Greenville City Board of Education v. Evans

MORRIS, Judge. We cannot sustain respondents’ argument that the Board of County Commissioners should have been joined as a necessary party. The motion was made on the ground that no funds may be expended for a school site without its approval. G.S. 115-78(c) (1) provides in pertinent part: “ ... no contract for the purchase of the site shall be executed nor any funds expended therefor without the approval of the board of county commissioners as to the amount to be spent for the site; and in case of a disagreement between a board of education and a board of county commissioners as to the amount to be spent for the site, the procedure provided in G.S. 115-87 shall, insofar as the same may be applicable, be used to settle the disagreement.” Respondents contend that the Board is a necessary party inasmuch as the court cannot order that the land be taken when the taking cannot be accomplished as a matter of law. Vance County v. Royster, 271 N.C. 53, 155 S.E. 2d 790 (1967). The taking—according to respondents—would be impossible as a matter of law if it should appear that the Board did not have on hand sufficient funds to compensate respondents. From the record it appears that petitioner has on hand and in escrow sufficient funds to pay the $80,040 found by the jury to be the fair market value of the land being taken. Respondents assign error to the consolidation of the case sub jwdice and the case involving the condemnation of the contiguous tract of Guy Evans. They contend that they were prejudiced by the fact that petitioner sought to acquire 30.17 acres of “Evans Land” and that different issues were to be submitted [496] to the jury relative to each tract. Under G.S. 1A-1, Rule 42(a), the trial court has the discretion to consolidate “actions involving a common question of law or fact.” “A trial court has the discretionary power, even ex mero motu, to consolidate actions for trial. He may do so even though the actions are instituted by different plaintiffs against a common defendant, or by the same plaintiff against several defendants, when the causes of action grow out of the same transaction and substantially the same defenses are interposed, provided that such consolidation results in no prejudice or harmful complications to either party.” 7 Strong, N. C. Index 2d, Trial, § 8, pp. 265-266. From the record it is apparent that consolidation was proper within the purview of the above rule, and respondents have not been prejudiced thereby. We have carefully reviewed respondents’ assignments of error to various evidentiary rulings of the court and we fail to perceive that they have been prejudiced. Nor do we find prejudice in the court’s sustaining an objection to a question regarding the factors used' in determining the value of the subject property by saying “he could use a Ouija board but that wouldn’t be much help.” This isolated comment, when viewed in conjunction with the entire record, cannot be deemed so disparaging in its effect that it can reasonably be said to have prejudiced respondents. Respondents assign error to the failure of the trial court to instruct the jury that they should consider, in determining the fair market value of the land, the probability of a change in the zoning of that land. We hold that respondents were not entitled to such an instruction, for the only evidence of a potential change in zoning classification was introduced relative to the Guy Evans tract. This fact that a contiguous tract had been considered for rezoning gives rise to no inference that the tract under consideration will be rezoned. If a possible change in a zoning ordinance is purely speculative, it may not be considered in determining the fair market value of the land. Highway Comm. v. Hamilton, 5 N.C. App. 360, 168 S.E. 2d 419 (1969). It is respondents’ position that the court was without jurisdiction to enter judgment since there was no evidence or finding of fact that the parties could not agree on a purchase price for the subject property as required by G.S. 40-11. We cannot sus [497] tain this assignment, since the pretrial order contains a stipulation that the parties have unsuccessfully discussed the possibility of a settlement. Furthermore, the record clearly shows that the petitioner and respondents have been unable to agree on the purchase price. Likewise, we are unable to sustain respondents’ assignment of error to the failure of the trial court to allow interest on the judgment from the date of the taking — contended by respondents to be 16 November 1972, the date of the filing of the petition. It is well established as the law in this State that the landowner is entitled to interest from the date the condemnor acquires the right to possession, not from the date the petition is filed. Light Co. v. Briggs, 268 N.C. 158, 150 S.E. 2d 16 (1966). No error. Judges Campbell and Vaughn concur.