Opinion
No. COA15-1032
05-17-2016
NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Plaintiff, v. THOMAS D. HERMAN, et ux, et al, Defendants.
Attorney General Roy Cooper, by Assistant Attorney General Douglas W. Corkhill, for plaintiff-appellee. Kilby & Hurley, Attorneys at Law, by John T. Kilby, for defendants-appellants.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Ashe County, No. 12CVS0430 Appeal by defendants from Order entered 21 May 2015 by Judge David L. Hall in Ashe County Superior Court. Heard in the Court of Appeals 10 February 2016. Attorney General Roy Cooper, by Assistant Attorney General Douglas W. Corkhill, for plaintiff-appellee. Kilby & Hurley, Attorneys at Law, by John T. Kilby, for defendants-appellants. ELMORE, Judge.
The North Carolina Department of Transportation (DOT) filed a complaint and a "Declaration of Taking and Notice of Deposit" against Thomas D. Herman and wife, Victoria S. Herman, George A. Burgess, and Carolina Farm Credit, ACA (defendants). After a hearing pursuant to N.C. Gen. Stat. § 136-108, the trial court concluded that the map DOT prepared shall be used in determining the amount of damages. The Hermans appeal. After careful review, we modify the order and affirm.
I. Background
In May 1994, Cora Wiles conveyed a 0.141 acre tract (the tract) in Jefferson, North Carolina to the Hermans. The tract houses a two-story office building that Thomas Herman uses to operate, "Thomas Herman Co, PLLC," an engineering, surveying and forestry company. The tract is shaped like a rectangle, and N.C. Highway 88 runs parallel with the northern portion of the tract. The issue in this case involves a highway project in which DOT sought to widen the shoulders of N.C. Highway 88 and create turn lanes, initially through negotiation with property owners. In October 2012, after failing to reach an agreement with the Hermans, DOT filed a complaint and a "Declaration of Taking and Notice of Deposit" against defendants pursuant to N.C. Gen. Stat. § 136-103. In the complaint, DOT stated "it is necessary to condemn and appropriate certain property . . . for public use in the construction of [highway project 34977.2.2.]"
In September 2014, DOT filed a map (DOT map) as mandated by N.C. Gen. Stat. § 136-106(c), showing 295 square feet, or 0.007 acres, of temporary construction easement as "the land taken." DOT also filed a Request for Admission, asking defendants to admit that the DOT map evidenced a full and accurate description of the area and interest taken by DOT. In defendants' response, they denied the request and included a map (the Herman map) they claimed represented a full and accurate description of the area and interest taken. The Herman map shows two additional areas taken, totaling 598.6 square feet and 116.3 square feet.
Because defendants and DOT did not agree on which map should be used in the damages proceeding, DOT filed a motion for hearing pursuant to N.C. Gen. Stat. § 136-108 "to determine any and all issues raised by the pleadings in this cause other than the issue of damages[.]" A hearing was held and the Ashe County Superior Court entered an order on 21 May 2015, concluding that the DOT map which "shows a taking of 285 square feet of Temporary Construction Easement shall be used by the parties in their determination of damages in this proceeding." The Hermans appeal.
The DOT map shows a taking of 295 square feet. At the hearing, counsel for DOT argued that the taking totals 295 square feet. Moreover, in DOT's brief filed on appeal, it states that the taking as shown on the DOT map totals 295 square feet. The only reference to a taking of 285 square feet is in the trial court's 21 May 2015 Order.
II. Analysis
N.C. Gen. Stat. § 136-108 provides, "After the filing of the plat, the judge, upon motion . . . by either [DOT] 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, . . . title to the land, interest taken, and area taken." N.C. Gen. Stat. § 136-108 (2015). "It is the trial court's function at a section 108 hearing 'to decide all questions of fact.' " Dep't of Transp. v. Webster, 230 N.C. App. 468, 473, 751 S.E.2d 220, 224 (2013) (quoting Highway Comm'n v. Farm Equip. Co., 281 N.C. 459, 467, 189 S.E.2d 272, 277 (1972)).
We acknowledge that the 21 May 2015 Order from which the Hermans appeal is interlocutory because the issue of damages has not yet been resolved. "There is generally no right to appeal an interlocutory order." Turner v. Norfolk S. Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000) (citation omitted). However, "an order from a trial court's judgment in a Section 108 hearing concerning title to property and area taken is a vital preliminary issue and is subject to immediate review on appeal[.]" Webster, 230 N.C. App. at 471, 751 S.E.2d at 223 (citing Highway Comm'n v. Nuckles, 271 N.C. 1, 14, 155 S.E.2d 772, 784 (1967) ("[S]hould there be a fundamental error in the judgment resolving these vital preliminary issues, ordinary prudence requires an immediate appeal, for that is the proper method to obtain relief from legal errors.")). Thus, the interlocutory order affects a substantial right, and we review the merits of the Hermans' appeal.
" 'The standard of review on appeal from a judgment entered after a non-jury trial is whether there is competent evidence to support the trial court's findings of fact and whether the findings support the conclusions of law and ensuing judgment.' " Webster, 230 N.C. App. at 477, 751 S.E.2d at 226 (quoting Cartin v. Harrison, 151 N.C. App. 697, 699, 567 S.E.2d 174, 176 (2002)). "Unchallenged findings of fact are presumed correct and are binding on appeal." In re Schiphof, 192 N.C. App. 696, 700, 666 S.E.2d 497, 500 (2008) (citations omitted).
The Hermans do not contest the findings of fact in the 21 May 2015 Order and they are, therefore, binding on appeal. Rather, the Hermans argue that the findings of fact do not support the conclusions of law, that some of the conclusions of law are true and undisputed statements of fact, and that some have no relevance here. The Hermans state, "Although these statements of the law may be correct based on the facts presented in the cited cases, the facts in the instant case do not support the ultimate conclusion that the DOT Map accurately reflects the location of the existing right of way of N.C. Highway 88."
"The classification of a determination as either a finding of fact or a conclusion of law is admittedly difficult. As a general rule, however, any determination requiring the exercise of judgment, or the application of legal principles, is more properly classified as a conclusion of law. Any determination reached through logical reasoning from the evidentiary facts is more properly classified a finding of fact." In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675 (1997) (citations and quotation marks omitted).
To the extent portions of the conclusions of law are more properly characterized as findings of fact, we conclude the record contains competent evidence to support the findings. Webster, 230 N.C. App. at 477, 751 S.E.2d at 226; Sheffer v. Rardin, 208 N.C. App. 620, 624, 704 S.E.2d 32, 35 (2010) ("[D]espite the identification . . . of a provision of the order as finding of fact or conclusion of law, we must base our consideration upon the proper identification of the issue."). We read the Hermans' actual argument as challenging only "the ultimate conclusion" contained in paragraph five, which states, "The Court map prepared by [DOT] accurately shows the location of existing right-of-way of N.C. Highway 88 and the areas and interests acquired in this proceeding." For the reasons discussed below, the trial court's findings of fact support this conclusion.
The Hermans argue that the DOT map is inaccurate because they own to the center of N.C. Highway 88, and the courses and distances in the 1994 deed description do not control the location of their northern boundary line. Instead, they claim that "[i]n accordance with the holding in Gamble, the right of way of N.C. Highway 88, as it existed on the date of the Herman Deed, controls the location of the boundary line, not the courses and distances in the [deed] description." DOT claims that the Hermans "have failed to show they own anything more than what they purchased, a 0.141 acre tract with the same dimensions as shown on both their deed and the 1994 survey Herman prepared."
The facts of this case are distinguishable from those in North Carolina State Highway Commission v. Gamble, 9 N.C. App. 618, 177 S.E.2d 434 (1970). In that case, the Highway Commission sought to condemn a portion of the Gambles' property for a highway project. Id. at 619, 177 S.E.2d at 435. At issue was the eastern right-of-way of U.S. Highway 21 and the western boundary line of the Gambles' property. Id. at 620-21, 177 S.E.2d at 436. The Highway Commission and the Gambles "stipulated as a matter of record in the case that on the date of the taking herein, the right-of-way for U.S. Highway No. 21 was 150 feet, extending 75 feet on each side of the center line of the highway." Id. at 623, 177 S.E.2d at 437. They also stipulated that the Gambles' predecessor owned the area at issue. Id. at 619, 621, 177 S.E.2d at 435-36. The description in the Gambles' deed was inconsistent as it "provid[ed] that the boundary line of said tract runs with the eastern margin of [the] right of way for U.S. Highway No. 21 and said boundary along the highway is described by courses and distances which do not follow the highway right of way as it then existed[.]" Id. at 620-21, 177 S.E.2d at 436. Thus, the trial court concluded that the Gambles' boundary line extended to the eastern right-of-way of U.S. Highway No. 21. Id. at 621, 177 S.E.2d at 436. This Court affirmed based on the parties' stipulation that the calls were inconsistent and the general rule that where the calls are inconsistent, " 'calls to natural objects control courses and distances.' " Id. at 623, 177 S.E.2d at 438 (quoting 2 Strong, N.C. Index 2d, Boundaries, § 2).
Here, in contrast, the parties did not stipulate to the width of the right-of-way or its location. See id. at 623, 177 S.E.2d at 437. Likewise, the parties did not stipulate that the Hermans' predecessor owned the area at issue. See id. at 619, 621, 177 S.E.2d at 435-36. The critical distinction is that the trial court here was presented with calls in a deed that DOT claimed were consistent with the call to the right-of-way but the Hermans claimed were inconsistent. Because the trial court determined that the metes and bounds description was consistent with the call to the southern right-of-way, the general rule stated above does not apply.
The deed, recorded 5 May 1994, states as follows:
Being the Cora Wiles property as described in Deed Book 119, page 469, being more particularly described as:
BEGINNING on a 1-inch pipe found in the southern right-of-way of N.C. Highway #88, said pipe being the northwestern corner of the Cora Wiles property, thence with the southern right-of-way of said N.C. Highway #88 and the northern line of said Wiles property, N 87-42-25 E, 63.01 feet to a spike set, said spike being the northeastern corner of said Wiles property; thence with the eastern line of said Wiles property, S 02-02-11 E, 99.50 feet to a 1/2-inch rebar found, said rebar being the southeastern corner of said Wiles property; thence with the southern line of said Wiles property, N 87-40-47 W, 64.25 feet to a 1-inch pipe found, said pipe being the southwestern corner of said Wiles property; thence with the western line of said Wiles property; N 01-23-40 W, 94.35 feet to the BEGINNING, containing 0.141 acres as calculated by coordinate geometry, from: field data gathered by the Thomas Herman Company[.]
The 22 February 1994 survey, prepared by the Thomas Herman Company in connection with the deed conveyance, is consistent with the deed description. It shows the total area conveyed is 0.141 acres, and the following four calls establish its boundaries: the northwest corner of the tract is labeled as "1" pipe found;" the northeast corner as "spike set;" the southeast corner as "1/2" rebar found;" and the southwest corner as "1" pipe found." The northern and southern boundary lines extend 63.01 feet (N 87°42'25"E) and 64.25 feet (N 87°40'47"W), respectively, and the eastern and western boundary lines extend 99.50 feet (S 02°02'11"E) and 94.35 feet (N 01°23'40"W), respectively.
The DOT map lists nearly identical descriptions as those found in the 1994 deed and 1994 survey, with the exception of the western boundary line, which DOT calculated to be 100.13 feet instead of 99.50 feet. Thus, the DOT map indicates that the tract is 0.142 acres, which DOT claimed "amounted to margin of error." The DOT map further shows that N.C. Highway 88 is a twenty-five foot paved roadway, and DOT has an existing right-of-way on the northern and southern boundaries of N.C. Highway 88. Due to the existing southern right-of-way, the DOT map shows a taking of 295 square feet for a temporary construction easement.
In contrast, the Herman map, last revised 9 March 2015, shows the total area conveyed was 0.150 acres, and the western and eastern boundary lines extend 114.19 feet and 113.93 feet, respectively. The Hermans argue that, based on the general description in their deed, "Being the Cora Wiles property . . . ," the description in the Wiles deed controls over the specific description in the 1994 deed. DOT points out that the 1994 deed specifically describes the property as "beginning on a 1-inch pipe found in the southern right-of-way of N.C. Highway #88," and "the predecessor deeds in the [Hermans'] chain of title show a dedicated roadway that comes to the edge of the 60 by 100 foot property previously conveyed."
In Lewis v. Furr, our Supreme Court explained,
The specific description in a deed, when definite and clear, is not to be enlarged by a reference to the source of title, such as "being the same property conveyed in deed", etc., because "when connected with the specific description, it can only be considered as an identification of the land described in the boundary," Midgett v. Twiford, 120 N.C. 4, 26 S.E. 626, or "as a further means of locating the property," Loan Ass'n v. Bethel, 120 N.C. 344, 27 S.E. 29.228 N.C. 89, 92, 44 S.E.2d 604, 606 (1947); see also Potter v. Bonner, 174 N.C. 20, 21-22, 93 S.E. 370, 371 (1917); Bd. of Transp. v. Pelletier, 38 N.C. App. 533, 537, 248 S.E.2d 413, 415 (1978) ("It is generally recognized in this jurisdiction that a specific description will prevail over a general description.").
Accordingly, based on the record presented, we reject the Hermans' argument that the general description controls over the specific description. The specific description in the 1994 deed is definite and clear. Although the Hermans argue that there is a discrepancy between the call to the metes and bounds, and the call to the southern right-of-way of N.C. Highway 88, at the hearing, Mr. Herman stated, "We had located the corners before I bought the property to know where the extent of the property was." He testified that he bought 0.141 acres, which was calculated from a computer program after a field crew from his surveying company located the four corners of the tract. As the trial court found, the Hermans' own deed description reflected their awareness of the southern right-of-way of N.C. Highway 88. The Hermans' tract as depicted in the DOT map is in accord with the 1994 deed and the 1994 survey. The Hermans have failed to show that the trial court erred in ordering the parties to use the DOT map in determining damages or that the area taken is different than that shown on the DOT map.
III. Conclusion
The trial court did not err in ordering the parties to use the DOT map in determining the amount of damages. However, because the trial court's order shows a taking of 285 square feet but the DOT map shows the temporary construction easement totals 295 square feet, we modify the trial court's order to show a taking of 295 square feet.
MODIFIED AND AFFIRMED.
Judges STROUD and DIETZ concur.
Report per Rule 30(e).