Kaperonis v. North Carolina State Highway Commission

Denny, C.J. The appellants have set out 45 assignments of error in the record on appeal in this case. It is not practical to undertake to ¡discuss them seriatim. We shall undertake, however, to discuss those questions raised ¡which we deem necessary -to a proper disposition of the appeal. The ¡appellants ¡assign ¡a;s error the ruling of the ¡court below holding that G.S. 136-108 is constitutional and that the ¡plaintiffs were mot entitled to a jury trial in the hearing below. *593 The constitutionality oí this statute is 'attacked on the ground that it authorizes the trial judge to 'hear and determine any issues raised by the pleadings in an action brought pursuant to' the provisions of Chapter 136, Article 9, of our General Statutes governing the taking or condemnation of land by the State Highway Commission other than the issue of damages. After a plat of the land alleged .to. have been taken has been filed ats required by G.S. 136-106 (C), it is provided in G.S. 136-108 as follows: “* " * (T)-he judge, upon motion .and ten (10) days’ notice by either the Highway Commission or the owner, shall, either in or out of team, hear and determine any issue raised by the pleadings other than the issue of damages, including, if controverted, questions of necessary and proper parties, title to the land, interest taken, and area taken.” Since the decision of this Court in the case of Railroad v. Davis (1837), 19 N.C. 451, it has been universally held in this jurisdiction that private property may be taken for a public purpose without the intervention of a jury. Furthermore, compensation need not precede or be made contemporaneous with the taking, but the amount of damages may be determined 'Subsequent -to the taking. Ruffin, C.J., speaking for the Court, said: “* ":i (T)he case of Smith v. Campbell, 10 N.C. 590, is -a 'decision that is not a eontrovensy ‘respecting property,’ within the sense of the Bill of Rights. But the remaining words of the clause yet more clearly exclude this case from its operation. ‘The ancient mode of trial by jury,’ iis the consecrated institution. This expression has a technical, peculiar, and well understood sense. It doies not import that every legal controversy is to be submitted to and determined by a jury, but that the trial by jury shall remain as it anciently wias. Causes may yet be determined on demurrer, land that being ’an issue of law 'is determined by the Court. Final judgment may also ¡be taken on default, when the whole demand in certainty is thereby admitted; * * * These are ¡all controversies respecting property in the same sense with the present, .but they are none of them trials or cases for trials by jury. There is no trial of a cause, standing on demurrer or default. Trial refers to a dispute ¡and issue of fact, and not to an issue of law, or inquisition of damages: * * * “The opinion of the Court is, that it was competent to' (sic) the legislature to adopt the .mode it did, for the assessment of the damages to the defendant.” The law at the time the above case was decided 'authorized the appointment of freeholders to assess the damages in a condemnation proceeding, but there was no right of appeal to the Superior Court for a *594 ¡hearing before .a jury with respect to the amount of such damages. That ¡right was'not given, to the landowner until the enactment of Chapter 148 of flhe Public Laws of 1893, noiw codified as G.S. 40-20. In Nichols on Eminent Domain (I960’), 3rd Ed., Yol. I, section 4.105.(1), .at .page 351, et seq., it is said: “Due process does not forbid ■a jury trial, nor does it require a jury .trial. In any discussion of this problem ’consideration must be given to the effect of the Seventh Amendment of the Federal Constitution and its .corresponding provisions in the .several state Constitutions which .preserve the .common law right of .trial by jury. “* * xt had ¡become the practice .in almost all oif the original thirteen states at the time when their Constitutions were .adopted to refer the question of damages from the .construction of ways or drains or mill dams to a 'commission of viewers or appraisers, generally three or five in number. It is .accordingly well settled that the assessment of damages in eminent domain proceedings by a judicial tribunal other than a jury .constitutes due process oif law, and consequently is not a violation of the Fifth Amendment When the taking iis by the United States, or of the Fourteenth Amendment when the talcing is ¡by authority of a state. “The Seventh Amendment to the United States Constitution, in terms, protects .the right to trial -by jury in United States .counts, but it merely ‘preserves’ the right of trial by jury in ‘suit® >at .common, law.’ Condemnation ■proceedings are not suits at common law; moreover, if a right to trial by jury had been given by this amendment, it would have been created, not. preserved, for in this class of cases it did not previously exist. Accordingly, it has been repeatedly held that -when land is taken by .authority of the United States, the damages may be ascertained 'by any impartial tribunal. Similarly, when condemnation proceedings brought under authority of a state statute .are transferred to a United States court because of diversity of citizenship of the parties, a jury trial need not be had in the Federal court unless it was required in the .state in which the proceedings originated.” (Emphasis added.) The foregoing authority, in footnote No.. 26, page 357, states: “It is held in North Carolina that a proceeding to assess damages for the taking of land by eminent domain is not a controversy concerning property within the meaning of the Constitution of North Carolina. Smith v. Campbell, 3 Hawks (N.C.) 590; Raleigh, etc. R.R. Co. v. Davis, 2 Dev. and B (N.C.) 451.” (Emphasis added.) Likewise, in 18 Am. Jur., Eminent Domain, section 337, page 979, it is said: “Trial by jury in eminent domain proceedings is not essential *595 to due process of law. A state may authorize any just .amid reasonable method of determining the amount of compensation for land taken for itlhe public use, without violating the Fourteenth Amendment or the similar provisions of the .state Constitutions. Most of the state Gonsti-tutioms contain some .specific provision in regard to. trial by jury, but none of them require jury -trial in all justiciable controversies that may arise. The usual requirement is that the right to jury trial shall .remain “inviolate,’ or .the idea is expressed in some other phraseology, that no law Shall be enacted cutting off triad by jury in such eases as it was customary to employ it when the Constitution was adopted. As it has always been -customary in almost every state to have the damages in eminent .domain cases determined by three or more .appraisers- or oom-misisdoners without the intervention of a jury <at any stage of the proceedings, -it is held in such states that there is no constitutional right of jury trial in -eminent domain oases.” In the case of R.R. v. Gahagan, 161 N.C. 190, 76 S.E. 696, the .plaintiff sought the condemnation of certain lands owned by the defendant for .a right of way for railroad purposes. The defendant contended he had,the right to -have certain preliminary questions submitted to -a jury and appealed to -this Court from the denial thereof. In writing the opinion, this Court quoted with approval from the case of R.R. v. R.R., 148 N.C. 59, 61 S.E. 683, als follows: “It is manifest that the pleadings, in this condition, do not raise ‘issues of fact,’ requiring the cause to be transferred to the -civil-issue docket, -as required by -section 529, Revisa! (now G.S. 1-174). These preliminary questions are to be decided -by the clerk. If he finds against the petitioner upon them, he dismisses .the proceeding, and, if so- advised, .the petitioner excepts and appeals to the judge, who hears /and decides the appeal. * * * By the statute (1893 chapter 148; Revisa!, sec. 2588 [now G.S. 40-20] it was provided that, in condemnation proceedings by any -railroad or -by .any city or town, ‘any person interested in the land, or the city, town, railroad or other corporation, shall be entitled to have the amount of damages -assessed by the commissioners or jurors heard and determined upon .appeal before a jury of the Superior Court, in .term, if upon the hearing of such appeal a jury trial be demanded.’ This limitation upon the right to demand trial by jury clearly excludes the idea that any mch right is given in respect to the questions of fact to be decided preliminary to the question of damages. In Durham v. Rigsbee, 141 N.C. 128, the question presented upon this exception is discussed by Mr. Justice Brown. Referring to the .allegation that the petitioner has been unable to acquire (the title, and the reason therefor: ‘While this is a necessary .allegation of -the petition, it is not ®n issuable fact for the *596 jury to determine. The judge was right in refusing to- submit it to the jury. Since the 'act of 1893 (Revisa!, sec. 2588 [now G.S. 40-20] the defendants bad a right to demand a jury trial upon, the matter of compensation’.” (Emphasis added.) Abernathy v. R.R., 150 N.C. 97, 63 S.E. 180. In -the case of In re Annexation Ordinances, 253 N.C. 637, 117 S.E. 2d 795, .the petitioners contended that the Act pursuant to. which the annexation ordinances were adopted was unconstitutional for that it denied to them the right of trial by jury in violation of Article I, Section 19, of the Constitution of North Carolina. This Court held: “* * ■>:- iaai¿ requirements 'contained in the Act under consideration being solely a legislative matter, the right of .trial by jury is not guaranteed, land the fact that the General Assembly did not isee fit to .provide .for trial by jury in cases arising under the Act, does not render the Act 'Unconstitutional. “The right to a trial by jury, guaranteed under our Constitution, applies only to cases in. which the prerogative existed at common law, or was procured by statute 'at the time the Constitution wia® .adopted. The right to a trial by jury is not guaranteed in tilro.se ciases where the night and the remedy have -been created by statute since the adoption of the Constitution. Groves v. Ware, 182 N.C. 553, 109 S.E. 568; McInnish v. Bd. of Education, 187 N.C. 494, 122 S.E. 182; Hagler v. Highway Commission, 200 N.C. 733, 158 S.E. 383; Unemployment Comp. Com. v. Willis, 219 N.C. 709, 15 S.E. 2d 4; Belk’s Dept. Store, Inc. v. Guilford County, 222 N.C. 441, 23 S.E. 2d 897; Utilities Commission v. Trucking Co., 223 N.C. 687, 28 S.E. 2d 201. This contention of petitioners is without merit.” We concur in the ruling of the court below in holding that the challenged statute is constitutional. This assignment of error is overruled. The appellants assign -as error the admission in evidence of defendant’s Exhibit “B.” This exhibit was identified as a blueprint of a survey by T. J. Orr, Registered Surveyor, of the property of the T. Frank Estate, dated1 March 1948, and which shows a right of way of 50 feet South of the .center of Wilkinson Boulevard across the northern portion oif plaintiffs’ land. Mrs. T. J. Orr, a witness for the defendant, testified that she is the widow of the late T.'.J. Orr, who died in 1956 and wlm had been a Registered Surveyor engaged in the practice in Charlotte. That her husband had a system for filing the original drawings of surveys that he made. That she examined the files and found the original of such a drawing and that defendant’s Exhibit “B” is a print made from the original drawing which she found in her 'husband’s files — dated March *597 1948. That she was a surveyor herself and had helped in heir ¡husband’s office since 1934; thiat both of them worked together on the filing of his original 'drawings. Bob Pharr, a witness for the plaintiffs, was admitted to be an expert land surveyor. He testified, on 'cross-examination, “That in preparing surveys of Wilkinson Boulevard from time to time, (the witness, when he has shown a right of way on Wilkinson Boulevard, ¡showed a 50-foot might of way on each side of the 'center line; that he was not sure that he -had seen the plat by T. J. Orr of the property of the T. Frank Estate. That defendant’s Exhibit ‘B’ is a plat by T. J. Orr of the property of the T. Frank Estate. That defenidamt’s Exhibit ‘B’ is a plat which fitted the description in the said deed. That ¡said plat showed a highway right of way as 50 feet, going south from .the center line of Wilkinson Boulevard. * *” Ray Rankin, ¡a witness for the plaintiffs, was admitted to he an expert in title examination work. This witness testified, on cross-examination, that he had certified the plaintiffs’ ¡title bo the Citizens Bank for a loan currently existing in favor of that bank. That in making his search, “he found one survey by T. J. Orr, dated September 25, 1954, which in his opinion was a survey of the premises. That the Orr survey showed a 50-foot right of way as measured from a line down Wilkinson Boulevard. That the survey was ¡among several papers in the title office which he used along with two or three, or maybe four other surveys, -furnished 'him by the bank at .the time it requested its title (search. * * * That defendant’s Exhibit ‘B’ is generally a plat of the property described in Deed Book 1313, Page 1 (this is the deed under which plaintiffs ¡claim title to the premises involved), that it showed a right -of way on Wilkinson Boulevard of 50 feet on the south side of the center line, and that it bore a notation ‘property of T. Frank Estate’.” This witness further testified -that in examining .the -title to the plaintiffs’ property he-relied in some degree on a survey made by Fred B. Davis, Registered Surveyor, dated 3 August 1960, and that the Davis survey .also showed- a -right -of way for Wilkinson Boulevard south of the center line in front -of plaintiffs’ property of 50 feet. A map or plat -referred to in a deed becomes a part -of the deed and need not be registered. Collins v. Land Co., 128 N.C. 563, 39 S.E. 21. See also Lantz v. Howell, 181 N.C. 401, 107 S.E. 437. In Kelly v. King, 225 N.C. 709, 36 S.E. 2d 220, it is said: “It seems to have been established by numerous decisions -of this Court that where lots are sold by reference to a recorded plat, the effect of reference to the plat is to incorporate it in the deed -as a part of the de- *598 isc-rip-tion of the land conveyed. Elizabeth City v. Commander, 176 N.C. 26, 96 S.E. 736. As was said in Collins v. Land Co., 128 N.C. 563, 39 S.E. 21, ‘a map or plat referred to in a deed becomes a part of the deed as if it were written thereto.’ Ins. Co. v. Carolina Beach, 216 N.C. 778, 3 S.E. 2d 21; Pearson v. Allen, 151 Mass. 79. ‘Where a deed oon-flainis two descriptions, one by metes and bounds and the other by lot and block according to a certain plat or map, the controlling description is the lot according to the pian, rather than the one by metes and bounds. Nash v. R. R., 67 N.C. 413.’Hayden v. Hayden, 178 N.C. 259, 100 S.E. 515; 130 A.L.R. 643, note.” Therefore, we ¡hoild that when -the plaintiffs’ predecessors in title conveyed the premises involved herein, described by metes and bounds, and /for a more particular description incorporated in said deeds by reference the -blueprint of the survey of T. J. Orr, -as set out -herein, and added that “(®)o much of said property as lies within the bounds of the right of way of Wilkins-on Boulevard i-s -subject .thereto-”; that the right of way of 50 feet .as shown -on said plat was notice to the grantees in said -deeds that -the State Highway Commission claimed said 50-foot right -of way across the land -conveyed. Elizabeth City v. Commander, 176 N.C. 26, 96 S.E. 736. This assignment oí error is overruled. The plaintiffs further assign as error the admission in evidence of the resolution -or ordinance -adopted by the State Highway Commission on 27 October 1926, authorizing the Chairman of the State Highway -Commission to take all necessary legal -steps in -the name of tire 'Commission to- .acquire a 100-foot right of way for Projects 635 and 650, from Charlotte to Gastonia; and the plaintiffs further assign -as error ¡the admission -of -any and all evidence tending to -show that the State Highway Commission let contracts for the construction of what is now known as Wilkinson Boulevard, a.s Project 6503, -and that the Commission- took possession of the right o-f way ais hereinabove set out, showing ©aid right of way to be 100 feet, 50 feet from the -center of the Boulevard to the north and south thereof, -and has had possession .thereof -and maintained said right of way since the completion of said Boulevard in 1928. A copy of the purported resolution or ordinance adopted by the -State Highway Commission on 27 October 1926, -authorizing a 100-foot right of way for what is now Wilkinson B-oulevard between Charlotte -and -Gastonia, was certified by -the Secretary -to the Highway Commission as a -true and correct copy of said resolution, ia-s- recorded in the minutes of th-e State Highway Commission -on the above date. We hold -that the admission in evidence of this resolution was proper. *599 We likewise bold .that 'the evidence given by various engineers and agente of the Sta,te Highway Commission, to the effect that since 1928 the State Highway Commission has occupied and maintained a 100-fooit right of way within which the Wilkinson Boulevard was constructed and that said right of way hais been marked in the manner herein-above set out, was admissible. These ■assignments of error are overruled. The appellants further assign as error the admission in evidence of a duly authenticated photostatic copy of the release executed by T. Frank and Katie Frank on 5 March 1929, defendant’s Exhibit “D.” It appears that the genuineness of the signature of Katie Frank, which appears on the release, was challenged by the plaintiffs but proven by admissible evidence. An identifioaition technician for the Mecklenburg County Police, “an expert as found by the court,” testified that the signature of Katie Frank on the release and her signature on her last will and testament, which was defendant’s Exhibit “C,” were, in the opinion of the witness, made -by one and the same person. G.S. 8-40 provides that handwriting may be proved by comparison with other writing proved to the satisfaction of the judge to- be genuine. In re Will of Gatling, 234 N.C. 561, 68 S.E. 2d 301; Newton v. Newton, 182 N.C. 54, 108 S.E. 336. This assignment oif error is also overruled. It is conceded by all parties to this action that tire Old Dowd Road had a right of way of 60 feet, 30 feet from the center of said road. This 60-foot right of way lies wholly within the 100-foot right of way within which Wilkinson Boulevard was constructed adjacent to the property of the plaintiffs. The .width of the right of way on the Old Dowd Road is further confirmed in the case of Long v. Melton, 218 N.C. 94, 10 S.E. 2d 699, where the controversy involved was one of ingress and egress to and from Wilkinson Boulevard over a portion of the right of way of the Old Dowd Road, not included in the right of way of the Wilkinson Boulevard. The Court said: “The new Wilkinson Boulevard is 100 feet wide and paved 40 feet in the center. * * * The 60-foot right of way of the Old Dowd Road overlaps for some distance on the 100-foot right of way of the new Wilkinson Boulevard.” If the 'defendant never obtained any additional right of way from the Franks in 1928, when Project 6503 was constructed, why did T. Frank remove this barbecue lodge from, the 20-foot strip of land now in controversy? Moreover, why did the State Highway Commission pay $850.00 for the release executed on 5 March 1929 by the Franks? Certainly, the State Highway Commission in 1928 had no right to- require the removal of T. Frank’s barbecue lodge if it was not located within *600 the right of wiay claimed and established in connection with the construction of Project 6503 — the Wilkinson Boulevard. Furthermore, if T. Frank and his wife, Katie Frank, or either of them, had instituted' an action to recover additional damages in oon-nectiion with the alleged taking of the additional 20-foot right of way across the Fr/ank’s property in addition to the 30-foot right of way on the Old Dowd Road, such action could mot have been maintained unless instituted within six months after the 'completion of Project 6503, tlhe construction of Wilkinson Boulevard. Chapter' 160 of the Public Laiws of 1923, noiw 'codified, as amended, as G.S. 136-19. Moreover, if such an action had been brought after the Franks signed the release set out hereinabove, such release could have been pleaded in bar of the right to recover any further 'compensation. Laughter v. Highway Commission, 238 N.C. 512, 78 S.E. 2d 252. The appellants -argue that ithe defendant has not established title to the right of way claimed because it has no- deed of easement duly recorded. Be that ias it may, it will -be noted that Chapter 1244 of the Slession Laws of 1959, 'amending G.-S. 47-27, reads as follows: “From and after July 1, 1959 the provisions of this section shall apply to require the State Highway Commission to record as herein provided any deeds of easement, or any other agreanents granting or -conveying an interest in land .which -are -executed on or after July 1, 1959, in the same manner and to the same extent that individuals, firms or corporations are required to record such easements.” It further appears from the evidence -that in the construction of Project 8.16567, begun -on 8 January 1962 and completed on 17 October 1962, that the paving, a® well! as the curb and gutter, was constructed wholly within the 100-foot right of way of the Wilkinson B oulevard. The appellants further assign as .error the action of the court below in taxing the plaintiffs with the casts in this action.. They contend that G-.S. 136-119 requires -that the costs be taxed against the State Highway Commission. We do not concede that the provisions o.f G.S. 136-119 apply when it becomes apparent that there has been no taking of •property from the complaining landowner. We -think the evidence adduced in the trial below clearly shows that the defendant took possession of a 50-fo-ot right of way across the land now owned by the plaintiffs .and that it has continuously asserted its right thereto, ‘and kept said right of way duly marked and has maintained it .at all times since tih-e completion of Project 6503 in 1928, except the plaintiffs or one of itiheir predecessors in title constructed a Perma-Ston-e veneer over the stucco wall -on tire northern edge of plaintiffe’ barbecue lodge building which encroaches on the 50-foot *601 right 'Off way .approximately nine -kucihes, and funtiher comistrueted a sign amid marquee which overhang a walkway 'located wiitihin 50 feet of the center .of Wilkinson Boulevard. However, the existence of these encroachments ¡are insufficient to 'establish (the plaintiffs’ 'contention that the defendant never .claimed -a 50-foot right of way across their property until 20 November 1961, when it notified theise plaintiffs to remove the aforesaid encroachments from .said 50-foot right of way. In our opinion, the remaining -assignments of error present no. prejudicial error that would warrant another hearing. The facts found by the court below are .supported by competent evidence, and the facts ■found are sufficient to support the conelusiomis oif law reached by the trial judge. Therefore, the judgment of the court below is, in all respects, Affirmed.