. Housing Auth. v. Farabee, 284 N.C. 242, 200 S.E.2d 12 (1973), decided under prior law.

Award of Attorneys' Fees in Inverse Condemnation Proceeding. - It is consistent with this section to award attorneys' fees when a landowner's counterclaim is the impetus behind the condemnor's concession that it took land not described in the complaint and declaration of taking, and when a verdict demonstrates that the jury awarded compensation for that taking. City of Raleigh v. Hollingsworth, 96 N.C. App. 260, 385 S.E.2d 513 (1989), cert. denied, 326 N.C. 363, 389 S.E.2d 816 (1990).

Inference as to Award of Attorney's Fees Improper. - Provision by the legislature for the payment of reasonable attorneys' fees when the power of eminent domain was exercised by urban redevelopment commissions under G.S. 160A-500 et seq. could not be used by the courts to infer a similar intention in condemnation proceedings instituted by housing authorities under other statutes containing no language definitely indicating such legislative intent. Housing Auth. v. Farabee, 284 N.C. 242, 200 S.E.2d 12 (1973), decided under prior law.

Plaintiff Could Not Proceed in One Action with Petition for Certiorari and Complaint for Costs, Damages, etc. - Plaintiff's petition for writ of certiorari to review town's decision denying plaintiff's subdivision permit application was improperly joined with her complaint against the town in which she alleged constitutional violations and sought damages, costs, and attorneys' fees pursuant to this section. Batch v. Town of Chapel Hill, 326 N.C. 1, 387 S.E.2d 655, cert. denied, 496 U.S. 931, 110 S. Ct. 2631, 110 L. Ed. 2d 651 (1990).

Failure to Make Findings of Fact. - Case remanded for failure of trial court to make findings of fact as required by this section in support of an award of attorney's fees. Concrete Mach. Co. v. City of Hickory, 134 N.C. App. 91, 517 S.E.2d 155 (1999).

Assessment of Costs Upheld. - Where although city filed a Declaration of Taking, it did not include property held to have been inversely condemned, the court's assessment of costs under this section was proper. City of Winston-Salem v. Ferrell, 79 N.C. App. 103, 338 S.E.2d 794 (1986).

Award of Attorney's Fees Affirmed. - As the property owners' billing documents were competent evidence to support awarding attorney's fees in the amounts listed in the affidavits, and the town's contention that it had no opportunity to object to the admission of the billing documents was unfounded, the award of attorney's fees under G.S. 40A-8(b), G.S. 1.209.1, and G.S. 7A-305(d) were affirmed. Town of N. Topsail Beach v. Forster-Pereira, 194 N.C. App. 763, 670 S.E.2d 590 (2009).

Cited in Yates v. Jamison, 782 F.2d 1182 (4th Cir. 1986); Finch v. City of Durham, 325 N.C. 352, 384 S.E.2d 8 (1989); Town of Midland v. Morris, 209 N.C. App. 208, 704 S.E.2d 329, review denied, 365 N.C. 198, 710 S.E.2d 3, 2011 N.C. LEXIS 245, dismissed and review denied, 365 N.C. 198, 710 S.E.2d 1, 2011 N.C. LEXIS 265 (2011).

CASE NOTES

Applied in Scotland County v. Johnson, 131 N.C. App. 765, 509 S.E.2d 213 (1998).

CASE NOTES

Recognition that situations may change. - Situations may change and condemned property may not always be used for the purpose that gave rise to the original condemnation proceeding. When a town in good faith initiates condemnation proceedings for a public use and in accord with legal requirements, the fact that some obstacle may potentially derail the intended use will not defeat that purpose. Town of Highlands v. Hendricks, 164 N.C. App. 474, 596 S.E.2d 440, cert. denied, 359 N.C. 75, 605 S.E.2d 149 (2004).

CASE NOTES

Editor's Note. - The cases below were decided under similar former provisions.

Constitutionality. - Statutes authorizing bodies having the power of eminent domain to enter onto land for purposes of conducting preliminary surveys and the like, containing no provision for compensation to the landowner for such use of the land, are not violative of constitutional provisions against the taking of private property for public purposes without prior payment of just compensation. Duke Power Co. v. Herndon, 26 N.C. App. 724, 217 S.E.2d 82 (1975).

Nature of Right of Entry. - The right of entry granted a railroad company under this section is only for the purpose of marking out the route and designating the building sites desired, to the end that the parties may come to an intelligent agreement as to the price, and without the consent of the owner the company cannot enter by virtue of this section for the purpose of building its road. State v. Wells, 142 N.C. 590, 55 S.E. 210 (1906).

Entry Prior to Condemnation Not a "Taking." - An entry for the purpose of laying out the proposed route for an easement does not constitute a "taking." Duke Power Co. v. Herndon, 26 N.C. App. 724, 217 S.E.2d 82 (1975).

The mere threat to take a right-of-way under the power of eminent domain and an isolated act in going upon the land to make a preliminary survey are insufficient to constitute a "taking." Penn v. Carolina Va. Coastal Corp., 231 N.C. 481, 57 S.E.2d 817 (1950).

Railroad Company Not a Trespasser. - A railroad company having the right of eminent domain, entering upon and occupying lands for building its tracks, is not a trespasser. Abernathy v. South & W.R.R., 150 N.C. 97, 63 S.E. 180 (1908).

Opinions of Attorney General

As to former G.S. 40-3, see opinion of Attorney General to Mr. James R. Taylor, Executive Director, Statesville Housing Authority, 40 N.C.A.G. 314 (1969).

CASE NOTES

Applicability of Rules of Civil Procedure to Private Condemnation Proceedings. - This section, together with G.S. 1-393, gives trial courts clear authority to apply the Rules of Civil Procedure, G.S. 1A-1, in private condemnation proceedings, at least to the extent that those rules do not directly conflict with procedures specifically mandated by this Chapter. VEPCO v. Tillett, 316 N.C. 73, 340 S.E.2d 62, cert. denied, 317 N.C. 715, 347 S.E.2d 457 (1986).

Applicability of Rule 60, Rules of Civil Procedure. - Rule 60, of the Rules of Civil Procedure, applies to proceedings under Chapter 40A in order to provide relief from judgments or orders when necessary to promote the interests of justice. City of Durham v. Woo, 129 N.C. App. 183, 497 S.E.2d 457, cert. denied, 348 N.C. 496, 518 S.E.2d 380 (1998).

Conversion of Private Condemnation Proceeding into Quiet Title Action. - Trial court did not err by applying G.S. 1A-1, Rule 15(b) in such a way as to convert condemnation proceeding brought by private condemnors, with the consent of the parties, into an action to quiet title. VEPCO v. Tillett, 316 N.C. 73, 340 S.E.2d 62, cert. denied, 317 N.C. 715, 347 S.E.2d 457 (1986).

Power of Court to Make Rules of Procedure. - The legislature, recognizing the difficulty of doing more than outlining the mode of practice so as to safeguard the rights of the parties, has conferred upon the court the power to make rules of procedure when they are not expressly provided by statute. Abernathy v. South & W.R.R., 150 N.C. 97, 63 S.E. 180 (1908), decided under prior law.

Mandatory Injunctive Relief Ancillary to and Exceeds Ordinary Relief Afforded by Judgment Resolving a Dispute as to Title. - Landowner sought more than just a procedural ruling; she sought the additional substantive right to compel removal of the town's sewer pipe by order of the trial court; because mandatory injunctive relief was ancillary to and thus exceeded the ordinary relief afforded by a judgment resolving a dispute as to title, the landowner's reliance on the statute was misplaced. Town of Apex v. Rubin, - N.C. App. - , 858 S.E.2d 387 (May 4, 2021).

CASE NOTES

Taxing of Costs Where Owner Not Entitled to Recovery. - In an action to recover damages for the taking of land for use as a sidewalk by defendant municipality, where the jury found plaintiff was entitled to recover nothing, the court could properly tax the costs against the defendant. Jervis v. Mars Hill, 214 N.C. 323, 199 S.E. 96 (1938), decided under prior law.

Under former law, when it was decided by the superior court that defendant owner's benefit equalled the damages, the plaintiff corporation would pay the costs; however, if the defendant appealed and the decision of the lower court was affirmed, then the cost of the appeal would fall upon the defendant. Madison County R.R. v. Gahagan, 161 N.C. 190, 76 S.E. 696 (1912), decided under prior law.

§§ 40A-14 through 40A-18: Reserved for future codification purposes.

CASE NOTES

Editor's Note. - Many of the cases below were decided under similar former provisions.

Statutes prescribing the procedure to condemn lands should be strictly construed. Redevelopment Comm'n v. Grimes, 8 N.C. App. 376, 174 S.E.2d 839 (1970), rev'd on other grounds, 277 N.C. 634, 178 S.E.2d 345 (1971).

One cannot condemn that which he owns. VEPCO v. King, 259 N.C. 219, 130 S.E.2d 318 (1963).

Condemnation under the power of eminent domain is a proceeding in rem against the property. Redevelopment Comm'n v. Hagins, 258 N.C. 220, 128 S.E.2d 391 (1962).

Only when the parties cannot agree may condemnation proceedings be instituted. Weyerhaeuser Co. v. Carolina Power & Light Co., 257 N.C. 717, 127 S.E.2d 539 (1962).

Statutory method of condemning a right-of-way can be exercised when the parties are unable to agree upon the terms of acquisition. Allen v. Wilmington & W.R.R., 102 N.C. 381, 9 S.E. 4 (1889).

Before the right of eminent domain accrues to the condemnor, there must exist an inability to agree for the purchase price. This has been held to be a preliminary jurisdictional fact. State Hwy. Comm'n v. Matthis, 2 N.C. App. 233, 163 S.E.2d 35 (1968).

And Condemnor Must First Make a Bona Fide Effort to Purchase. - Before the agency seeking to acquire can ask the court to condemn, it must make a bona fide effort to purchase by private negotiation. VEPCO v. King, 259 N.C. 219, 130 S.E.2d 318 (1963).

Unless Minors Are Interested in Land Sought to Be Acquired. - It is not required of a quasi public service corporation authorized to condemn land that it first endeavor to agree with the owners when it is made to appear that infants have an interest therein, and otherwise that a title to the lands could not be acquired in such way. Western Carolina Power Co. v. Moses, 191 N.C. 744, 133 S.E. 5 (1926).

Procedure Applicable Only to Acquisition of Right, etc., to Specific Land. - Provisions for commissioners, appraisal, viewing the premises, etc., are applicable only to instances where the condemnor acquires title and right to possession of specific land. Eller v. Board of Educ., 242 N.C. 584, 89 S.E.2d 144 (1955).

Procedure Not Applicable to Trespasses. - Provisions with regard to procedure by private condemnors only apply to the mode of acquiring title to real estate and getting a right-of-way, and have no application to trespasses committed outside of the right-of-way in building the road; for such trespasses, the corporations are liable in a civil action. Bridgers v. Dill, 97 N.C. 222, 1 S.E. 767 (1887).

Applicability of Procedure to Railroads. - The method of proceeding prescribed for the condemnation of land by railroad corporations is applicable to all railroads, whether formed under the general law or special act of incorporation. Allen v. Wilmington & W.R.R., 102 N.C. 381, 9 S.E. 4 (1889).

Condemnation by Department of Transportation. - The procedure prescribed by former G.S. 40-11, et seq. was applicable to condemnation proceedings instituted by the Board (now Department) of Transportation prior to July 1, 1960, while the procedure presently applicable to condemnation proceedings by the Board (now Department) of Transportation is prescribed by G.S. 136-103 et seq. City of Kings Mountain v. Goforth, 283 N.C. 316, 196 S.E.2d 231 (1973). As to condemnation by the former State Highway Commission and former Board (now Department) of Transportation, see also Yancey v. North Carolina State Hwy. & Pub. Works Comm'n, 222 N.C. 106, 22 S.E.2d 256 (1942); State v. Alston, 272 N.C. 278, 158 S.E.2d 52 (1967); State v. Pritchard, 227 N.C. 168, 41 S.E.2d 287 (1947); State v. Lashley, 21 N.C. App. 83, 203 S.E.2d 71 (1974), cert. denied, Cox v. Cox, 92 N.C. App. 702, 376 S.E.2d 13 (1989); Hamlin v. Hamlin, 302 N.C. 478, 276 S.E.2d 381 (1981).

As to procedure for condemnation by county board of education, see Board of Educ. v. Forrest, 193 N.C. 519, 137 S.E. 431 (1927).

As to acquisition of property by redevelopment commission, see Redevelopment Comm'n v. Abeyounis, 1 N.C. App. 270, 161 S.E.2d 191 (1968); Redevelopment Comm'n v. Grimes, 277 N.C. 634, 178 S.E.2d 345 (1971).

Applicability of Rules Governing Civil Actions. - As a proceeding to condemn land under statutory power is a special proceeding, the requirement of G.S. 1-393 that "except as otherwise provided" special proceedings shall be governed by the same rules laid down for civil actions is applicable thereto. Nantahala Power & Light Co. v. Whiting Mfg. Co., 209 N.C. 560, 184 S.E. 48 (1936).

Applicability of Rules of Civil Procedure to Private Condemnation Proceedings. - This section, together with G.S. 1-393, gives trial courts clear authority to apply the Rules of Civil Procedure, G.S. 1A-1, in private condemnation proceedings, at least to the extent that those rules do not directly conflict with procedures specifically mandated by this Chapter. VEPCO v. Tillett, 316 N.C. 73, 340 S.E.2d 62, cert. denied, 317 N.C. 715, 347 S.E.2d 457 (1986).

Conversion of Private Condemnation Proceeding into Quiet Title Action. - Trial court did not err by applying G.S. 1A-1, Rule 15(b) in such a way as to convert condemnation proceeding brought by private condemnors with the consent of the parties, into an action to quiet title. VEPCO v. Tillett, 316 N.C. 73, 340 S.E.2d 62, cert. denied, 317 N.C. 715, 347 S.E.2d 457 (1986).

Payment Prerequisite to Right of Entry. - If the parties cannot agree, the company may proceed to condemn the land; it does not acquire the right to enter for the purpose of constructing the road until the amount of the appraisement has been paid into court. State v. Wells, 142 N.C. 590, 55 S.E. 210 (1906).

A condemnor acquires no right to possession in a condemnation proceeding until it pays into court the value of the subject property, as determined by appraisers. City of Kings Mountain v. Goforth, 283 N.C. 316, 196 S.E.2d 231 (1973).

Payment Prerequisite to Acquisition of Title. - A condemnor acquires no title to the property until it obtains a final judgment and pays to the landowner the amount of compensation fixed by such judgment. City of Kings Mountain v. Goforth, 283 N.C. 316, 196 S.E.2d 231 (1973).

Use of Property by Owner Until Payment. - Absent unusual circumstances, the landowner may continue to use his property from the commencement of a condemnation proceeding until the payment into court by the condemnor of the value of the property as determined by commissioners, to the same extent and in the same manner as he had been using it prior to commencement of the condemnation proceeding. City of Kings Mountain v. Goforth, 283 N.C. 316, 196 S.E.2d 231 (1973).

Each owner is entitled to defend upon the ground that his property does not qualify for the purpose intended, or that its selection was the result of arbitrary or capricious conduct on the part of the taking agency. Redevelopment Comm'n v. Hagins, 258 N.C. 220, 128 S.E.2d 391 (1962).

A landowner may not maintain a proceeding unless there has been a taking under the power of eminent domain. Hughes v. North Carolina State Hwy. Comm'n, 275 N.C. 121, 165 S.E.2d 321 (1969).

Statutory remedy held the only one open to one whose land was appropriated as a right-of-way. McIntire v. Western N.C.R.R., 67 N.C. 278 (1872); Allen v. Wilmington & W.R.R., 102 N.C. 381, 9 S.E. 4 (1889).

Election to Sue for Damages. - Where a railroad or other public service corporation has made the entry, appropriated the right-of-way, constructed its road and is operating the same, and neither party has seen fit to resort to the statutory method, the owner of the land has the right at his election to sue for permanent damages, and on payment of the same the easement will pass to the defendant. Mason v. Durham County, 175 N.C. 638, 96 S.E. 110 (1918).

Cited in VEPCO v. Tillett, 80 N.C. App. 383, 343 S.E.2d 188 (1986); Carolina Tel. & Tel. Co. v. McLeod, 321 N.C. 426, 364 S.E.2d 399 (1988).

CASE NOTES

• I. In General.
• II. Contents of Petition.

CASE NOTES

Cited in Rutherford Elec. Mbrshp. Corp. v. 130 of Chatham, LLC, 236 N.C. App. 87, 763 S.E.2d 296 (2014).

CASE NOTES

Issuance of Summons. - A condemnation proceeding is a special proceeding and a summons should issue as in all other cases. Carolina & N.W.R.R. v. Pennearden Lumber & Mfg. Co., 132 N.C. 644, 44 S.E. 358 (1903), decided under prior law.

Applied in VEPCO v. Tillett, 73 N.C. App. 512, 327 S.E.2d 2 (1985).

CASE NOTES

When service by publication inadequate. - Service by publication is not an adequate substitute for actual notice, when giving actual notice to identified parties is neither impossible, impractical, nor unreasonable. United States v. Chatham, 323 F.2d 95 (4th Cir. 1963), decided under prior law.

When condemnation plaintiffs take the easy course, they should not be heard to say that the proceedings had upon published notice addressed to unknown persons foreclosed the rights of interested parties who were readily identifiable and easily served, particularly when the condemnation plaintiff knew, or should have known, that the unidentified persons had a substantial interest in the litigation. United States v. Chatham, 323 F.2d 95 (4th Cir. 1963), decided under prior law.

CASE NOTES

Editor's Note. - Most of the cases below were decided under similar former provisions.

Strict Construction. - Statutes prescribing the procedure to condemn lands should be strictly construed. Redevelopment Comm'n v. Grimes, 8 N.C. App. 376, 174 S.E.2d 839, rev'd on other grounds, 277 N.C. 634, 178 S.E.2d 345 (1970).

Legislative Intent with Regard to Parties. - Tenant having month-to-month tenancy based upon periodic rental payments without a written document is a person having an estate or interest affected by condemnation proceedings; if the legislature had intended to give a diminished status to month-to-month tenancies, it could have expressly done so. Transcontinental Gas Pipe Line Corp. v. Calco Enters., 132 N.C. App. 237, 511 S.E.2d 671 (1999).

The clerk is to hold the hearing on the challenge only after notice to the parties. Collins v. North Carolina State Hwy. & Pub. Works Comm'n, 237 N.C. 277, 74 S.E.2d 709 (1953); City of Randleman v. Hinshaw, 267 N.C. 136, 147 S.E.2d 902 (1966).

The statutory procedure is designed to provide to the landowner a fair determination of his damages; it would be converted into a farce if it were construed to permit the clerk to appoint commissioners, the commissioners to meet and determine the damages and report the same to the clerk, and the clerk 20 days later to enter a final judgment, all with no notice whatever to the landowner, other than the original summons in the proceedings, and all before the time for filing his answer, as extended by the clerk, expired. City of Randleman v. Hinshaw, 267 N.C. 136, 147 S.E.2d 902 (1966).

Burden on Respondent. - Trial court's finding that the energy company's condemnation of part of the property owner's property to condemn an easement across the property would not affect the property owner's reasonable-size garden was supported by the evidence, and thus the order granting condemnation would not be overturned; the property owner, as the respondent, had the burden of proof to show that condemnation in the private condemnation proceeding initiated by the energy company would not be proper and the property owner did not meet that burden. Progress Energy Carolinas, Inc. v. Strickland, 181 N.C. App. 610, 640 S.E.2d 856 (2007).

Effect of Notice of Hearing. - If the landowner is given notice of the hearing before the clerk, this would, no doubt, be sufficient to charge him with notice of an order entered by the clerk, at such hearing, appointed commissioners and fixing the time and place for their first meeting. In turn, this would charge him with notice of actions of the commissioners at such first meeting, including the adjournment of such meeting to another time and place. City of Randleman v. Hinshaw, 267 N.C. 136, 147 S.E.2d 902 (1966).

Notice of Motions. - All motions made before the clerk, other than those grantable as a matter of course or those specifically provided for by law, require notice to the parties affected thereby. City of Randleman v. Hinshaw, 267 N.C. 136, 147 S.E.2d 902 (1966).

Advisability of Street Widening Project in Discretion of Aldermen. - The advisability of widening a street is a matter committed by law to the sound discretion of the aldermen, with which neither the defendants nor the courts can interfere; it is a political and administrative measure of which the defendants are not even entitled to notice or to be heard. Durham v. Rigsbee, 141 N.C. 128, 53 S.E. 531 (1906).

Railroad as Judge of Necessity of Land for Right-of-Way. - A railroad company is entitled to so much of the right-of-way as may be necessary for the purpose of the company; hence, the denial by a person in the possession of a portion of the right-of-way that the portion in controversy was necessary for the purposes of the company did not raise an issue of fact to be determined by a jury, as the company was the judge of the necessity and extent of such use. Seaboard Air Line R.R. v. Olive, 142 N.C. 257, 55 S.E. 263 (1906).

When Extent of Rights to Be Acquired Are an Issuable Question. - The extent and limit of the rights to be acquired are primarily and very largely referred to the companies or grantees of the power, and only becomes an issuable question, usually determinable by the court, on allegation of fact tending to show bad faith on the part of the companies or an oppressive or manifest abuse of their discretion. Yadkin River Power Co. v. Wissler, 160 N.C. 269, 76 S.E. 267 (1912), distinguishing, Carolina Cent. R.R. v. Love, 81 N.C. 434 (1879).

Clerk Without Authority to Appoint Commissioners Until Determination of Controverted Facts. - In a special proceeding to condemn land for urban renewal, the clerk of superior court does not have authority to issue an order appointing commissioners of appraisal where respondents deny the allegations of the petition; the record must show that after a proper hearing the controverted facts had been determined in favor of petitioner, the clerk's finding that commissioners should be appointed not being a sufficient finding of the controverted facts. Redevelopment Comm'n v. Grimes, 8 N.C. App. 376, 174 S.E.2d 839 (1970), rev'd on other grounds, 277 N.C. 634, 178 S.E.2d 345 (1971).

Procedure Where Issuable Matters Are Raised Before Clerk. - Where issuable matters are raised before the clerk he should pass upon these matters presented in the record, and have the land assessed through commissioners, as the statute directs, allowing the parties, by exceptions, to raise any question of law or fact issuable or otherwise to be considered on appeal to the superior court from his award of damages, as provided by law. Selma v. Nobles, 183 N.C. 322, 111 S.E. 543 (1922).

When respondents in a special proceeding to condemn land for urban renewal deny the allegations of the petition, the clerk of superior court has the duty, after notice, to hear the parties and pass upon the disputed matters presented on the record; if the allegations of the petition are found to be true, the clerk must then appoint commissioners to appraise the property and assess damages for the taking. Redevelopment Comm'n v. Grimes, 8 N.C. App. 376, 174 S.E.2d 839 (1970), rev'd on other grounds, 277 N.C. 634, 178 S.E.2d 345 (1971).

Procedure Where Only Issue of Just Compensation Is Raised. - Where the answer does not deny the right of the city to acquire the desired easements by condemnation and raises no issue save that of just compensation, the only matter to be determined by the clerk at the initial hearing is the selection and appointment of the commissioners and the fixing of the time and place for their first meeting. City of Randleman v. Hinshaw, 267 N.C. 136, 147 S.E.2d 902 (1966).

As to protection of rights of parties by interlocutory injunction, see Selma v. Nobles, 183 N.C. 322, 111 S.E. 543 (1922).

Pretrial Conference. - In a condemnation proceeding, the trial court should conduct a pretrial conference where the record shows that the parties have different concepts of what phase of the matter they are going to try. Redevelopment Comm'n v. Grimes, 8 N.C. App. 376, 174 S.E.2d 839 (1970), rev'd on other grounds, 277 N.C. 634, 178 S.E.2d 345 (1971).

If corporate charter is on its face inoperative and void, a court will so declare it in any proceedings to condemn lands by virtue of the right of eminent domain claimed thereunder. Kinston & C.R.R. v. Stroud, 132 N.C. 413, 43 S.E. 913 (1903); Holly Shelter R.R. v. Newton, 133 N.C. 132, 133 N.C. 136, 45 S.E. 549 (1903).

Collateral Attack by Landowner Not Upheld. - The court would not sustain a collateral attack and deny the right of condemnation upon a suggestion that the petitioner might exceed its chartered right in the use of the property acquired by condemnation. Wadsworth Land Co. v. Piedmont Traction Co., 162 N.C. 314, 78 S.E. 297 (1913).

Order appointing commissioners to assess damages is interlocutory, and no appeal will be entertained until after final judgment upon the report of the commissioners. American Union Tel. Co. v. Wilmington, C. & A.R.R., 83 N.C. 420 (1880); Commissioners of Davie County v. Cook, 86 N.C. 18 (1882); Norfolk & S.R.R. v. Warren, 92 N.C. 620 (1885); Hendrick v. Carolina Cent. R.R., 98 N.C. 431, 4 S.E. 184 (1887), distinguishing Click v. Western N.C.R.R., 98 N.C. 390, 4 S.E. 183 (1887).

Appeal from Ruling of Clerk. - It is only after the clerk of superior court confirms or fails to confirm the report of the commissioners that either party aggrieved by the ruling of the clerk may appeal; such appeal carries the entire record up for review by the trial judge upon the questions of fact. Redevelopment Comm'n v. Grimes, 277 N.C. 634, 178 S.E.2d 345 (1970).

Finding of Facts by Court Conclusive. - In condemnation proceedings, when it is proper for the lower court to find the facts, its findings upon competent supporting evidence are conclusive. Johnson City S.R.R. v. South & W.R.R., 148 N.C. 59, 61 S.E. 683 (1908).

Cited in Hancock v. Tenery, 131 N.C. App. 149, 505 S.E.2d 315 (1998); Rutherford Elec. Mbrshp. Corp. v. 130 of Chatham, LLC, 236 N.C. App. 87, 763 S.E.2d 296 (2014).

CASE NOTES

• I. General Consideration.
• II. Compensation.

CASE NOTES

Editor's Note. - Some of the cases below were decided under similar former provisions.

Report of the commissioners is not invalid because it does not contain a description of the land, as that can be ascertained by reference to the location of the roadbed and right-of-way. Hanes v. North Carolina R.R., 109 N.C. 490, 13 S.E. 896 (1891).

Easement should be described in the report of the commissioners as fully and correctly as it would be in a grant, as the easement is conveyed to the petitioner by the report when confirmed. Suffolk & C.Ry. v. West End Land & Imp. Co., 137 N.C. 330, 49 S.E. 350 (1904).

Seal Not Required. - While it was formerly provided that the report of the commissioners should be under seal, this provision was not mandatory, but directory only, and omission of the seal was not a fatal defect. Hanes v. North Carolina R.R., 109 N.C. 490, 13 S.E. 896 (1891).

Report Not Set Aside for Failure to State Particulars of Benefits. - The report of the commissioners would not be set aside for failure to show in what the benefits assessed consist, where no objection was made when the report was submitted. Wilmington & W.R.R. v. Smith, 99 N.C. 131, 5 S.E. 237 (1888).

Cited in Rutherford Elec. Mbrshp. Corp. v. 130 of Chatham, LLC, 236 N.C. App. 87, 763 S.E.2d 296 (2014).

CASE NOTES

• I. In General.
• II. Exceptions and Appeals.

CASE NOTES

Editor's Note. - Many of the cases below were decided under similar former provisions.

Strict Construction. - The exercise of the power of eminent domain is in derogation of common right, and all laws conferring such power must be strictly construed. Redevelopment Comm'n v. Abeyounis, 1 N.C. App. 270, 161 S.E.2d 191 (1968).

A landowner is not entitled at the hearing before the clerk to a jury trial. Holly Shelter R.R. v. Newton, 133 N.C. 132, 133 N.C. 136, 45 S.E. 549 (1903); Kaperonis v. North Carolina State Hwy. Comm'n, 260 N.C. 587, 133 S.E.2d 464 (1963).

Entitlement to Jury Trial on Appeal. - While prior to 1893, if the parties did not demand trial by jury before the appointment of the commissioners they were deemed to have waived it, and it would not be thereafter granted, now the right of trial by jury upon an appeal from the report of the commissioners is specifically granted. Chowan & S.R.R. v. Parker, 105 N.C. 246, 11 S.E. 328 (1890); Holly Shelter R.R. v. Newton, 133 N.C. 132, 133 N.C. 136, 45 S.E. 549 (1903); Durham v. Rigsbee, 141 N.C. 128, 53 S.E. 531 (1906).

Right of Owner to Jury Trial in Proceedings Instituted by Town. - In condemnation proceedings instituted by a town for the taking of lands for a public municipal purpose, the owner is entitled to a trial by jury in the superior court to determine his damages when he has duly preserved such right by his exceptions and proper procedure, and when the trial judge has exercised his discretion in setting aside the amount theretofore awarded by the viewers, the cause continues in the court for the jury trial given him by statute; and an order directing the appointment of other commissioners by the clerk to go upon the land and assess the damages is erroneous. Ayden v. Lancaster, 195 N.C. 297, 142 S.E. 18 (1928).

Requirement of Timely Exceptions to Preserve Right to Appeal. - Former G.S. 40-20 (now this section), which guaranteed the right to have a jury determine the amount of damages, did not override the requirement of former G.S. 40-19 (now G.S. 40A-28), that exceptions be filed within 20 days of the commissioners' report. City of Raleigh v. Martin, 59 N.C. App. 627, 297 S.E.2d 916 (1982), decided under former G.S. 40-20.

Appeal Preserved Despite Absence of Specific Municipal Charter Provision Therefor. - Where a municipal charter provided for condemning lands of private owners for cemetery purposes in the manner prescribed for condemnation thereof for street or other purposes, without specific provisions for appeal, former G.S. 40-20 (now this section) nevertheless preserved the right of appeal, and the charter provisions would not be declared unconstitutional for failure to specially provide therefor. Long v. Rockingham, 187 N.C. 199, 121 S.E. 461 (1924).

Right to Jury Trial Limited. - There is a limitation on the right to demand trial by jury, and the idea that any such right is given in respect to the questions of the fact to be decided preliminary to the question of damages is clearly excluded. Madison County R.R. v. Gahagan, 161 N.C. 190, 76 S.E. 696 (1912).

The only question for determination by the jury is the issue of just compensation. Redevelopment Comm'n v. Abeyounis, 1 N.C. App. 270, 161 S.E.2d 191 (1968).

The amount of compensation is for determination de novo by jury trial in the superior court. Redevelopment Comm'n v. Smith, 272 N.C. 250, 158 S.E.2d 65 (1967); Redevelopment Comm'n v. Denny Roll & Panel Co., 273 N.C. 368, 159 S.E.2d 861 (1968).

When either party to a condemnation proceeding appeals to the superior court in term and demands that the damage be determined by a jury, the trial must proceed in the superior court, insofar as the question of damages is concerned, as though no commissioners of appraisal had ever been appointed. In re Proceedings by City of Greensboro, 21 N.C. App. 124, 203 S.E.2d 325 (1974).

Judgment Is Entered Upon the Jury's Verdict. - Upon appeal from the award of the appraisers in condemnation proceedings, the trial in the superior court is de novo, and must proceed, insofar as the question of damages is concerned, as though no commissioners of appraisal had ever been appointed; hence, the court properly enters judgment upon the verdict of the jury, regardless of whether it is greater or smaller than the award of the commissioners and regardless of which party took the appeal. Proctor v. State Hwy. & Pub. Works Comm'n, 230 N.C. 687, 55 S.E.2d 479 (1949).

The superior court at term is vested with authority to enter judgment for the landowner for the amount of damages fixed by the verdict of the jury, regardless of whether the same be greater or smaller than the sum originally awarded by the commissioners of appraisal, and regardless of whether the landowner or the condemnor took the appeal. In re Proceedings by City of Greensboro, 21 N.C. App. 124, 203 S.E.2d 325 (1974).

Property Involved in Voluntary Sale as Guide to Value. - Whether property involved in a voluntary sale is sufficiently similar in nature, location, and condition to the property appropriated by condemnation to admit evidence of its sale and the price paid therefor as a guide to the value of the condemned property is a question to be determined by the trial judge in the exercise of his sound discretion. Redevelopment Comm'n v. Denny Roll & Panel Co., 273 N.C. 368, 159 S.E.2d 861 (1968).

Cited in Progress Energy Carolinas, Inc. v. Strickland, 200 N.C. App. 600, 685 S.E.2d 521 (2009); Rutherford Elec. Mbrshp. Corp. v. 130 of Chatham, LLC, 236 N.C. App. 87, 763 S.E.2d 296 (2014).

CASE NOTES

Editor's Note. - Many of the cases below were decided under similar former provisions.

Purpose of Section. - Purpose of former G.S. 40-23 (similar to this section) is to prevent a corporation, having the right of eminent domain, from being indefinitely postponed in acquiring title and going on with its work or from being subjected to a succession of suits for compensation, and under its provisions, the company acquires the right-of-way and the court distributes the compensation. Abernathy v. South & W.R.R., 150 N.C. 97, 63 S.E. 180 (1908).

The phrase "adverse and conflicting claimants" does not include the condemnor. VEPCO v. King, 259 N.C. 219, 130 S.E.2d 318 (1963).

Who May Be "Adverse and Conflicting Claimants". - The phrase "adverse and conflicting claimants" is limited to those who assert adverse titles to the property and hence a conflict in interest as to the party entitled to the sum awarded, or those who are in agreement as to their respective titles but are in disagreement as to the value of their respective estates and hence the proportion of the award to which each is entitled. VEPCO v. King, 259 N.C. 219, 130 S.E.2d 318 (1963).

No Mandatory Provision as to Manner of Determining Interests. - Former G.S. 40-23 (similar to this section) contained no mandatory provision as to when or in what manner the respective interests were to be determined. Barnes v. North Carolina State Hwy. Comm'n, 257 N.C. 507, 126 S.E.2d 732 (1962).

Separation of Trial of Collateral Issues. - Ordinarily, the trial of collateral issues, involving a determination of what the respective claimants own, should be separate from the trial to determine the gross amount required to be paid. Barnes v. North Carolina State Hwy. Comm'n, 257 N.C. 507, 126 S.E.2d 732 (1962).

Preservation of Right to Except to Order of Compulsory Reference. - The provision of former G.S. 40-23 (similar to this section) that the court "may in its discretion order a reference to ascertain the facts on which such determination and order are to be made" did not deprive any claimant of his right to except to an order of compulsory reference and preserve his right to a jury trial as to controverted issues of fact. Barnes v. North Carolina State Hwy. Comm'n, 257 N.C. 507, 126 S.E.2d 732 (1962).

Right to Jury Trial on Controverted Issues of Fact. - The provision of former G.S. 40-23 (similar to this section) that the court "may determine who is entitled to the same and direct to whom the same shall be paid" contemplated a situation where such determination may be made as a matter of law, and it did not deprive any claimant of his right to a jury trial as to controverted issues of fact. Barnes v. North Carolina State Hwy. Comm'n, 257 N.C. 507, 126 S.E.2d 732 (1962).

Cited in VEPCO v. Tillett, 73 N.C. App. 512, 327 S.E.2d 2 (1985).

CASE NOTES

As to provision in former G.S. 40-19 for counsel fees for attorneys appointed for unknown parties, see North Carolina R.R. v. Goodwin, 110 N.C. 175, 14 S.E. 687 (1892); Durham v. Davis, 171 N.C. 305, 88 S.E. 433 (1916); Carolina Power & Light Co. v. Creasman, 262 N.C. 390, 137 S.E.2d 497 (1964); City of Charlotte v. McNeely, 281 N.C. 684, 190 S.E.2d 179 (1972), decided under similar former provisions.

CASE NOTES

Editor's Note. - The cases below were decided under similar former provisions.

Condemnation proceedings are considered a lis pendens. Hughes v. North Carolina State Hwy. Comm'n, 2 N.C. App. 1, 162 S.E.2d 661 (1968), rev'd on other grounds, 275 N.C. 121, 165 S.E.2d 321 (1969).

The right to convey land is not affected by the mere filing of condemnation proceedings, nor by appraisement without confirmation and payment, as all rights would pass to the grantee. Nantahala Power & Light Co. v. Whiting Mfg. Co., 209 N.C. 560, 184 S.E. 48 (1936), citing Liverman v. Roanoke & T.R.R., 109 N.C. 52, 13 S.E. 734 (1891) and Beal v. Durham & C.R.R., 136 N.C. 298, 48 S.E. 674 (1904).

Title Is Not Divested Until Payment. - Since the title of the person who owned the land immediately prior to the commencement of the proceedings is not divested until compensation is paid, he can sell. North Carolina State Hwy. Comm'n v. York Indus. Center, Inc., 263 N.C. 230, 139 S.E.2d 253 (1964).

The person who owns when the award is confirmed is the person to be compensated. North Carolina State Hwy. Comm'n v. York Indus. Center, Inc., 263 N.C. 230, 139 S.E.2d 253 (1964); City of Kings Mountain v. Goforth, 283 N.C. 316, 196 S.E.2d 231 (1973).

Subsequent Purchaser Not Barred From Recovery. - An owner of land who acquired title subsequent to the location by a railroad company was not barred of his remedy for compensation where the road was not finished more than two years before he began his action. Hendrick v. Carolina Cent. R.R., 101 N.C. 617, 8 S.E. 236 (1888); Beattie v. Carolina Cent. R.R., 108 N.C. 425, 12 S.E. 913 (1891).

The purchaser of land subsequent to the location thereon of a railroad may recover permanent damages for the easement taken. Phillips v. Postal Tel. Cable Co., 130 N.C. 513, 41 S.E. 1022, rev'd on other grounds on rehearing, 131 N.C. 225, 42 S.E. 587 (1902); Beal v. Durham & C.R.R., 136 N.C. 298, 48 S.E. 674 (1904).

Right to Compensation for Damages Passes with Conveyance. - Until a purchase or condemnation, the corporation's occupation is without title, and the conveyance of the land will pass to the vendee the right to compensation for damages. Liverman v. Roanoke & T.R.R., 109 N.C. 52, 13 S.E. 734 (1891).

Action for Unlawful Entry Is Personal. - The damages incident to the act of an unlawful entry upon land by a railway corporation are personal to the owner of the land, and do not pass by his subsequent conveyance of the premises. Liverman v. Roanoke & T.R.R., 109 N.C. 52, 13 S.E. 734 (1891).

The purchaser at the mortgage sale, while not entitled to the damages incident to the act of entry, might recover compensation for the land appropriated to the use of the company. Liverman v. Roanoke & T.R.R., 109 N.C. 52, 13 S.E. 734 (1891).

CASE NOTES

Public Purpose. - Because a sewer line connecting a landfill and to a public sewer system would be used by at least seven other users, and potentially 28 additional property owners, and because the county was not required by G.S. 40A-40(a) to give notice as to all the planned or potential users of the sewer line, the sewer line was properly found to be for a public purpose. Catawba County v. Wyant, 197 N.C. App. 533, 677 S.E.2d 567 (2009).

Long as Original Purpose Remains, No Fatal Inconsistency with Regard to Additional Uses. - Presuit notice of condemnation was sufficiently specific, where it stated the purpose of expanding and improving an existing landfill, even though the county's subsequent complaint stated additional uses, since the original purpose remained valid, and the county was not required to state with specificity the "uses" for which the property was taken. Scotland County v. Johnson, 131 N.C. App. 765, 509 S.E.2d 213 (1998).

Notice Requirement Satisfied. - Defendant's decision to estimate that no compensation was required did not violate plaintiffs' constitutional rights requiring just compensation because defendant adequately estimated that the benefit received by the project was sufficient compensation, and the issue of whether that was reasonable was more properly left for the condemnation hearing; defendant's estimate of no compensation adequately satisfied the notice requirement of G.S. 40A-40. Fisher v. Town of Nags Head, 220 N.C. App. 478, 725 S.E.2d 99 (2012).

Defendant's notice, as provided to plaintiffs, was sufficient to meet the requirements of G.S. 40A-40 and otherwise did not prejudice plaintiffs due to their ability to file the current action and have a surveyor accurately locate the requested property; the notice properly cited to the statute regarding the condemnation procedure, G.S. 40A-42, and defendant's description of the "easement area" was sufficient for plaintiffs to determine the requested property, or at least for a hired surveyor to locate. Fisher v. Town of Nags Head, 220 N.C. App. 478, 725 S.E.2d 99 (2012).

Applied in Nelson v. Town of Highlands, 159 N.C. App. 393, 583 S.E.2d 313 (2003).

Cited in Yandle v. Mecklenburg County, 85 N.C. App. 382, 355 S.E.2d 216 (1987); New Hanover County Water & Sewer Dist. v. Thompson, 193 N.C. App. 404, 667 S.E.2d 501 (2008); In re J.L.H., 230 N.C. App. 214, 750 S.E.2d 197 (2013).

CASE NOTES

Land Affected by Taking. - As property owners' answers denied that a city had accurately described the lands it sought to condemn by taking, and pursuant to G.S. 40A-41(2) the city's complaint had to sufficiently describe any "land affected by the taking," the owners' pleadings raised this issue and they were thus entitled to an evidentiary hearing under G.S. 40A-47. City of Winston-Salem v. Slate, 185 N.C. App. 33, 647 S.E.2d 643 (2007).

Summary Judgment Proper. - Trial court properly granted summary judgment to a city on property owners' inverse-condemnation claims because a single instance of temporary flooding of the owners' properties without the possibility of recurrence did not constitute a taking for purposes of an inverse-condemnation claim; it could not be said the city's installation of water pipes was intended to flood the owners' properties or that the flooding was a foreseeable direct or natural result at the time of the pipes' installation. Wagner v. City of Charlotte, - N.C. App. - , 840 S.E.2d 799 (2020), review denied, appeal dismissed, 846 S.E.2d 277, 2020 N.C. LEXIS 726 (N.C. 2020).

Cited in Yandle v. Mecklenburg County, 85 N.C. App. 382, 355 S.E.2d 216 (1987); Dare County Bd. of Educ. v. Sakaria, 118 N.C. App. 609, 456 S.E.2d 842 (1995); City of Greensboro v. Pearce, 121 N.C. App. 582, 468 S.E.2d 416 (1996); Dare County Bd. of Educ. v. Sakaria, 127 N.C. App. 585, 492 S.E.2d 369 (1997); State v. Coastland Corp., 134 N.C. App. 269, 517 S.E.2d 655 (1999); Concrete Mach. Co. v. City of Hickory, 134 N.C. App. 91, 517 S.E.2d 155 (1999); Piedmont Triad Regional Water Auth. v. Sumner Hills, Inc, 136 N.C. App. 425, 524 S.E.2d 375 (2000); New Hanover County Water & Sewer Dist. v. Thompson, 193 N.C. App. 404, 667 S.E.2d 501 (2008).

CASE NOTES

Vesting of Title. - Under G.S. 40A-42(b)(1) and (2), title to the subject property did not vest in the State immediately upon serving the defendants with notice of the condemnation action. Condemnation of the subject property was for a purpose other than for the purposes listed in G.S. 40A-42(a); thus, under G.S. 40A-42(b)(2), title to the subject property vested with the State upon a failure of the owner to file an answer within the 120-day time period established by G.S. 40A-46. City of Wilson Redevelopment Comm'n v. Boykin, 193 N.C. App. 20, 667 S.E.2d 282 (2008).

Subsection (a) does not grant landowner a statutory right to bring an action for injunctive relief to bar condemnation proceeding and to prevent the title and the right to immediate possession of the property from vesting in defendant when under G.S. 40A-45 landowner has an adequate remedy of law. Tradewinds Campground, Inc. v. Town of Atlantic Beach, 90 N.C. App. 601, 369 S.E.2d 365, cert. denied, 323 N.C. 180, 373 S.E.2d 126 (1988).

Title of Defendants Holding Property as Tenants by Entirety Need Not Be Divested Simultaneously in Condemnation Proceeding. - Where plaintiff acquired title to defendants' interest in certain property owned by them as tenants by the entirety, and even though plaintiff argued such title on separate dates, this Chapter contains no requirement that title to condemned property be divested simultaneously. Town of Chapel Hill v. Burchette, 100 N.C. App. 157, 394 S.E.2d 698 (1990).

Effect of Answer Which Did Not Contest Plaintiff's Power to Condemn. - Where, in condemnation proceeding original answer of defendant property owner contested only amount of compensation due and did not contest power of plaintiff to condemn property, title to defendant's interest vested in plaintiff at that time, and plaintiff's filing of amended complaint did not void defendant's original answer. Town of Chapel Hill v. Burchette, 100 N.C. App. 157, 394 S.E.2d 698 (1990).

Effect of Failure to File Action for Injunctive Relief. - Title to condemned property vested and the county had the right to take immediate possession when they filed the complaint and deposited the estimated just compensation, since the landowners did not file an action for injunctive relief before the condemnation complaint was filed. Scotland County v. Johnson, 131 N.C. App. 765, 509 S.E.2d 213 (1998).

Effect of Landowner's Failure to Request Injunctive Relief at the Condemnation Hearing - Since the landowners had the opportunity to present all affirmative defenses argued in their action for a permanent injunction during the condemnation proceedings, judicial economy counseled against litigating the same issues again. Nelson v. Town of Highlands, 159 N.C. App. 393, 583 S.E.2d 313 (2003).

"Reasonable Diligence". - In an inverse condemnation suit where plaintiff's advertisement sign was torn down by defendant city, plaintiff's allegation in the complaint that defendant city failed to exercise reasonable diligence to discover plaintiff's interest and that plaintiff's sign was prominently constructed upon the property creates an issue of fact as to whether defendant city exercised reasonable diligence. Schloss Outdoor Adv. Co. v. City of Charlotte, 50 N.C. App. 150, 272 S.E.2d 920 (1980), decided under prior law.

Public Trust Doctrine Not Violated. - Defendant did not violate the public trust doctrine by asserting its rights of eminent domain as bequeathed to it by the State legislature because the State granted defendant the authority to assert its eminent domain powers over certain parts of plaintiffs' property for the purpose of the project. Fisher v. Town of Nags Head, 220 N.C. App. 478, 725 S.E.2d 99 (2012).

Notice Requirement Satisfied. - Defendant's notice, as provided to plaintiffs, was sufficient to meet the requirements of G.S. 40A-40 and otherwise did not prejudice plaintiffs due to their ability to file the current action and have a surveyor accurately locate the requested property; the notice properly cited to the statute regarding the condemnation procedure, G.S. 40A-42, and defendant's description of the "easement area" was sufficient for plaintiffs to determine the requested property, or at least for a hired surveyor to locate. Fisher v. Town of Nags Head, 220 N.C. App. 478, 725 S.E.2d 99 (2012).

Defendant's decision to estimate that no compensation was required did not violate plaintiffs' constitutional rights requiring just compensation because defendant adequately estimated that the benefit received by the project was sufficient compensation, and the issue of whether that was reasonable was more properly left for the condemnation hearing; defendant's estimate of no compensation adequately satisfied the notice requirement of G.S. 40A-40. Fisher v. Town of Nags Head, 220 N.C. App. 478, 725 S.E.2d 99 (2012).

Impact Fees Not Authorized. - Public utility authority and a county were not authorized to assess sewer and water impact fees against developers because, inter alia, another entity provided such service to the developers and that entity's property was in actual use and needed to run the entity's business could not be condemned. Point South Props., LLC v. Cape Fear Pub. Util. Auth., 243 N.C. App. 508, 778 S.E.2d 284 (2015), overruled in part by Quality Built Homes Inc. v. Town of Carthage, 371 N.C. 60, 813 S.E.2d 218, 2018 N.C. LEXIS 325 (2018).

Cited in UNCC Properties, Inc. v. Greene, 111 N.C. App. 391, 432 S.E.2d 699 (1993); Dare County Bd. of Educ. v. Sakaria, 127 N.C. App. 585, 492 S.E.2d 369 (1997); Piedmont Triad Reg'l Water Auth. v. Lamb, 150 N.C. App. 594, 564 S.E.2d 71, cert. denied, 356 N.C. 166, 568 S.E.2d 608 (2002).

CASE NOTES

Cited in Piedmont Triad Regional Water Auth. v. Sumner Hills, Inc, 136 N.C. App. 425, 524 S.E.2d 375 (2000); New Hanover County Water & Sewer Dist. v. Thompson, 193 N.C. App. 404, 667 S.E.2d 501 (2008).

CASE NOTES

G.S. 40A-42(a) does not grant landowner a statutory right to bring an action for injunctive relief to bar condemnation proceeding and to prevent the title and the right to immediate possession of the property from vesting in defendant when under this section landowner has an adequate remedy of law. Tradewinds Campground, Inc. v. Town of Atlantic Beach, 90 N.C. App. 601, 369 S.E.2d 365, cert. denied, 323 N.C. 180, 373 S.E.2d 126 (1988).

Property Owners Not Entitled to Injunctive Relief. - As subdivision (a)(3) of this section gave owners an opportunity to raise in court the issue of pending voluntary annexation proceeding, they had an adequate remedy at law and were not entitled to injunctive relief granted by the trial court, enjoining county from proceeding with condemnation proceeding. Yandle v. Mecklenburg County, 85 N.C. App. 382, 355 S.E.2d 216, cert. denied, 320 N.C. 798, 361 S.E.2d 91 (1987).

Property Owners Not Entitled to Evidentiary Hearing. - Pursuant to G.S. 40A-45, in eminent domain proceedings, plats are not to be filed until after the pleadings are closed and, in any event, no earlier than six months after the initiation of an eminent domain action; therefore, property owners who disputed the plats were not entitled to an evidentiary hearing on this issue under G.S. 40A-47. City of Winston-Salem v. Slate, 185 N.C. App. 33, 647 S.E.2d 643 (2007).

Landowner's Failure to Seek Injunction at Condemnation Hearing - Since the landowners had the opportunity to present all affirmative defenses argued in their action for a permanent injunction during the condemnation proceedings, judicial economy counseled against litigating the same issues again. Nelson v. Town of Highlands, 159 N.C. App. 393, 583 S.E.2d 313 (2003).

CASE NOTES

Failure to File Answer Within 120 Days. - Trial court did not err in awarding final judgment for a county water and sewer district in its condemnation action against a landowner because the trial court's finding that the landowner did not file an answer within 120 days of service of the complaint pursuant to G.S. 40A-46 supported the conclusion of law that $ 12,000 was just compensation for the taking of the landowner's property. New Hanover County Water & Sewer Dist. v. Thompson, 193 N.C. App. 404, 667 S.E.2d 501 (2008).

County water and sewer district did not abuse its power by moving for final judgment as permitted by G.S. 40A-46 after a landowner's motion to continue was granted because the district was not "on notice" that the landowner appeared in the case until after the 120-day time limit had passed; the landowner's only appearance in the trial court before the district filed the motion for final judgment was a motion to continue, which was filed more than 120 days from service of the complaint. New Hanover County Water & Sewer Dist. v. Thompson, 193 N.C. App. 404, 667 S.E.2d 501 (2008).

Procedural Due Process Rights Not Violated. - Application of G.S. 40A-46 in a county water and sewer district's condemnation action did not violate a landowner's procedural due process rights under the United States Constitution because the landowner received ample notice and opportunity to contest the amount of just compensation; the landowner and district engaged in several discussions regarding the district's desire to obtain an easement along the landowner's property, the district sent the landowner a letter notifying him of the amount of just compensation and advising him of his rights under G.S. 40A-40, and the landowner was served with the condemnation complaint and notice of deposit. New Hanover County Water & Sewer Dist. v. Thompson, 193 N.C. App. 404, 667 S.E.2d 501 (2008).

Answer Was Timely Filed. - Pursuant to G.S. 40A-46 and G.S. 1A-1, N.C. R. Civ. P. 55(d), a trial court did not abuse its discretion by granting a condemnee's motion to set aside the entry of default against a second condemnee and deem the second condemnee's answer timely filed. The State was aware that the second condemnee had given the condemnee a power of attorney no later than October 2005, as evidenced by the fact that the State served notice of the condemnation and an amended answer on the second condemnee in care of the condemnee; the State nonetheless waited until the day of trial to seek entry of default against the second condemnee. City of Wilson Redevelopment Comm'n v. Boykin, 193 N.C. App. 20, 667 S.E.2d 282 (2008).

Vesting of Title. - Under G.S. 40A-42(b)(1) and (2), title to the subject property did not vest in the State immediately upon serving the defendants with notice of the condemnation action. Condemnation of the subject property was for a purpose other than for the purposes listed in G.S. 40A-42(a); thus, under G.S. 40A-42(b)(2), title to the subject property vested with the State upon a failure of the owner to file an answer within the 120-day time period established by G.S. 40A-46. City of Wilson Redevelopment Comm'n v. Boykin, 193 N.C. App. 20, 667 S.E.2d 282 (2008).

Applied in Town of Chapel Hill v. Burchette, 100 N.C. App. 157, 394 S.E.2d 698 (1990).

Cited in Dare County Bd. of Educ. v. Sakaria, 127 N.C. App. 585, 492 S.E.2d 369 (1997).

CASE NOTES

Public Trust Rights. - It was error to grant a town judgment notwithstanding a verdict in a condemnation case on a theory that the public trust doctrine made the taking noncompensable because (1) the theory was not raised on directed verdict, (2) the sua sponte order was entered months after final judgment, and (3) the town was estopped from asserting the town possessed rights taken as the town's complaint said the town did not, the town did not raise the issue at an "all other issues" hearing, at which the town disavowed the public trust doctrine, the town did not immediately appeal a vital ruling that the town condemned the property, and landowners introduced a scintilla of supporting evidence. Town of Nags Head v. Richardson, 260 N.C. App. 325, 817 S.E.2d 874 (2018), aff'd, 372 N.C. 349, 828 S.E.2d 154, 2019 N.C. LEXIS 523 (2019).

A municipality is solely liable for the damages that inevitably or necessarily flow from the construction of an improvement in keeping with the design of the condemnor, and contract provisions which require that work be accomplished upon public property or upon private property for which the city holds an easement do not alter the city's liability for such damages. City of Winston-Salem v. Ferrell, 79 N.C. App. 103, 338 S.E.2d 794 (1986).

Evidentiary Hearing Improper for Eminent Domain Proceedings. - Pursuant to G.S. 40A-45, in eminent domain proceedings, plats are not to be filed until after the pleadings are closed and, in any event, no earlier than six months after the initiation of an eminent domain action; therefore, property owners who disputed the plats were not entitled to an evidentiary hearing on this issue under G.S. 40A-47. City of Winston-Salem v. Slate, 185 N.C. App. 33, 647 S.E.2d 643 (2007).

As property owners' answers denied that a city had accurately described the lands it sought to condemn by taking, and pursuant to G.S. 40A-41(2) the city's complaint had to sufficiently describe any "land affected by the taking," the owners' pleadings raised this issue and they were thus entitled to an evidentiary hearing under G.S. 40A-47. City of Winston-Salem v. Slate, 185 N.C. App. 33, 647 S.E.2d 643 (2007).

Property Owners Entitled to Evidentiary Hearing. - Property owners were harmed by the trial court's error in refusing to grant them an evidentiary hearing under G.S. 40A-47 as to the proper description of land a city sought to condemn, because their offer of proof indicated that they would have offered evidence that they used their property "as a single economic unit" in conjunction with one another; such evidence might have been sufficient to establish "unity of use" affecting the valuation of the property under G.S. 40A-67. City of Winston-Salem v. Slate, 185 N.C. App. 33, 647 S.E.2d 643 (2007).

Pretrial Determination of Ownership Not Required. - G.S. 40A-47 neither requires that a determination of ownership must always be made before trial, nor otherwise dictates the manner or time for resolution of such issues. City of Wilson Redevelopment Comm'n v. Boykin, 193 N.C. App. 20, 667 S.E.2d 282 (2008).

Trial court did not err by denying the State's motion for a pretrial determination of the respective ownership interests of the claimants to the subject property. G.S. 40A-47 neither required that a determination of ownership always had to be made before trial, nor otherwise dictated the manner or time for resolution of such issues. City of Wilson Redevelopment Comm'n v. Boykin, 193 N.C. App. 20, 667 S.E.2d 282 (2008).

Damages to land outside city's easements which inevitably or necessarily flow from the construction of the outfall result in an appropriation of land for public use. Such damages are embraced within the just compensation to which defendant landowners are entitled. City of Winston-Salem v. Ferrell, 79 N.C. App. 103, 338 S.E.2d 794 (1986).

Review of Condemnation Decision. - This section authorized the trial court to conduct a de novo review of the condemnation decision of a city redevelopment commission. Redevelopment Comm'n v. Agapion, 129 N.C. App. 346, 499 S.E.2d 474 (1998).

Court of appeals reversed the merits of a lessee's appeal of an order entered in favor of a county in its action to condemn the lessee's leasehold interest in mall property because the order, which determined issues other than damages in a condemnation proceeding, affected a substantial rights; order did not dispose of the entire case, as the issue of damages remains outstanding, but the issues on appeal directly involved vital preliminary issues of the length of the lessee's leasehold interest and the construction of the lease taken by the county, which was crucial in determining constitutionally mandated just compensation. Mecklenburg County v. Simply Fashion Stores, Ltd., 208 N.C. App. 664, 704 S.E.2d 48 (2010).

Expansion of sewer service constituted an action for the public use, and a city validly exercised its power of eminent domain to condemn a sewer easement over land because the easement area would be available to the public at large; using the eminent domain power to connect the city's property to the sewer pump station under the owner's property benefited the public because there was no sewer access on the city's property, and extending the sewer lines would allow the development of the land. City of Asheville v. Resurgence Dev. Co., LLC, 230 N.C. App. 80, 748 S.E.2d 751 (2013).

City validly exercised its power of eminent domain to condemn a sewer easement over an owner's land because the development of affordable housing for the area was the predominant interest at stake. City of Asheville v. Resurgence Dev. Co., LLC, 230 N.C. App. 80, 748 S.E.2d 751 (2013).

Town's condemnation action was properly dismissed because property owners showed the action served no public benefit, as (1) the action would not "open" a street, since the street had not been closed, as access to the street was never blocked, and other portions of the street were not public, especially when the property was at the end of a dead-end street, (2) condemnation would not provide neighbors' access to land, utility service provider access, fire fighters' access to water, or general community interconnectedness, and (3) the evidence showed the town was motivated by considerations irrelevant to the public benefit. Town of Matthews v. Wright, 240 N.C. App. 584, 771 S.E.2d 328 (2015).

Trial court's order was interlocutory because it did not dispose of all of the issues in property owners' action alleging inverse condemnation case, and the trial court specifically did not determine the issue of damages; however, because the order was issued pursuant to the statute and addressed the area taken by the city, the order affected a substantial right and was properly before the court of appeals. Wilkie v. City of Boiling Spring Lakes, 251 N.C. App. 514, 796 S.E.2d 57 (2016), appeal dismissed, 798 S.E.2d 525, 2017 N.C. LEXIS 281 (N.C. 2017), rev'd on other grounds, 809 S.E.2d 853, 2018 N.C. LEXIS 67 (2018).

Denial of Jury Trial on Issue of Ownership Upheld. - In special proceedings for condemnation of land for an airport, trial judge did not err in denying motion for a jury trial on the issue of ownership of the property, as the issue of ownership was not triable by a jury of right, and moreover, appellant did not demand a trial by jury in writing within the prescribed time. Raleigh-Durham Airport Auth. v. Howard, 88 N.C. App. 207, 363 S.E.2d 184 (1987), cert. denied, 322 N.C. 113, 367 S.E.2d 916 (1988).

Applied in Scotland County v. Johnson, 131 N.C. App. 765, 509 S.E.2d 213 (1998); Concrete Mach. Co. v. City of Hickory, 134 N.C. App. 91, 517 S.E.2d 155 (1999); Piedmont Triad Reg'l Water Auth. v. Unger, 154 N.C. App. 589, 572 S.E.2d 832 (2002), cert. denied, 357 N.C. 165, 580 S.E.2d 695 (2003); L&S Water Power, Inc. v. Piedmont Triad Reg'l Water Auth., 211 N.C. App. 148, 712 S.E.2d 146 (2011).

Cited in City of Winston-Salem v. Ferrell, 79 N.C. App. 103, 338 S.E.2d 794 (1986); Smith v. City of Charlotte, 79 N.C. App. 517, 339 S.E.2d 844 (1986); Piedmont Triad Regional Water Auth. v. Sumner Hills, Inc, 136 N.C. App. 425, 524 S.E.2d 375 (2000); Frances L. Austin Family L.P. v. City of High Point, 177 N.C. App. 753, 630 S.E.2d 37 (2006); Catawba County v. Wyant, 197 N.C. App. 533, 677 S.E.2d 567 (2009); Cape Fear Pub. Util. Auth. v. Costa, 205 N.C. App. 589, 697 S.E.2d 338 (2010); Town of Midland v. Morris, 209 N.C. App. 208, 704 S.E.2d 329, review denied, 365 N.C. 198, 710 S.E.2d 3, 2011 N.C. LEXIS 245, dismissed and review denied, 365 N.C. 198, 710 S.E.2d 1, 2011 N.C. LEXIS 265 (2011). Town of Midland v. Wayne, 229 N.C. App. 481, 748 S.E.2d 35 (2013), dismissed 367 N.C. 292, 753 S.E.2d 665, 2014 N.C. LEXIS 29 (2014).

CASE NOTES

Cited in Smith v. City of Charlotte, 79 N.C. App. 517, 339 S.E.2d 844 (1986); Cape Fear Pub. Util. Auth. v. Costa, 205 N.C. App. 589, 697 S.E.2d 338 (2010).

CASE NOTES

Statute Is Remedial. - When viewed in any realistic sense the statute is intended to have a remedial effect by codifying any remedies that might otherwise be available to claimants and should be treated as a remedial statute. Wilkie v. City of Boiling Spring Lakes, 370 N.C. 540, 809 S.E.2d 853 (2018).

Construction With G.S. 40A-3. - Reference to G.S 40A-3(b) and (c) in G.S. 40A-51(a) makes most sense as a simple delineation of the range of entities against whom a statutory inverse condemnation action can be brought rather than a description of the motivations underlying the acts or omissions necessary for the existence of a claim; the plain meaning of the reference to G.S. 40A-3(b) and (c) in G.S. 40A-51(a) is to specify the entities against whom a statutory inverse condemnation claim can be asserted. Wilkie v. City of Boiling Spring Lakes, 370 N.C. 540, 809 S.E.2d 853 (2018).

References to G.S. 40A-3(b) and (c) contained in G.S. 40A-51 serve to simply delineate the universe of entities against whom a statutory inverse condemnation action can be brought pursuant to G.S. 40A-51 rather than limiting the acts or omissions that must be shown in order to permit the maintenance of the statutory inverse condemnation action authorized by G.S. 40A-51. Wilkie v. City of Boiling Spring Lakes, 370 N.C. 540, 809 S.E.2d 853 (2018).

An inverse condemnation remedy is now provided in this jurisdiction by this section. City of Winston-Salem v. Ferrell, 79 N.C. App. 103, 338 S.E.2d 794 (1986).

Inverse condemnation is simply a device to force a governmental body to exercise its power of condemnation, even though it may have no desire to do so. It allows a property owner to obtain compensation for a taking in fact, even though no formal exercise of the taking power has occurred. Smith v. City of Charlotte, 79 N.C. App. 517, 339 S.E.2d 844 (1986).

Exhaustion Of Administrative Remedies. - Trial court properly concluded that property owners had no administrative remedies to exhaust before bringing their inverse condemnation claim against a public water authority because the owners were not required to intervene in the authority's applications for a North Carolina Environmental Management Commission (EMC) certificate or 404 permit since they were not challenging the authority's right to divert water from a river or construct a dam but were asking to be compensated as a result of the reduction of water flow; the EMC certificate only authorized the authority the right to exercise eminent domain by diverting the waters and did not concern the owners' right to compensation. L&S Water Power, Inc. v. Piedmont Triad Reg'l Water Auth., 211 N.C. App. 148, 712 S.E.2d 146 (2011).

What Constitutes a "Project" Under This Section. - Although defendant designated the entire widening of the road as a "project," where there was evidence that individual sections were also referred to as "projects," because the road was widened in sections by different contractors, and there were beginning and ending points to the widening of each section, these individual sections met the definition of "projects" for purposes of subsection (a). McAdoo v. City of Greensboro, 91 N.C. App. 570, 372 S.E.2d 742 (1988).

Where plaintiffs sued for inverse condemnation by city whose road widening project was composed of many separate projects performed by more than one contractor, the plaintiffs had 24 months from the completion of the individual section of road encroaching upon their property which for purposes of subsection (a) was the "project" involving the taking. McAdoo v. City of Greensboro, 91 N.C. App. 570, 372 S.E.2d 742 (1988).

Applicability of Subsection (c). - Although subsection (c) provides that "nothing in this action shall in any manner affect an owner's common-law right to bring an action in tort for damage to his property," it was not relevant in an inverse condemnation case, since an owner has no common-law right to bring a trespass action against a city. McAdoo v. City of Greensboro, 91 N.C. App. 570, 372 S.E.2d 742 (1988).

Property Taken for Public Use. - Decision to provide a claimant whose property has been taken for a public purpose with a statutory inverse condemnation remedy while depriving a claimant who has suffered the same injury for a non-public purpose of the right to utilize that statutory remedy seems inconsistent with the likely legislative intent; a number of relevant canons of statutory construction provide support for the manner in which the supreme court believes the "plain meaning" of subsection (a) should be understood. Wilkie v. City of Boiling Spring Lakes, 370 N.C. 540, 809 S.E.2d 853 (2018).

Although a condemning entity must establish that a proposed taking will further a public purpose before a condemnation can be authorized, there is no reason why a reciprocal burden to establish the existence of a public purpose should be imposed upon a property owner who has been deprived of his or her property by governmental action taken for a non-public purpose. Wilkie v. City of Boiling Spring Lakes, 370 N.C. 540, 809 S.E.2d 853 (2018).

Court of appeals erred in reversing an order determining that a city's actions resulted in a taking of the owners' property without just compensation because it improperly held that there could be no inverse condemnation when property was not taken for a public use. Wilkie v. City of Boiling Spring Lakes, 370 N.C. 540, 809 S.E.2d 853 (2018).

Defendants' assertion of a counterclaim in condemnation action by city, alleging that property not included therein had been taken, properly placed the inverse condemnation issue before the court. City of Winston-Salem v. Ferrell, 79 N.C. App. 103, 338 S.E.2d 794 (1986).

Remedy for Municipal Airport Overflight. - Private landowners no longer have any private common-law actions for damages in trespass or nuisance in municipal airport overflight cases; their sole remedy is inverse condemnation. Smith v. City of Charlotte, 79 N.C. App. 517, 339 S.E.2d 844 (1986).

This section provided the sole procedure by which plaintiffs could bring an inverse condemnation action involving a taking occurring as a result of the construction and operation of an airport runway. Smith v. City of Charlotte, 79 N.C. App. 517, 339 S.E.2d 844 (1986).

No simple test exists for determining when a taking occurs by aircraft overflights; rather, a particularized judgment of the facts of the individual case is necessary. Thus the date requirement of this section does not impose any stringent standard of specificity. Smith v. City of Charlotte, 79 N.C. App. 517, 339 S.E.2d 844 (1986).

Plaintiffs' allegation of a very general taking by aircraft overflights "within the past two years" failed to allege with reasonable specificity when the alleged appropriation or taking occurred; however, rather than dismissing the complaint altogether, the court should have required plaintiffs to come forward in accordance with defendant's motion for a more definite statement and plead the facts which they possessed, so that the court could then rule on their timeliness and sufficiency. Smith v. City of Charlotte, 79 N.C. App. 517, 339 S.E.2d 844 (1986).

The statutory time begins to run on completion of the project or the taking, whichever is later. Smith v. City of Charlotte, 79 N.C. App. 517, 339 S.E.2d 844 (1986).

The individual section of widened roadway, which constituted the taking by inverse condemnation of plaintiff's property, was not completed until the maintenance period was completed; the statutory period runs from the completion of the "project," which does not necessarily mean it runs from the completion of construction. McAdoo v. City of Greensboro, 91 N.C. App. 570, 372 S.E.2d 742 (1988).

Cause of Action Time Barred. - Billboard owner's cause of action based on an alleged regulatory taking accomplished by enactment of zoning ordinance arose on April 15, 1985, the date the zoning ordinance at issue was enacted and not April 15, 1992, the end of the amortization period when the signs were required to be removed; plaintiff who did not file suit until May 11, 1992, over seven years after the enactment of the zoning ordinance at issue, was barred. Naegele Outdoor Adv., Inc. v. City of Winston-Salem, 340 N.C. 349, 457 S.E.2d 874 (1995).

Limitation Period for Taking Occurring Prior to Enactment of Chapter. - Where plaintiffs' action involving a taking incident to construction of an airport runway accrued in June 1979, and over two years later, in July 1981, new Chapter 40A was enacted, the period between such enactment and the cutoff date under the new limitation, five months and three weeks (July 10, 1981 to January 1, 1982) was not itself so unreasonably short as to deny plaintiffs due process of law, particularly in light of the fact that plaintiffs lived in an area where large numbers of inverse condemnation actions were filed within the statutory period. Smith v. City of Charlotte, 79 N.C. App. 517, 339 S.E.2d 844 (1986).

A municipality is solely liable for the damages that inevitably or necessarily flow from the construction of an improvement in keeping with the design of the condemnor, and contract provisions which require that work be accomplished upon public property or upon private property for which the city holds an easement do not alter the city's liability for such damages. City of Winston-Salem v. Ferrell, 79 N.C. App. 103, 338 S.E.2d 794 (1986).

Damages to land outside city's easements which inevitably or necessarily flow from the construction of the outfall result in an appropriation of land for public use. Such damages are embraced within the just compensation to which defendant landowners are entitled. City of Winston-Salem v. Ferrell, 79 N.C. App. 103, 338 S.E.2d 794 (1986).

Migration of Cases from City Landfill. - Because this section, the inverse condemnation provision, provides a landowner's only remedy for alleged damage in the nature of a "taking," the court granted summary judgment as to multi-family apartment complex developer's state, common-law claims for nuisance, trespass, and negligence based on migration of methane gases from city landfill. Ashley Park Charlotte Assocs. v. City of Charlotte, 827 F. Supp. 1223 (W.D.N.C. 1993).

Strict Liability Action Was Not Precluded. - Developer's strict liability claim based on migration of methane gases from city landfill based on the North Carolina Oil Pollution and Hazardous Substances Control Act of 1978 was not preempted by this section. Ashley Park Charlotte Assocs. v. City of Charlotte, 827 F. Supp. 1223 (W.D.N.C. 1993).

Assessment of Costs. - Where although city filed a Declaration of Taking, it did not include property held to have been inversely condemned, the court's assessment of costs under G.S. 40A-8 was proper. City of Winston-Salem v. Ferrell, 79 N.C. App. 103, 338 S.E.2d 794 (1986).

Negligence Claim Based on Inadequate Storm Drainage Pipe. - Inverse condemnation statute, G.S. 40A-51, did not apply to preempt property owner's negligence claim for damage to her property allegedly caused by the municipality's failure to adequately maintain a storm drainage pipe running under her property, as G.S. 40A-51(c) specifically stated that nothing under the statutory section would affect a property owner's common-law right to bring an action in tort for damage to property. Howell v. City of Lumberton, 144 N.C. App. 695, 548 S.E.2d 835 (2001).

Summary Judgment Proper. - Even if the trial court had considered a property owner's affidavits, summary judgment for a public utility authority on his counterclaims for inverse condemnation and trespass would have been proper, and he had failed to comply with G.S. 40A-51; because the exclusive remedy for failure to compensate for a taking was inverse condemnation under G.S. 40A-51, he had no common-law right to bring a trespass action against the authority, and there was no right to a jury trial on the issue of a taking under G.S. 40A-51. Cape Fear Pub. Util. Auth. v. Costa, 205 N.C. App. 589, 697 S.E.2d 338 (2010).

Trial court properly granted summary judgment to a city on property owners' inverse-condemnation claims because a single instance of temporary flooding of the owners' properties without the possibility of recurrence did not constitute a taking for purposes of an inverse-condemnation claim; it could not be said the city's installation of water pipes was intended to flood the owners' properties or that the flooding was a foreseeable direct or natural result at the time of the pipes' installation. Wagner v. City of Charlotte, - N.C. App. - , 840 S.E.2d 799 (2020), review denied, appeal dismissed, 846 S.E.2d 277, 2020 N.C. LEXIS 726 (N.C. 2020).

Taking Not Found. - When a city paid consideration for a sewer line easement to plaintiffs' predecessor in title, and later abandoned the easement and left a sewer pipe in the ground in question, this did not amount to a taking. The city had paid just compensation to the predecessor in title, and plaintiffs were entitled to nothing more. Frances L. Austin Family L.P. v. City of High Point, 177 N.C. App. 753, 630 S.E.2d 37 (2006).

Applied in City of Raleigh v. Hollingsworth, 96 N.C. App. 260, 385 S.E.2d 513 (1989); Peach v. City of High Point, 199 N.C. App. 359, 683 S.E.2d 717 (2009), review denied, 363 N.C. 806, 691 S.E.2d 15, N.C. LEXIS 69 (2010).

Cited in Yates v. Jamison, 782 F.2d 1182 (4th Cir. 1986); VEPCO v. Tillett, 80 N.C. App. 383, 343 S.E.2d 188 (1986); Batch v. Town of Chapel Hill, 92 N.C. App. 601, 376 S.E.2d 22 (1989); Finch v. City of Durham, 325 N.C. 352, 384 S.E.2d 8 (1989); Naegele Outdoor Adv., Inc. v. City of Durham, 803 F. Supp. 1068 (M.D.N.C. 1992); Guilford County Dep't of Emergency Servs. v. Seaboard Chem. Corp., 114 N.C. App. 1, 441 S.E.2d 177 (1994); Robertson v. City of High Point, 129 N.C. App. 88, 497 S.E.2d 300 (1998); Town of Apex v. Whitehurst, 213 N.C. App. 579, 712 S.E.2d 898 (2011); Town of Midland v. Wayne, 229 N.C. App. 481, 748 S.E.2d 35 (2013), dismissed 367 N.C. 292, 753 S.E.2d 665, 2014 N.C. LEXIS 29 (2014).

CASE NOTES

Date of Taking Defined. - Date of taking is interpreted to mean the date that the condemnor obtains the right of possession of the property involved. Dare County Bd. of Educ. v. Sakaria, 127 N.C. App. 585, 492 S.E.2d 369 (1997).

Date of Taking Term of Art. - The term "date of taking" had acquired legal significance as a term or art for purposes of computation of interest at the time Chapter 40A was enacted and there is no apparent legislative intent to deviate from this accepted common law meaning. Dare County Bd. of Educ. v. Sakaria, 127 N.C. App. 585, 492 S.E.2d 369 (1997).

Trial court erred in awarding 14% interest from the time of entry of judgment until its satisfaction, even though G.S. 24-5(b) might be construed as allowing interest at the legal rate until judgment is satisfied, because this section specifically provides for interest in eminent domain actions during this period at the rate of 6% per annum. Concrete Mach. Co. v. City of Hickory, 134 N.C. App. 91, 517 S.E.2d 155 (1999).

Cited in State v. Shannon, 182 N.C. App. 350, 642 S.E.2d 516 (2007), review denied, 361 N.C. 436, 649 S.E.2d 893 (2007).

CASE NOTES

Recording the Judgment. - In case involving the public taking of land outside easement for sewer lines, court ordered compliance with recordation requirements of this section. Concrete Mach. Co. v. City of Hickory, 134 N.C. App. 91, 517 S.E.2d 155 (1999).

CASE NOTES

Denial of Jury Trial on Issue of Ownership Upheld. - In special proceedings for condemnation of land for an airport, trial judge did not err in denying motion for a jury trial on the issue of ownership of the property, as the issue of ownership was not triable by a jury of right, and moreover, appellant did not demand a trial by jury in writing within the prescribed time. Raleigh-Durham Airport Auth. v. Howard, 88 N.C. App. 207, 363 S.E.2d 184 (1987), cert. denied, 322 N.C. 113, 367 S.E.2d 916 (1988).

Post-Trial Determination of Competing Claims. - G.S. 40A-55 expressly contemplates that the competing claims of condemnees might be decided after determination of the fair market value of a condemned property. The statute allows for post-trial determination of competing claims. City of Wilson Redevelopment Comm'n v. Boykin, 193 N.C. App. 20, 667 S.E.2d 282 (2008).

Cited in In re Lee, 85 N.C. App. 302, 354 S.E.2d 759 (1987).

CASE NOTES

Editor's Note. - Many of the cases below were decided under similar former provisions.

Right of Eminent Domain Subject to Provision for Reasonable Compensation. - The qualification of the right of eminent domain, that compensation should be made for private property taken for public use, is founded on justice and a due regard for basic property rights, and is applied in North Carolina. Bennett v. Winston-Salem Southbound R.R., 170 N.C. 389, 87 S.E. 133 (1915). See also, Johnston v. Rankin, 70 N.C. 550 (1874); Phillips v. Postal Tel. Cable Co., 130 N.C. 513, 41 S.E. 1022, rev'd on other grounds on rehearing, 131 N.C. 225, 42 S.E. 587 (1902).

The right to exercise the power of eminent domain is always subject to the principle that there must be definite and adequate provision made for reasonable compensation to the owner of the property proposed to be taken. Town of Mount Olive v. Cowan, 235 N.C. 259, 69 S.E.2d 525 (1952).

Duty of Condemnor to Pay Just Compensation. - When the right of condemnation is exercised, a duty is imposed on the condemnor to pay just compensation for the property taken. VEPCO v. King, 259 N.C. 219, 130 S.E.2d 318 (1963).

Right of Owner to Full and Ample Compensation. - A citizen must surrender his private property in obedience to the necessities of a growing and progressive state, but in doing so he is entitled to be paid full, fair and ample compensation, to be reduced only by such benefits as are special and peculiar to his land. He has the right to have and enjoy the general benefits which are common to him and to his neighbors, without being required to pay therefor merely because it so happens that the use of his land is necessary for the needs of the public. Stamey v. Burnsville, 189 N.C. 39, 126 S.E. 103 (1925).

Noncompensable Business Losses of Lessee. - Where an entire leasehold estate is taken in the exercise of the power of eminent domain, the lessee is not entitled to recover compensation for the incidental loss attributable to the costs of removing his stock of merchandise, fixtures and other personal property, the interruption or loss of business, or the loss of customers or good will, incident to the necessity of moving to a new location, since such losses are not property and are noncompensable. Williams v. State Hwy. Comm'n, 252 N.C. 141, 113 S.E.2d 263 (1960); Zourzoukis v. State Hwy. Comm'n, 252 N.C. 149, 113 S.E.2d 269 (1960).

Real Property Valuations for Ad Valorem Purposes Admissible. - Evidence of real property valuations made by the county for ad valorem tax purposes are admissible against the county, in an eminent domain proceeding, as an admission of a party opponent. Craven County v. Hall, 87 N.C. App. 256, 360 S.E.2d 479 (1987), cert. denied, 321 N.C. 471, 364 S.E.2d 919 (1988).

Cited in Smith v. City of Charlotte, 79 N.C. App. 517, 339 S.E.2d 844 (1986); Cape Fear Pub. Util. Auth. v. Costa, 205 N.C. App. 589, 697 S.E.2d 338 (2010).

CASE NOTES

Editor's Note. - Some of the cases below were decided under similar former provisions.

Measure of Damages. - The measure of damages or just compensation to be paid to the landowner is the difference in the fair market value of the land immediately before the taking and the fair market value immediately after the taking of the easement. Duke Power Co. v. Ribet, 25 N.C. App. 87, 212 S.E.2d 182 (1975).

Valuation of Land as of Date of Taking. - For the purpose of determining the sum to be paid as compensation for land taken under the right of eminent domain, the value of the land taken should be ascertained as of the date of the taking, which is when the proceeding is begun. City of Kings Mountain v. Goforth, 283 N.C. 316, 196 S.E.2d 231 (1973).

In determining the fair market value of property taken in condemnation, it is generally regarded as competent to show the value of the property within a reasonable time before and/or after the taking as bearing upon its value at the time of the appropriation. Craven County v. Hall, 87 N.C. App. 256, 360 S.E.2d 479 (1987), cert. denied, 321 N.C. 471, 364 S.E.2d 919 (1988).

Price of Reconveyed Property. - Section 136-19, when read consistently with this section and G.S. 40A-65, as well as with the Fifth Amendment to the U.S. Const., dictates that the State not profit from overreaching seizures by eminent domain; therefore, Department of Transportation (DOT) was required to reconvey property acquired by eminent domain but unused by the DOT to the assigns of the original owner at the original purchase price, plus interest at the legal rate compounded annually. Ferrell v. DOT, 104 N.C. App. 42, 407 S.E.2d 601 (1991), aff'd, 334 N.C. 650, 435 S.E.2d 309 (1993).

Corporation damaging adjacent property while constructing a railroad is liable in damages just as a private individual would be. Staton v. Norfolk & C.R.R., 111 N.C. 278, 16 S.E. 181 (1892).

Right to Cut Trees Cannot Be Taken without Compensation. - Where the right to cut trees was not acquired when right-of-way was condemned, and was not paid for in the first proceeding, the right could not in a subsequent proceeding be taken without compensation. Weyerhaeuser Co. v. Carolina Power & Light Co., 257 N.C. 717, 127 S.E.2d 539 (1962).

Compensation for the right to cut trees should be made in a lump sum under the established rule for measuring damages in condemnation proceedings. Weyerhaeuser Co. v. Carolina Power & Light Co., 257 N.C. 717, 127 S.E.2d 539 (1962).

Owner Held Entitled to Compensatory Damages. - Landowner was entitled to compensatory damages for the cutting of crossties on land not included in the right-of-way, and the negligent filling of ditches instead of building bridges over them in constructing the roads necessary to remove the timber, and for breaking down fences. Waters v. Greenleaf-Johnson Lumber Co., 115 N.C. 648, 20 S.E. 718 (1894).

Cited in Greensboro-High Point Airport Auth. v. Irvin, 306 N.C. 263, 293 S.E.2d 149 (1982); Ferrell v. DOT, 334 N.C. 650, 435 S.E.2d 309 (1993); Dare County Bd. of Educ. v. Sakaria, 127 N.C. App. 585, 492 S.E.2d 369 (1997).

CASE NOTES

Editor's Note. - Some of the cases below were decided under similar former provisions.

Landowner's Son Competent to Give Opinion of Land Value. - The son of a landowner who had exhibited a great deal of familiarity with the property, as well as neighboring properties, and was familiar with the value of these properties was competent to give an opinion as to the land value. Craven County v. Hall, 87 N.C. App. 256, 360 S.E.2d 479 (1987), cert. denied, 321 N.C. 471, 364 S.E.2d 919 (1988).

The sales prices of voluntary sales of property similar in nature, location, and condition to the land being condemned is admissible as evidence of the value of that land if the other sales are not too remote in time. Whether the properties are sufficiently similar to admit such evidence is a question to be determined by the trial judge in his sound discretion, usually after a hearing on the issue conducted out of the presence of the jury. City of Winston-Salem v. Cooper, 315 N.C. 702, 340 S.E.2d 366 (1986).

Evidence of Comparable Sales of Farmland. - Where farmland is condemned as an easement, it is not error to exclude evidence of comparable sales nearby if there is a large difference in the size of the tracts, despite little difference in zoning and water availability. Duke Power Co. v. Smith, 54 N.C. App. 214, 282 S.E.2d 564 (1981).

Evidence Sufficient for Jury Question. - Where defendant landowner's evidence consisted of the before and after values of the tract that sewer line easement affected, there was sufficient evidence to go to the jury. Guilford County v. Kane, 114 N.C. App. 243, 441 S.E.2d 556 (1994).

Instruction as to Sentimental Value. - In an action in eminent domain, the judge properly advised the jury foreman the sentimental value should not be considered in determining the value of just compensation. Carolina Power & Light Co. v. Merritt, 50 N.C. App. 269, 273 S.E.2d 727, cert. denied, 302 N.C. 220, 276 S.E.2d 914 (1981), decided under former Chapter 40.

Agreement to Furnish Fire Protection as Compensation. - A municipality has the authority to compensate landowners for a water and sewer line easement across a tract of land located outside the municipal limits by an agreement to furnish fire protection for any buildings located on such tract, and such agreement does not constitute a waiver of the municipality's governmental immunity with respect to torts committed in the maintenance or operation of its fire department. Valevais v. City of New Bern, 10 N.C. App. 215, 178 S.E.2d 109 (1970).

When a town sought to have property valued free of any claims which it could assert, the town could not, after the value had been fixed, claim any part of the award. Town of Hertford v. Harris, 263 N.C. 776, 140 S.E.2d 420 (1965).

Measure of compensation to one who loses right to remove sand and gravel from the property of another, when that right has never been exercised and the sand and gravel remain in the ground untouched, is the fair market value of the sand and gravel in place. In re Lee, 85 N.C. App. 302, 354 S.E.2d 759, cert. denied, 320 N.C. 513, 358 S.E.2d 520 (1987).

Where petitioner which had the contractual right to remove sand and gravel from property which was condemned, failed to show by credible and convincing evidence the value of its interest in the condemned land, petitioner was entitled to nominal damages only. In re Lee, 85 N.C. App. 302, 354 S.E.2d 759, cert. denied, 320 N.C. 513, 358 S.E.2d 520 (1987).

Testimony Regarding the Separate Valuation for Timber. - The court refused to adopt the "unit rule" of valuation and held that testimony regarding the separate valuation for timber found on condemned property was properly admitted into evidence; "preventing an appraiser witness from disclosing [information regarding enhancing components] seems to be at odds with the practice of real estate appraisal, and prevents an accurate reflection for the jury of the fair market value of the condemned property." City of Hillsborough v. Hughes, 140 N.C. App. 714, 538 S.E.2d 586 (2000).

Effect of Condemnation on Lost Rental Value. - Testimony by owner of rental property that the value of property remaining after taking would be diminished was permissible, and instruction that testimony was competent only on the question of impact on fair market value, and not lowered or lost rents, was adequate. City of Fayetteville v. M.M. Fowler, Inc., 122 N.C. App. 478, 470 S.E.2d 343 (1996).

This Section Compared with G.S. 136-112(1). - Section 136-112(1) violates the equal protection rights of the property owners who have part of a tract of land condemned for highway purposes because they are denied the just compensation received by other property owners also subjected to condemnation proceedings. A property owner will receive just compensation if the taking is imposed under this section, even though the same property owner is not entitled to compensation which is just if the imposed taking is under G.S. 136-112(1). A property owner receiving compensation under G.S. 136-112(2) is not subjected to an offset for general benefits while a property owner under G.S. 136-112(1) is. DOT v. Rowe, 138 N.C. App. 329, 531 S.E.2d 836 (2000).

G.S. 40A-64 Inapplicable. - Trial court did not err in awarding final judgment for a county water and sewer district in its condemnation action against a landowner because the trial court's finding that the landowner did not file an answer within 120 days of service of the complaint pursuant to G.S. 40A-46 supported the conclusion of law that $ 12,000 was just compensation for the taking of the landowner's property; the statutory procedure set forth in G.S. 40A-64 to determine just compensation is not applicable where a defendant waives the issue of just compensation by failing to file an answer within the time limits proscribed by G.S. 40A-46. New Hanover County Water & Sewer Dist. v. Thompson, 193 N.C. App. 404, 667 S.E.2d 501 (2008).

Owner Not Entitled To Additional Compensation. - Owner was not entitled to additional compensation, beyond the diminution in value as provided in the statute, based on the loss of the right to develop property in a certain way; therefore, where a town filed a complaint that would entitle the owner to compensation based on the diminution in value of the property caused by the taking of an easement, the owner could not maintain an inverse condemnation action seeking additional damages resulting in the loss of its vested rights. Town of Midland v. Wayne, 229 N.C. App. 481, 748 S.E.2d 35 (2013), dismissed 367 N.C. 292, 753 S.E.2d 665, 2014 N.C. LEXIS 29 (2014).

Incompetent Valuation Testimony. - It was error to admit landowners' expert's valuation testimony in a condemnation proceeding because the testimony was not based on a reliable valuation method. Town of Nags Head v. Richardson, 260 N.C. App. 325, 817 S.E.2d 874 (2018), aff'd, 372 N.C. 349, 828 S.E.2d 154, 2019 N.C. LEXIS 523 (2019).

Applied in City of Wilson Redevelopment Comm'n v. Boykin, 193 N.C. App. 20, 667 S.E.2d 282 (2008).

Cited in Yates v. Jamison, 782 F.2d 1182 (4th Cir. 1986); City of Durham v. Woo, 129 N.C. App. 183, 497 S.E.2d 457, cert. denied, 348 N.C. 496, 518 S.E.2d 380 (1998); Progress Energy Carolinas, Inc. v. Strickland, 200 N.C. App. 600, 685 S.E.2d 521 (2009).

CASE NOTES

Price of Reconveyed Property. - G.S. 136-19, when read consistently with G.S. 40A-63 and this section, as well as with the Fifth Amendment to the U.S. Const., dictates that the State not profit from overreaching seizures by eminent domain; therefore, Department of Transportation (DOT) was required to reconvey property acquired by eminent domain but unused by the DOT to the assigns of the original owner at the original purchase price, plus interest at the legal rate compounded annually. Ferrell v. DOT, 104 N.C. App. 42, 407 S.E.2d 601 (1991), aff'd, 334 N.C. 650, 435 S.E.2d 309 (1993).

Property Valuation. - Trial court did not err in ruling for a county in its suit against a lessee to condemn its leasehold interest in mall property because the county had the right to terminate the lease pursuant to the lease; scope of the project rule in G.S. 40A-65(a) operated to require that the property be valued as retail space, rather than government office space, which was the use intended by the county, and the lessee's attempt to extend the application of the rule to strike a provision from a contract that it negotiated, to which it agreed, and which it signed, was beyond the parameters of the scope of the project rule. Mecklenburg County v. Simply Fashion Stores, Ltd., 208 N.C. App. 664, 704 S.E.2d 48 (2010).

Evidence of Highest and Best Use as If Not Under "Cloud of Condemnation" Was Proper. - In a condemnation action by an airport authority, the testimony of the condemnee's expert witness as to the property's highest and best use as if it had not been under a "cloud of condemnation" was proper. Since a property owner cannot capitalize on any increase in the property's value due to the reasonable likelihood that it will be acquired, the condemnor likewise cannot take advantage of any resulting decrease in the property due to the threat of condemnation. Raleigh-Durham Airport Auth. v. King, 75 N.C. App. 57, 330 S.E.2d 622 (1985).

Effect of Municipal Ordinance. - Fact that the value of condemned property was decreased by an ordinance passed by an entity that was different from the entity that sought to condemn the property did not preclude the application of G.S. 40A-65, preventing the use of the decreased value as the property's value for condemnation purposes, where the ordinance decreasing the property's value was caused by the purpose for which the property was condemned. Piedmont Triad Reg'l Water Auth. v. Unger, 154 N.C. App. 589, 572 S.E.2d 832 (2002), cert. denied, 357 N.C. 165, 580 S.E.2d 695 (2003).

When landowners asserted that a decrease in the value of their property, due its inclusion in a "no-development" zone, pursuant to a county ordinance, was caused by the water development project for which the property was condemned by a water authority, the landowners were not collaterally attacking the ordinance. Piedmont Triad Reg'l Water Auth. v. Unger, 154 N.C. App. 589, 572 S.E.2d 832 (2002), cert. denied, 357 N.C. 165, 580 S.E.2d 695 (2003).

When the value of landowners' property was decreased by its inclusion in a "no-development" zone created pursuant to a county ordinance to protect the watershed for a proposed reservoir, and the water authority subsequently sought to condemn the property, the ordinance causing a decrease in the property's value resulted from the reservoir project; thus, the landowners could introduce evidence of the value of the property before the ordinance was enacted, in the condemnation proceeding. Piedmont Triad Reg'l Water Auth. v. Unger, 154 N.C. App. 589, 572 S.E.2d 832 (2002), cert. denied, 357 N.C. 165, 580 S.E.2d 695 (2003).

Cited in City of Durham v. Woo, 129 N.C. App. 183, 497 S.E.2d 457, cert. denied, 348 N.C. 496, 518 S.E.2d 380 (1998).

CASE NOTES

Applied in Progress Energy Carolinas, Inc. v. Strickland, 181 N.C. App. 610, 640 S.E.2d 856 (2007).

CASE NOTES

Inchoate Dower Interest Sufficient. - A person's inchoate dower interest in his spouse's real property is interest sufficient to constitute an interest and estate in land for purposes of unity of ownership under this section. City of Winston-Salem v. Yarbrough, 117 N.C. App. 340, 451 S.E.2d 358 (1994), cert. denied, 340 N.C. 110, 456 S.E.2d 311 (1995), cert. denied, 340 N.C. 260, 456 S.E.2d 519 (1995).

Land Used as Integrated Economic Unit. - Defendants' tracts of land, which defendants were holding for future development, were "being used as an integrated economic unit," as required under this section. City of Winston-Salem v. Yarbrough, 117 N.C. App. 340, 451 S.E.2d 358 (1994), cert. denied, 340 N.C. 110, 456 S.E.2d 311 (1995), cert. denied, 340 N.C. 260, 456 S.E.2d 519 (1995).

Under G.S. 40A-67, contiguous tracts of land in the same ownership being used as an integrated economic unit are treated as if they were a single tract. DOT v. Roymac P'ship, 158 N.C. App. 403, 581 S.E.2d 770 (2003), appeal dismissed, 358 N.C. 153, 592 S.E.2d 555 (2004).

Property owners were harmed by the trial court's error in refusing to grant them an evidentiary hearing under G.S. 40A-47 as to the proper description of land a city sought to condemn, because their offer of proof indicated that they would have offered evidence that they used their property "as a single economic unit" in conjunction with one another; such evidence might have been sufficient to establish "unity of use" affecting the valuation of the property under G.S. 40A-67. City of Winston-Salem v. Slate, 185 N.C. App. 33, 647 S.E.2d 643 (2007).

Unity of Ownership Required. - Unity of ownership needed to be shown in order to declare separate parcels of land united for condemnation purposes; where two separate corporations owned separate tracts of land, there was no unity of ownership and the tracts were not united for condemnation purposes. DOT v. Airlie Park, Inc., 156 N.C. App. 63, 576 S.E.2d 341, appeal dismissed sub nom., DOT v. Airlie, 357 N.C. 504, 587 S.E.2d 417 (2003).

No Unity of Use Found. - The trial court erred in finding that commercially-dedicated tracts C and D were part of the area affected by the taking where the four tracts (A, B, C, D) were separated by strips of land deeded to a city for streets and where the defendants' use and enjoyment of tracts C and D were not related to their use of tracts A and B, nor related to or affected by the area taken. Normally, lands will not be considered to constitute a single tract for the purpose of determining severance damages and benefits unless there is unity of use. DOT v. Rowe, 138 N.C. App. 329, 531 S.E.2d 836 (2000).

Trial court did not err in finding and concluding that there was no unity of ownership between a property owner's tracts and the tract owned by a separate limited liability company (LLC) because the owner, individually, had no interest in the tract owned by the LLC, but rather, he merely owned an interest in the LLC that which owned the tract. Town of Midland v. Wayne, 229 N.C. App. 481, 748 S.E.2d 35 (2013), dismissed 367 N.C. 292, 753 S.E.2d 665, 2014 N.C. LEXIS 29 (2014).

A partially-completed office park still meets the unity of use requirement. DOT v. Nelson Co., 127 N.C. App. 365, 489 S.E.2d 449 (1997).

Cited in Rutherford Elec. Mbrshp. Corp. v. 130 of Chatham, LLC, 236 N.C. App. 87, 763 S.E.2d 296 (2014).