Berta v. North Carolina State Highway Commission , 36 N.C. App. 749 ( 1978 )

BRITT, Judge.

Did the trial court err in denying appellants’ motion to intervene in this action? We hold that it did not.

Appellants concede that if this action had been instituted by defendant pursuant to G.S. 136-104, they would have no right to intervene since that statute provides that title vests in the Board of Transportation when it files the complaint and declaration of taking and deposits the estimated amount of compensation with the court.

They argue, however, that when the action is for inverse condemnation under G.S. 136-111, the statute controlling this case, title does not vest in the Board of Transportation until final judgment is entered and the amount of compensation is paid; and that inasmuch as their motion to intervene was filed before final judgment was entered and compensation paid, the motion should have been allowed.

The litigants do not cite, and our research does not disclose, any authority from this jurisdiction that provides a direct answer to the question raised. Appellants point out that while G.S. 136-104 expressly provides for the vesting of title in the Board of Transportation upon compliance with the provisions thereof, G.S. 136-111 is silent as to when title vests in said Board when the proceeding is under it; and that since defendant in this case denied a “taking”, that title could not have passed to defendant until final judgment and the payment of compensation.

Appellants strongly rely on certain language in Caveness v. Railroad, 172 N.C. 305, 90 S.E. 244 (1916), an inverse condemnation case under statutes which were similar to those now codified in G.S. Chapter 40. They quote language from Caveness declaring that a grantee of a party instituting an inverse condemnation proceeding may be entitled to the compensation if the grantee asserts his right by action or appropriate proceedings in the cause. Appellants contend their motion to intervene was an “appropriate proceeding” in this cause.

Defendant argues that the concept of condemnation by the Board of Transportation under G.S. Chapter 136 is entirely different from that envisioned by G.S. Chapter 40 and its predecessor statutes. Defendant argues that under Chapter 40 the condemnor seeks to take property and can avoid acquiring title by abandoning the proceeding if the property proves to be too expensive or otherwise undesirable, citing Light Co. v. Manufacturing Co., 209 N.C. 560, 184 S.E. 48 (1936). On the other hand, defendant argues, if the Board institutes the proceeding under G.S. 136-104, a “taking” occurs simultaneously with the institution of the proceeding; and, if the property owner institutes the proceeding under G.S. 136-111, a “taking” is envisioned as having already occurred. With respect to the concept of Chapter 136, we find this argument persuasive.

At the time of the institution of this action, G.S. 136-111 provided in pertinent part:

“Any person whose land or compensable interest therein HAS BEEN TAKEN by an intentional or unintentional act or omission of the Highway Commission and no complaint and declaration of taking HAS BEEN FILED by said Highway Commission may, within 24 months of the date of said taking, file a complaint in the Superior Court setting forth” (his claim for compensation). (Emphasis supplied.)

In his complaint in the case at hand plaintiff alleged certain intentional or unintentional acts or omissions on the part of defendant that constituted a “taking” of his land. As was said in Midgett v. Highway Commission, 260 N.C. 241, 249, 132 S.E. 2d 599 (1963), “[o]nce the cause of action has occurred by the infliction of damage to the property, the taking is a fait-accompli."

In 2 Nichols, Eminent Domain (Rev. 3 ed.), § 521, we find:

“If a parcel of land is sold after a portion of it has been taken (or after it has been injuriously affected by the construction of some authorized public work), the right to compensation, constitutional or statutory, does not run with the land but remains a personal claim in the hands of the vendor, unless it has been assigned by special assignment or by a provision in the deed. It is immaterial that the question of compensation is deferred. . . .”

In 29A C.J.S., Eminent Domain, § 202, we find:

“Damages for the taking of land or for the injury to land not taken belong to the one who owns the land at the time of the taking or injury, and they do not pass to a subsequent grantee of the land, except by a provision to that effect in the deed or by separate assignment. . . .”

See also Brooks Inv. Co. v. City of Bloomington, 305 Minn. 305, 232 N.W. 2d 911 (1975).

We hold that the trial judge properly concluded that appellants had not been “deprived by defendant of any compensable interest” in the real property in question and that they have “no interest recognized at law or equity in the subject matter of this action”.

We also find persuasive plaintiff’s argument that appellants’ motion to intervene was not timely. G.S. 1A-1, Rule 24, is the rule of Civil Procedure relating to intervention. With respect to intervention of right and permissive intervention, the rule requires “timely application.”

The provisions of G.S. 136-108 apply to condemnation proceedings under G.S. 136-111 as well as under G.S. 136-104. Lautenschlager v. Board of Transportation, 25 N.C. App. 228, 212 S.E. 2d 551 (1975), cert. denied, 286 N.C. 260, 214 S.E. 2d 431 (1975). G.S. 136-108 provides: “After the filing of the plat, the judge, upon motion and 10 days notice by either the Board of Transportation or the owner, shall, either in or out of term, hear and determine any and all issues raised by the pleadings other than the issue of damages, including, but not limited to, if controverted, questions of necessary and proper parties, title to the land, interest taken and area taken.” This statute contemplates two hearings, one on the issue of damages and another on all other issues.

Appellants, after receiving their deed on 17 October 1973 delayed the filing of their motion to intervene until 12 May 1977. At that time the court had already conducted the hearing to determine all issues other than the question of damages and trial of that single remaining issue had been scheduled for 16 May 1977.

We hold that appellants’ application to intervene was not timely. G.S. 1A-1, Rule 24.

The order appealed from is

Affirmed.

Judges Arnold and ERWIN concur.