{
  "id": 8548282,
  "name": "BOARD OF TRANSPORTATION v. R. MAYNARD ROYSTER and wife, GRACE T. ROYSTER; COUNTY OF WAKE",
  "name_abbreviation": "Board of Transportation v. Royster",
  "decision_date": "1979-02-20",
  "docket_number": "No. 7810SC273",
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      "year": 1972,
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  "last_updated": "2023-07-14T20:01:10.825727+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Vaughn and Hedrick concur."
    ],
    "parties": [
      "BOARD OF TRANSPORTATION v. R. MAYNARD ROYSTER and wife, GRACE T. ROYSTER; COUNTY OF WAKE"
    ],
    "opinions": [
      {
        "text": "CLARK, Judge.\nThe defendants assign as error the trial court\u2019s denial of their motion to strike the Board of Transportation\u2019s second amended complaint and declaration of taking of Tract \u201cB\u201d by adding Tract \u201cA\u201d, contending that by adding the separate tract, not contiguous to the Tract \u201cB\u201d, a different and separate condemnation proceeding was instituted without strict adherence to the requirements of G.S. 136-103.\nIt is clear from the record on appeal that defendants owned two tracts of land separated by the Cary-Macedonia Road; that in the proceeding before us the Board of Transportation in its complaint described Tract \u201cB\u201d by mistake instead of Tract \u201cA\u201d and deposited $65,250.00, the estimated just compensation for Tract \u201cA\u201d; and that the purpose of amending the complaint was to correct the mistake by adding Tract \u201cA\u201d and depositing $3,075.00, the estimated just compensation for Tract \u201cB\u201d, which originally was described in this proceeding.\nG.S. 136-103 requires a description of \u201cthe entire tract or tracts\u201d in both the declaration of taking and the complaint, and provides for amendment to both and an \u201cincrease [in] the amount of its deposit . . . .\u201d If there is an amendment affecting the property, G.S. 136-104 requires a supplemental memorandum of action. The purpose of this requirement is that any amendment affecting the property taken will be entered in the land records of the county. State v. Johnson, 278 N.C. 126, 179 S.E. 2d 371 (1971).\nIt is clear that under Article 9, Chapter 136, General Statutes of North Carolina, a single condemnation proceeding may include more than one tract of land, and that the proceeding may be amended to include additional land provided that the additional land is described in the complaint and declaration of taking and in the land records of the county through a memorandum of action as required by G.S. 136-104, and further, that the deposit is increased if the sum estimated for just compensation is increased. The condemnation statutes do not require that multiple tracts be contiguous in a condemnation proceeding.\nA condemnation proceeding under Article 9, Chapter 136, is a civil action and is subject, as are other civil actions, to the Rules of Civil Procedure, G.S. 1A-1, Rule 1. Rule 18 removes all restrictions on the number or kinds of claims that may be joined by a party and moves the question of claims joinder into the area of trial or preparation for trial stage of the lawsuit. Shuford, N.C. Civil Practice and Procedure, \u00a7 18-3. Clearly, the Board of Transportation may include in a condemnation proceeding against an opposing party owner multiple tracts of land which are not contiguous.\nIn the case sub judice, since the Board of Transportation could have included both Tracts \u201cA\u201d and \u201cB\u201d in a single condemnation, the Board had the right to amend this proceeding by adding Tract \u201cA\u201d, though Tract \u201cA\u201d was separated from Tract \u201cB\u201d by the Cary-Macedonia Road, provided that the amendment is made in compliance with the condemnation statutes, (Art. 9, Ch. 136, General Statutes of North Carolina), and the Rules of Civil Procedure, G.S. 1A-1. The Board amended its complaint under G.S. 1A-1, Rule 15(a), which provides for amendment without leave of court before a responsive pleading is served. The defendants had not served a responsive pleading upon the Board of Transportation. In denying the motion of the defendants to strike the second amended complaint and declaration, the trial court properly ruled that the Board of Transportation had complied with the amendment provisions of Rule 15(a) and the condemnation statutes.\nThe order of the trial court denying defendants\u2019 motion to strike does not prejudice the right of the defendants to raise relevant issues of fact or law in their responsive pleading or their right to move for severance under Rule 42(b) \u201cin the furtherance of convenience or to avoid prejudice. . . .\u201d Severance is not a matter of right but lies within the court\u2019s discretion. Aetna Insurance Co. v. Carroll\u2019s Transfer, Inc., 14 N.C. App. 481, 188 S.E. 2d 612 (1972).\nIt is noted that the amendment not only adds a second tract to the proceeding but also seeks to correct a mistake which resulted in a deposit for fair compensation for lands not included in the original complaint and declaration of taking. When the con-demnor has made an appraisal of lands taken but the lands described in the condemnation proceedings do not conform to the lands appraised, the condemnor may amend the proceeding to properly describe the lands upon which the appraisal was made. McClarren v. Jefferson School Township, 169 Ind. 140, 82 N.E. 73 (1907); Darrow v. Chicago L.S.&S.B. Ry., 169 Ind. 99, 81 N.E. 1081 (1907); Blissfield Community Schools District v. Strech, 346 Mich. 186, 77 N.W. 2d 785 (1956).\nWe find no error in the order denying defendants\u2019 motion to strike plaintiff\u2019s second amendment of the complaint.\nPlaintiff has appealed from the order of the trial court awarding defendants attorney fees in the sum of $240.00. G.S. 136-119 authorizes the landowner to recover attorney fees in cases of inverse condemnation, in cases in which the Board of Transportation has no right to condemn, and in cases abandoned by the Board. The case sub judice does not fall within any of the statutory categories, and therefore the trial court erred in awarding counsel fees to defendants.\nAffirmed as to the order denying defendants\u2019 motion to strike the second amended complaint and the order granting plaintiff immediate possession of Tract \u201cA\u201d.\nReversed as to the order awarding counsel fees to defendants.\nAffirmed in part; Reversed in part and remanded.\nJudges Vaughn and Hedrick concur.",
        "type": "majority",
        "author": "CLARK, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten by Associate Attorney R. W. Newsom III for the State.",
      "Teague, Johnson, Patterson, Dilthey & Clay by Robert W. Kaylor for defendant appellants."
    ],
    "corrections": "",
    "head_matter": "BOARD OF TRANSPORTATION v. R. MAYNARD ROYSTER and wife, GRACE T. ROYSTER; COUNTY OF WAKE\nNo. 7810SC273\n(Filed 20 February 1979)\n1. Eminent Domain \u00a7 7.4\u2014 condemnation proceeding \u2014 more than one tract-amendment to include additional land\nUnder Art. 9 of G.S. Ch. 136 a single condemnation proceeding may include more than one tract of land, and the proceeding may be amended to include additional land if such land is described in the complaint and declaration of taking and in the land records of the county through a memorandum of action as required by G.S. 136-104, and if the deposit is increased where the sum estimated for just compensation is increased.\n2. Eminent Domain \u00a7 7.4\u2014 condemnation proceeding \u2014 noncontiguous tracts\nThe Board of Transportation may include in a condemnation proceeding against an opposing party owner multiple tracts of land which are not contiguous.\n3. Eminent Domain \u00a7 7.4\u2014 condemnation proceeding \u2014 right to amend complaint\nThe Board of Transportation had a right to amend its complaint without leave of court in a condemnation proceeding to add a second tract to the proceeding and to correct a mistake which resulted in a deposit for fair compensation for lands not included in the original complaint and declaration of taking where defendants had not served a responsive pleading on the Board, G.S. 1A-1, Rule 15(a), and where the amendment was made in compliance with the condemnation statutes.\n4. Eminent Domain \u00a7 7.1; Attorneys at Law \u00a7 7.3\u2014 condemnation proceeding \u2014 attorney fees\nIn a condemnation proceeding instituted by the Board of Transportation, the trial court erred in awarding attorney fees of $240.00 to defendants after the court denied their motion to strike a second amended complaint filed by the Board, since the proceeding does not fall within any of the categories for which attorney fees may be awarded in condemnation cases under G.S. 136-119.\nAppeal by defendants from Brewer, Judge. Order entered 8 February 1978, in Superior Court, WAKE County. Heard in the Court of Appeals 11 January 1979.\nDefendants were the owners of two tracts of land on Cary-Macedonia Road, lying approximately 1/2 mile from South Hills Shopping Center. Defendants\u2019 residence was situated on one tract (Tract \u201cA\u201d) and their other tract (Tract \u201cB\u201d) was separated from Tract \u201cA\u201d by the Cary-Macedonia Road.\nOn 15 February 1977, plaintiff filed summons, complaint, declaration of taking and notice of deposit for the purpose of appropriating a portion of defendants\u2019 lands for highway purposes. This action was numbered 77CVS661. The description of the lands affected in the pleadings described Tract \u201cB\u201d. On 17 February 1977, defendants withdrew the $65,250.00 deposited in court by plaintiff as estimated just compensation.\nOn 6 June 1977, plaintiff filed a second action against defendants, denominated as Civil Action 77CVS2498, for the purpose of appropriating a certain tract of land owned by defendants in Wake County with a deposit of $625.00. The Complaint in Civil Action 77CVS2498 contained an Exhibit \u201cB\u201d which contained exactly the same description as that found in Civil Action 77CVS661. Defendants did not apply for an Order disbursing the $625.00 deposited as \u201cjust compensation\u201d by plaintiff.\nOn 19 September 1977, plaintiff attempted, by motion in the cause, to obtain judicial assistance in requiring defendants to quit Tract \u201cA\u201d. Upon holding a hearing on this motion, the Superior Court determined that plaintiff had condemned Tract \u201cB\u201d, not Tract \u201cA\u201d, and therefore denied plaintiff\u2019s request for relief.\nThereafter plaintiff filed an amended complaint, supplemental memorandum of action and notice. The amendment described Tract \u201cA\u201d, but gave the wrong deed reference. This amendment purported to substitute, for the description of Tract \u201cB\u201d, the description of Tract \u201cA\u201d. Another motion in the cause was filed, again seeking possession of Tract \u201cA\u201d. Defendants moved to strike the amendment to the complaint.\nOn 3 November 1977 Judge Herring granted defendants\u2019 motion to strike. Thereafter, on 28 November 1977, plaintiff filed an amended complaint, declaration of taking and notice of deposit. Rather than attempting to substitute the description of Tract \u201cA\u201d for the description of Tract \u201cB\u201d, the amended complaint correctly described, and condemned, both parcels. The amended complaint was accompanied by an additional deposit of $3,075.00 as estimated just compensation, alleged that the sum of $65,250.00, previously deposited, was not plaintiff\u2019s estimate of just compensation for Tract \u201cB\u201d, but was in fact plaintiff\u2019s estimate of just compensation for Tract \u201cA\u201d, and alleged that the amount of money now deposited in the cause (77CVS661) was plaintiff\u2019s estimate of just compensation for the taking of Tracts \u201cA\u201d and \u201cB\u201d.\nDefendants thereafter filed a motion to strike the second amended complaint, which was denied by Judge Herring. Plaintiff then filed a motion in the cause seeking possession of Tract \u201cA\u201d. The relief requested in this motion was granted by Judge Brewer on 8 February 1978. On that same day Judge Brewer ordered plaintiff to pay defendants\u2019 counsel $240.00 attorney\u2019s fees.\nPlaintiff appeals from Judge Brewer\u2019s order allowing counsel fees. Defendants appeal from the denial of their motion to strike the amended complaint of 28 November 1977, and Judge Brewer\u2019s order of 8 February 1978 granting plaintiff immediate possession of Tract \u201cA\u201d. No answer has been filed.\nAttorney General Edmisten by Associate Attorney R. W. Newsom III for the State.\nTeague, Johnson, Patterson, Dilthey & Clay by Robert W. Kaylor for defendant appellants."
  },
  "file_name": "0001-01",
  "first_page_order": 29,
  "last_page_order": 34
}
