{ "id": 8566302, "name": "H. ALLEN WILCOX v. NORTH CAROLINA STATE HIGHWAY COMMISSION", "name_abbreviation": "Wilcox v. North Carolina State Highway Commission", "decision_date": "1971-06-10", "docket_number": "No. 95", "first_page": "185", "last_page": "188", "citations": [ { "type": "official", "cite": "279 N.C. 185" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "6 S.E. 2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "217 N.C. 32", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597802 ], "opinion_index": 0, "case_paths": [ "/nc/217/0032-01" ] }, { "cite": "135 S.E. 2d 659", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "261 N.C. 645", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575129 ], "opinion_index": 0, "case_paths": [ "/nc/261/0645-01" ] }, { "cite": "278 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561294 ], "pin_cites": [ { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0657-01" ] }, { "cite": "130 S.E. 2d 544", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "546" } ], "opinion_index": 0 }, { "cite": "259 N.C. 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560638 ], "pin_cites": [ { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0371-01" ] } ], "analysis": { "cardinality": 394, "char_count": 6730, "ocr_confidence": 0.551, "pagerank": { "raw": 4.1590509331977554e-07, "percentile": 0.9117969812139627 }, "sha256": "ca859e5512fe912041d5a06ac223fa4b4a6a00e6e4caacaeb4c63e41abcc0e4d", "simhash": "1:a01045c372bf7efa", "word_count": 1080 }, "last_updated": "2023-07-14T15:36:58.436463+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "H. ALLEN WILCOX v. NORTH CAROLINA STATE HIGHWAY COMMISSION" ], "opinions": [ { "text": "SHARP, Justice.\nIn pertinent part of G.S. 136-111 provides: \u201cAny 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 twenty-four (24) months of the date of said taking, file a complaint in the superior court . . . for the purpose of determining all matters raised by the pleadings and the determination of just compensation.\u201d The portion omitted from the preceding quotation relates to procedural requirements.\nCommission concedes that the taking of the easements across plaintiff\u2019s two lots was an intentional act and that it filed no complaint or declaration of taking. Although Commission alleges that the portion of plaintiff\u2019s property which was used to widen Eastway Drive was included within a right-of-way it had previously acquired, it now defends solely on the ground that plaintiff\u2019s action is barred by the requirement of G.S. 136-111 that the action be brought within twenty-four months of the date of the taking.\nPlaintiff, unable to gainsay that he instituted this action more than two years after the taking, for the first time, asserted in his assignments of error that G.S. 136-111 is unconstitutional as applied to the facts of this case. He contends that when the State took the easements in suit it had no intention of compensating him and, in such a case, due process requires written notice to the landowner that he will receive no compensation unless he brings suit within the specified time.\nHaving failed to question the constitutionality of G.S. 136-111 in the trial court, plaintiff may not on appeal attack the statute upon that ground. \u201cIt is a well established rule of this Court that it will not decide a constitutional question which was not raised or considered in the court below.\u201d Johnson v. Highway Commission, 259 N.C. 371, 373, 130 S.E. 2d 544, 546. Accord, Bland v. City of Wilmington, 278 N.C. 657, 180, S.E. 2d 813. See also Ramsey v. Veterans Commission, 261 N.C. 645, 135 S.E. 2d 659; Sheets v. Walsh, 217 N.C. 32, 6 S.E. 2d 817. We note, however, that a landowner\u2019s right to recover compensation by court action under G.S. 136-111 in no way depends upon whether the Commission intends to compensate him. Inter alia, Commission may contend, as here, that it owns the right-of-way actually appropriated, or, as it often does, that the landowner was not damaged by the taking.\nG.S. 136-111 was designed to limit the time within which an action such as this can be brought. Prior to 1965 the time limit for bringing such a suit was twelve months. In 1965 the time was increased to twenty-four months. N. C. Sess. Laws ch. 514, \u00a7 1\u00bd (1965). The facts stipulated establish that plaintiff\u2014 notwithstanding he had actual knowledge that Commission had appropriated his property \u2014 did not bring this action for compensation within the time fixed by G.S. 136-111 for its commencement. Defendant\u2019s plea of the statute is a complete defense to the action. It was properly dismissed.\nAffirmed.", "type": "majority", "author": "SHARP, Justice." } ], "attorneys": [ "Gene H. Kendall for plaintiff appellant.", "Attorney General Morgan, Deputy Attorney General White, Assistant Attorney General McDaniel for defendant appellee." ], "corrections": "", "head_matter": "H. ALLEN WILCOX v. NORTH CAROLINA STATE HIGHWAY COMMISSION\nNo. 95\n(Filed 10 June 1971)\n1. Appeal and Error \u00a7 3\u2014 constitutional questions \u2014 appellate review\nThe Supreme Court will not decide a constitutional question which was not raised or considered in the court below.\n2. Eminent Domain \u00a7 13\u2014 recovery of compensation under G.S. 136-111\nA landowner\u2019s right to recover compensation by court action under G.S. 136-111 in no way depends upon whether the Highway Commission intends to compensate him.\n3. Eminent Domain \u00a7 13\u2014 action by landowner under G.S. 136-111 \u2014 two-year statute of limitations\nWhere the Highway Commission intentionally appropriated in perpetuity an easement across plaintiff\u2019s land, but filed no complaint or declaration of taking, and plaintiff had knowledge of the appropriation, action to obtain compensation for the taking instituted by plaintiff under G.S. 136-111 more than twenty-four months after the taking is barred by the statute of limitations provided in that statute.\nAppeal by plaintiff from Martin, J. (Harry C.), 31 August 1970 Session of Mecklenburg, transferred from the Court of Appeals for initial appellate review by the Supreme Court under its general order of 31 July 1970, entered pursuant to G.S. 7A-31 (b) (4).\nThis is an action instituted against the North Carolina State Highway Commission (Commission) under G.S. 136-111 to obtain compensation for the alleged taking of plaintiff\u2019s property. The following facts are stipulated:\nPlaintiff and his wife, as tenants by the entireties, own two lots of land fronting on Eastway Drive in Charlotte, North Carolina. The lots do not adjoin. The first, known as 2331 East-way Drive, has a frontage of 180 feet; the second, known as 725 Eastway Drive, has a frontage of 65 feet. In order to widen Eastway Drive (State Highway Project No. 8.2722202), on 1 April 1969, Commission appropriated in perpetuity an easement 30 feet x 180 feet across the front of the first lot. For the same purpose, on 30 May 1969, Commission appropriated a similar easement 30 feet x 65 feet across the front of the second lot. On 23 June 1969, more than 24 months after Commission had appropriated these easements, plaintiff instituted this action to recover damages in the sum of $6,000.00 for the taking.\nInter alia, the complaint alleges that, in widening Eastway Drive \u201cduring late 1966 and early 1967,\u201d defendant reduced the area of plaintiff\u2019s property and removed valuable shade trees and underground tile; that defendant had taken plaintiff\u2019s prop.-erty \u201cwithout notice and without compensation . . . and that plaintiff has at no time been offered or paid any sums whatsoever for the property which was thus taken.\u201d\nAnswering, defendant alleged: (1) Street-widening Project No. 8.2722202 was \u201csolely within a previously existing 100-foot wide right-of-way easement belonging to the State Highway Commission. . . . \u201d; (2) the taking of the property described in the complaint occurred more than 24 months before the institution of this action, and \u201cdefendant specifically pleads the statute of limitations set forth in G.S. 136-111\u201d in bar of plaintiff\u2019s right to maintain this action.\nAt the pretrial hearing held pursuant to G.S. 136-108, after finding facts in accordance with the parties\u2019 stipulations and the admissions in the pleadings, Judge Martin ruled that \u201cthis action is barred by the provisions of G.S. 136-111.\u201d From his judgment dismissing the suit, plaintiff appealed.\nGene H. Kendall for plaintiff appellant.\nAttorney General Morgan, Deputy Attorney General White, Assistant Attorney General McDaniel for defendant appellee." }, "file_name": "0185-01", "first_page_order": 213, "last_page_order": 216 }