Redevelopment Commission of the City of Washington v. Grimes , 8 N.C. App. 376 ( 1970 )

MalláRD, C.J.

In order for a redevelopment commission to establish .a right to acquire property by condemnation, the petition must affirmatively show that the provisions of G.S. 40-12 and Article 37 of Chapter 160 of the General Statutes have been complied with. Redevelopment Commission v. Hagins, 258 N.C. 220, 128 S.E. 2d 391 (1962); Redevelopment Comm. v. Abeyounis, 1 N.C. App. 270, 161 S.E. 2d 191 (1968). In the case before us the respondents concede in their brief that the contents of the petition are sufficient to meet the criteria set out in the statutes as interpreted by the courts. Thus, respondents have made no contention that the petitioner has failed to properly allege the prerequisites necessary to exercise the power of eminent domain.

When a redevelopment corporation, possessing the power of eminent domain under G.S. 160-462, is unable to agree with the owner for the purchase of property required for its purposes, the procedure to acquire the property is by a special proceeding as provided in Article 2 of Chapter 40 of the General Statutes, except as modified by the provision of G.S. 160-465. In McIntosh, N.C. Practice 2d, § 2371(3), it is said:

“Within the time mentioned in the summons and notice the defendants are to answer the petition, and they may show cause against granting the prayer, or disprove any of the facts alleged in the petition. If the facts alleged are denied, the burden is upon the petitioner to establish the facts; but this is for the clerk to hear and determine, and the case is not transferred to the civil issue docket for a jury trial at this stage.” (Emphasis Added.)

Under the provisions of G.S. 40-16, after a petition seeking condemnation is filed and served with summons, persons whose estates are to be affected by the proceedings “may answer such petition and show cause against granting the prayer of the same, and may disprove any of the facts alleged in it. The court shall hear the proofs and allegations of the parties, and if no sufficient cause is shown against granting the prayer of the petition, it shall make an order for the appointment of three disinterested and competent freeholders who reside in the county where the premises are to be appraised, for the purposes of the company, and shall fix the time and place for the first meeting of the commissioners.” (Emphasis Added.)

Statutes prescribing the procedure to condemn lands should be strictly construed. Redevelopment Comm. v. Abeyounis, supra. When the respondents denied the allegations of the petition, it then became the duty of the clerk of superior court in this special proceeding, after notice, to hear the parties and pass upon the disputed matters presented on the record. G.S. 40-16; Selma v. Nobles, 183 N.C. 323, 111 S.E. 543 (1922). If the allegations of the petition are found to be true, it would be the duty of the clerk to appoint commissioners to appraise the property and assess damages for the taking. G.S. 40-16. However, in this case, the record does not show, and the order entered by the clerk appointing commissioners does not reveal, that after a proper hearing the controverted facts had been determined in favor of the petitioner. Randleman v. Hinshaw, 267 N.C. 136, 147 S.E. 2d 902 (1966). We do not think that the clerk’s determination that commissioners should be appointed was a sufficient finding of the controverted facts in this case. Because of the failure to specifically determine the controverted facts in favor of the petitioner, the Clerk of the Superior Court of Beaufort County did not have authority to issue an order appointing commissioners. G.S. 40-16; R. R. v. R. R., 148 N.C. 59, 61 S.E. 683 (1908); 3 Strong, N.C. Index 2d, Eminent Domain, § 10.

The commissioners appointed by the clerk, after one had been excused and another person was substituted by consent of the parties, filed their report on 28 July 1969.

G.S. 40-19, in pertinent part, reads as follows:

“Within twenty days after filing the report the corporation or any person interested in the said land may file exceptions to said report, and upon the determination of the same by the court, either party to the proceedings may appeal to the court at term, and thence, after judgment, to the appellate division. * * * ))

This statute, G.S. 40-19, requires that the clerk hear and make a determination of the exceptions to the report before an appeal lies to the judge of the superior court. In McIntosh, N.C. Practice 2d, § 2371(6), the proper procedure is stated:

“Within twenty days after the report of the commissioners is filed, either party may file exceptions, and when these are heard and determined by the clerk either party may appeal to the judge at term, and the clerk or judge may confirm or modify the report or make such other orders as may be necessary. * * *”

The record in the case before us does not contain anything to show that after the filing of exceptions to the report of the commissioners, the provisions of G.S. 40-19 were complied with.

The respondents, in their commendable zeal to protect their interests, say, among other things, in their “appeal entries”:

“WHEREFORE, these replying respondents do object and except to the Report of the Commissioners herein and appeal from same to the Superior Court of Beaufort County and demand a Jury Trial, and do further reiterate their Pleas-in-Bar heretofore filed by them in said cause and demand a hearing on the same before any further matters are heard and determined on the Report of said Commissioners.”

The case was then, insofar as the record before us reveals, transferred to the superior court. The attempted appeal in this case from the “Report of the Commissioners” by the respondents was premature. The statute, G.S. 40-19, confers the right of appeal, after a determination by the court of the exceptions properly filed, but does not give the right of appeal prior to a determination by the clerk.

The record does not reveal how this matter appeared upon the court calendar for trial at the 3 November 1969 Civil Session of Superior Court of Beaufort County, but it did appear thereon. The petitioner made a motion to continue which was denied by the court. We think that under the circumstances of this case, the trial judge should have conducted a pretrial conference, and these deficiencies would probably have become apparent to the court. This is supported by the fact that upon the case being called for trial, the attorneys for respondents “made a motion that there were questions of fact concerning petitioner's right to condemn which had first to be determined by the court.” It appears from the record that the parties had different concepts of what phase of the matter they were going to try. This is evidenced by a portion of the judgment of Judge Parker in which he states:

“The court being of the opinion that the replies of the respondents raised questions of fact concerning the petitioner’s right to condemn, and particularly upon the allegations of Sections Six, Ten and Eleven of the petition, advised the parties that in the course of orderly procedure that there should be an adjudication of the questions of fact raised by the denial of these said allegations of the petitioner as a necessary first step in the determination of the cause.

The court in its discretion then advised the respondents that he considered that they had the burden of going forward upon these questions of fact which were to be determined by the court. * * *”

In addition, Judge Parker found, without any support from this record other than an inference that he may have gathered from the fact that commissioners were appointed, that the defenses raised by the respondents were decided adversely to them and in favor of the petitioner by the Clerk of Superior Court of Beaufort County.

Petitioner attempts to raise the question as to whether the court committed error in failing to find that the respondents’ property was an integral part of the Downtown Waterfront Urban Renewal Area, Project NCR 38. Petitioner argues that the Planning Commission had made a determination that it was an integral part thereof, and the court could not alter such findings unless it was alleged and proven that the findings of the Planning Commission were arbitrary and capricious. As has already been pointed out, because of the failure of the clerk to rule upon matters in controversy raised in the pleadings; the failure of the clerk to act on the report of the commissioners and the exceptions thereto; and another procedural irregularities stemming therefrom, the appeal to the superior court was premature. Therefore, the question which petitioner attempts to raise in this court is not properly presented. There were no findings by the clerk on the controverted allegations of the petition. For the same reason, the questions with respect to the hearing of evidence in the superior court on petitioner’s right to condemn and whether the superior court committed error in its conclusions of law based on the findings of fact are not properly presented on this appeal.

The order of the clerk of superior court dated 1 May 1969, appointing commissioners herein, the report of the commissioners dated 28 July 1969, and the judgment of the superior court dated 7 November 1969 are all vacated, and this cause is remanded to the Superior Court of Beaufort County. The presiding judge or the judge holding superior court in Beaufort County is directed to remand this matter to the Clerk of Superior Court of Beaufort County in order that he may proceed herein as provided by law.

Error and remanded.

MoRRis and Graham, JJ., concur.