Board of Transportation v. Pierce
Board of Transportation v. Pierce
Opinion of the Court
The defendants appeal from an interlocutory order which they may do in this case. See Highway Commission v. Nuckles, 271 N.C. 1, 155 S.E. 2d 772 (1967).
The appellants contend that the description in the 1938 judgment under which the State Highway and Public Works Commission acquired a right of way was not a proper description. The appellants argue that the right of way is not described specifically enough in the judgment to give the plaintiff any interest in the property. The judgment provides the State Highway and Public Works Commission shall have a “right of way one hundred feet in width measured 50 feet on either side of the centre line of the concrete pavement laid during the year 1929.” If this description is such that the boundaries to the right of way could have been located with certainty on the
The appellants’ rely on In re Simmons, 5 N.C. App. 81, 167 S.E. 2d 857 (1969). In that case this Court affirmed the dismissal of a petition in which the City of Greensboro attempted to condemn property for the widening of a street. The petition asked for the condemnation of whatever property the respondent owned within 22 feet of the center of Church Street. The petition did not say where the existing edge of the right of way was located. This Court held that the petition should have been dismissed because it did not describe the property to be condemned. In the case sub judice, the property to be condemned is described with specificity in the complaint.
We note that a lawsuit involving the right of way in question has three times been to our Supreme Court. See Hildebrand v. Telegraph Co., 216 N.C. 235, 4 S.E. 2d 439 (1939); 219 N.C. 402, 14 S.E. 2d 252 (1941); 221 N.C. 10, 18 S.E. 2d 827 (1942). The parties at that time apparently had no difficulty determining the right of way lines.
During his testimony, Mr. Bumgarner testified, over the objection of the defendants, that he used unrecorded plats of surveys made in 1929,1955 and 1969 to assist him in his survey. The appellants assign this as error. Since we have held that the description in the 1938 judgment was sufficient to locate the boundary of the right of way, it was not error to allow Mr. Bumgarner to testify as to how he conducted the survey, including testimony as to the use of old plats.
Affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.