Virginia Electic & Power Co. v. Tillett

EAGLES, Judge. Respondents assign error to the entry of summary judgment for petitioners and state their first argument as follows: “Was the trial court precluded from ruling ‘as a matter of law’ that respondents had no interest in the locus in quo when petitioner had judicially admitted that respondents owned an undivided interest in the locus?" This argument is based on the fact that VEPCO on several different occasions admitted that respondents owned some portion of the 9.565 acre tract of land over which VEPCO was seeking an easement by condemnation for the purpose of constructing its power lines. Though the extent of the respondents’ interest is not clear, the admissions are uncontradicted matters of record. Citing authority, respondents argue that these admissions are binding on the court and preclude a finding that respondents have no interest in the subject property. Respondents’ second argument hints at a more fundamental error that, in our opinion, controls our disposition of the case. In — 517 — this argument, respondents contend that it was error for the court to determine the ownership of the subject property in the context of a condemnation proceeding. We agree with respondents and further hold that the condemnation action should have been dismissed. This case began as a condemnation proceeding under G.S. Chapter 40A. The judgment from which appeal was taken held that title to the entire tract was in VEPCO, the petitioner-con-demnor, and that respondents were owed nothing. How the court, with the apparent consent of the parties, reached the result that it did on the basis of the pleadings that were filed cannot be determined from the record and presents a situation for which our research reveals no precedent. VEPCO contends that the issue of title to the land was tried by consent of the parties. As authority for this contention, it cites G.S. 1A-1, Rule 15(b), which provides, “when issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” VEPCO argues that the consent order signed by the parties and Judge Allsbrook constitutes express consent to convert the condemnation proceeding to an action to quiet title and that, since respondents offered evidence supporting their claims of title, the issue was tried in any event by implied consent. The key fallacy in this argument is that the Rules of Civil Procedure do not apply to condemnation proceedings under G.S. Chapter 40A. Under our law, a condemnation proceeding is a “special proceeding.” Collins v. Highway Commission, 237 N.C. 277, 74 S.E. 2d 709 (1953). Among non-criminal actions, this designation distinguishes condemnation proceedings from ordinary civil actions. See G.S. Sections 1-1 through 1-6. Some jurisdictions hold this to be a distinction without a difference. See, e.g. Avalon East v. Monaghan, 43 Misc. 2d 401, 251 N.Y.S. 2d 290 (1964) (New York Civil Practice Rules). Our Rules of Civil Procedure for the most part are copies of the corresponding federal rules. However, our Rule 1 differs from the federal rule in a way that is significant here. The federal rule reads in pertinent part: — 518 — Scope of Rules These rules govern the procedure in the United States district courts in all suits of a civil nature whether cognizable as cases at law or in equity or in admirality. 28 USCA Rule 1 (Supp. 1984). The corresponding North Carolina rule reads in pertinent part: Scope of Rules These rules shall govern the procedure in the superior and district courts of the State of North Carolina in all actions and proceedings of a civil nature except when a differing procedure is prescribed by statute. G.S. 1A-1, Rule 1. Even where an action is a special proceeding, the Rules of Civil Procedure are in many cases made applicable by G.S. 1-393, which provides, “The Rules of Civil Procedure and the provisions of this chapter on civil procedure are applicable to special proceedings, except as otherwise provided.” Condemnation proceedings by the State, formerly special proceedings, see Collins v. Highway Comm’n, supra, have been held to be civil actions to which the Rules of Civil Procedure apply. Board of Transportation v. Royster, 40 N.C. App. 1, 251 S.E. 2d 921 (1979); Shuford, N.C. Civil Practice and Procedure, Section 1-5(k) (1981 and Supp. 1983). In actions by private condemnors, however, a separate procedure is specified and that procedure is the exclusive means by which private condemnors may condemn land. G.S. 40A-1. Unless specifically noted, neither the Rules of Civil Procedure nor the statutes governing special proceedings, G.S. 1-393 et seq., apply. E.g., G.S. 40A-22 (summons in condemnation proceedings served on parties as in other special proceedings). Pursuant to this procedure, condemnation proceedings are commenced differently from ordinary civil actions, different documents are required to be filed and served, and the filing deadlines are different. Compare, e.g., G.S. 40A-22 (service of process at least 10 days prior to hearing by court) and G.S. 1A-1, Rule 4 (process must be served within 30 days of issuance of summons). An action to quiet title is an ordinary civil action. G.S. 41-10. See, e.g., Boyce v. McMahan, 22 N.C. App. 254, 206 S.E. 2d 496, aff’d, 285 N.C. 730, 208 S.E. 2d 692 (1974). Since no separate procedure is specified, the Rules of Civil Procedure apply. G.S. 1A-1, — 519 — Rule 1. A quiet title action is by definition an action between two adverse parties. Vandiford v. Vandiford, 241 N.C. 42, 84 S.E. 2d 278 (1954). A condemnation proceeding, on the other hand, is a proceeding in rem against the property. Redevelopment Comm’n v. Hagins, 258 N.C. 220, 128 S.E. 2d 391 (1962). We are aware that some special proceedings may be converted to civil actions where the parties by their pleadings raise questions which only a court of law may decide. There, G.S. 1-399 directs the clerk of court to transfer the cause to the civil issue docket for trial as in other civil actions. A pertinent example involves boundary dispute proceedings under G.S. Chapter 38 where a party puts the title to the disputed area in issue. The proceeding is converted to an action to quiet title under G.S. 41-10 and is transferred to the civil docket for trial before a judge. E.g., Simmons v. Lee, 230 N.C. 216, 53 S.E. 2d 79 (1949). There is no similar statute for condemnation proceedings and G.S. 1-399 does not apply. Because condemnation is a special proceeding, the Rules of Civil Procedure do not apply to allow issues outside the pleadings to be tried by consent of the parties. Though it is sometimes possible to convert special proceedings to civil actions, the situations where that is true are limited and are governed by statute. Our research has disclosed no statutory or procedural mechanism by which a condemnation proceeding under G.S. Chapter 40A may be converted to a civil action to quiet title. Nor have we found any precedent in case law. The question remaining is whether this conversion may be accomplished by consent of the parties. Because of the fundamental procedural and substantive differences between civil actions to quiet title and special proceedings to condemn land, we do not think that parties to a non-adversary condemnation proceeding can consent to settle incidental questions of title to land. The nature of the issues raised simply will not admit of simultaneous resolution. Though we have found no controlling precedent, our reading of applicable statutes and case law supports this view. It is clear that one cannot condemn that which he owns. Our Supreme Court in VEPCO v. King, 259 N.C. 219, 130 S.E. 2d 318 (1963) quoted as “a concise and accurate statement of the law” the following language from an Oklahoma case: — 520 — The institution of the proceeding admits the ownership. The condemnor cannot claim the beneficial ownership of the land and at the time assert that the condemnee claims all or some part of that interest; the proceeding in condemnation cannot be employed as a means to quiet title; and the right to exercise the power of eminent domain is dependent entirely upon the ownership being in someone other thán the condemnor; the power to condemn negatives ownership in the condemn- or. Id. at 221, 130 S.E. 2d at 320 quoting Grand River Dam Authority v. Simpson, 192 Okla. 338, 340, 136 P. 2d 879, 881 (1943) (citations omitted). Other North Carolina cases as well have held in effect that the only issue that may be determined in a condemnation proceeding is the value of the property interest taken. E.g., City of Charlotte v. Spratt, 263 N.C. 656, 140 S.E. 2d 341 (1965). Issues regarding title to the condemned land are collateral issues and are properly the subject of separate proceedings. Barnes v. Highway Comm’n, 257 N.C. 507, 126 S.E. 2d 732 (1962). Where conflicting claims of parties are not resolved prior to the condemnation, the law provides a method for determining the proper disposition of the funds paid by the condemnor. VEPCO v. King, supra; G.S. 40A-31. That statute does not encompass the situation where, as here, one of the conflicting claimants is the condemnor. Id. That situation was presented in In Re Simmons, 5 N.C. App. 81, 167 S.E. 2d 857 (1969), though in a slightly different procedural context. There, the petitioner alleged ownership of a tract of land it sought to condemn. Claiming that petitioner sought not to condemn but to quiet title, the respondents moved to dismiss and the motion was granted. On appeal, this Court upheld the trial court’s dismissal of the proceeding, saying that the “best interests of efficient judicial administration would not be served by determining the issue of damages prior to determining the issue of title.” Id. at 87, 167 S.E. 2d at 861. In our view, the primary difference between Simmons and the present case is that VEPCO here claims that the title issue in this case was tried by consent. Indeed, it appears from the pleadings and consent judgment that the parties tried to obtain judicial resolution of the value of the easement sought by VEPCO as well — 521 — as the extent of their ownership interests in the land over which the easement was to run. If the court’s judgment had been more favorable to respondents, we doubt that this case would be here. For the reasons stated, a condemnation proceeding may not be converted to an action to quiet title even when the parties to the condemnation action stipulate that it may. Rather, where it appears that a condemnor claims an ownership interest in the property sought to be condemned, the appropriate action for the court would be to dismiss the condemnation proceeding without prejudice, permitting it to be reinstituted, if necessary, when the collateral issues regarding title to the land have been resolved, either by settlement or litigation. Because the question of title to the disputed tract was never properly before the trial court, we do not consider whether its judgment on that question was correct. Because the other alleged errors assigned by respondents are not likely to occur in whatever subsequent proceedings are had, we do not consider them either. The judgment of the trial court is therefore vacated and the cause remanded with instructions that it be dismissed. Vacated and remanded. Judges Arnold and Parker concur.