Ledford v. North Carolina State Highway Commission

Supreme Court of North Carolina
Ledford v. North Carolina State Highway Commission, 181 S.E.2d 466 (N.C. 1971)
279 N.C. 188; 1971 N.C. LEXIS 768
Sharp

Ledford v. North Carolina State Highway Commission

Opinion

SHARP, Justice.

Like any other person whose land is taken by the State Highway Commission for highway purposes, an owner whose access to a public road is a right-of-way over adjoining property is entitled to just compensation when the State deprives him of this easement. Ordinarily, such a taking will be accomplished by the filing of a complaint and a declaration of taking as specified in G.S. 136-103. However, G.S. 136-111 provides that “any person whose land or compensable interest therein” has been appropriated by the Highway Commission without the filing of a complaint and declaration of taking may, “within twenty-four (24) months of the date of said taking,” bring an action in the superior court to recover damages for the taking. Thus, although a property owner is always entitled to just compensation when his land is taken for public use, he must pursue the prescribed remedy within the time specified. Wilcox v. Highway Commission, 279 N.C. 185, 181 S.E. 2d 435.

In an attempt to circumvent the bar of G.S. 136-111, plaintiffs argue that their right-of-way over the Leatherwood property was not taken on 30 October 1967, the date the fence was erected across it, but on 24 February 1970, the date they allege they first sought to use the easement and were prevented from doing so by the fence. This contention, however, is untenable. The taking occurred when Commission erected the fence, severing the right-of-way and preventing its further use, and not at the time plaintiffs were first inconvenienced by it. The fence was not a temporary srtucture but a permanent and essential adjunct to a fully controlled-access highway. It was visible and incontrovertible evidence of Commission’s intention to appropriate the easement permanently. “ ‘Taking’ under the power of eminent domain may be defined generally as entering upon private property for more than a momentary period and, under the warrant or color of legal authority, devoting it to a public *191 use, or otherwise informally appropriating or injuriously affecting it in such a way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof.” 26 Am. Jur. 2d Eminent Domain § 157 (1966). The foregoing definition was adopted by this Court in Penn v. Coastal Corporation, 231 N.C. 481, 484, 57 S.E. 2d 817, 819.

The judgment of the Superior Court, which dismissed this action, is

Affirmed.

Reference

Full Case Name
SAM LEDFORD and Wife, MAGGIE R. LEDFORD v. NORTH CAROLINA STATE HIGHWAY COMMISSION
Cited By
7 cases
Status
Published
Syllabus
1. Eminent Domain 2 — obstruction of access to highway An owner whose access to a public road is a right-of-way over adjoining property is entitled to just compensation when the State deprives him of this easement. 2. Eminent Domain 13 — landowner's action for compensation — statute of limitations Although a property owner is always entitled to just compensation when his land is taken for public use, he must pursue the prescribed remedy within the time specified. 3. Eminent Domain 2, 13 — erection of fence across right-of-way — taking of property — action for compensation — statute of limitations A taking of plaintiffs' property occurred when the Highway Commission erected a permanent fence obstructing their right-of-way across adjoining property which gave them access to a public road, not at the time plaintiffs first sought to use the easement and were prevented from doing so by the fence; consequently, the two-year statute of limitations for instituting an action under G.S. 136-111 to obtain compensation for the taking began to run on the date the fence was erected.Page 189