106 N.C. App. 489 | N.C. Ct. App. | 1992
Appellants argue, inter alia, that the trial court erred by holding that the DOT had a valid right of way across lots 31, 32 and 34. Specifically, appellant challenges the trial court’s holding that prior to 1 July 1959 the DOT was not required to record right of way agreements. We agree with the trial court and affirm.
This case is controlled by Kaperonis v. North Carolina State Highway Commission, 260 N.C. 587, 133 S.E.2d 464 (1963). In Kaperonis, the Highway Commission obtained a 100 foot right of way in 1928 for the purpose of constructing Wilkinson Boulevard. Apparently, that right of way was not recorded. In 1962 the Highway Commission began and completed a project to widen the paved portions of Wilkinson Boulevard. The new construction was wholly within the 100 foot unrecorded right of way acquired in 1928. The adjacent landowners, however, claimed that the Highway Commission did not have title to the land because the prior right of way had not been recorded. Chief Justice Denny rejected this argument and wrote:
The appellants argue that the defendant has not established title to the right of way claimed because it has no deed of easement duly recorded. Be that as it may, it will be noted that Chapter 1244 of the Session Laws of 1959, amending G.S. 47-27, reads as follows: “From and after July 1, 1959 the provisions of this section shall apply to require the State Highway Commission to record as herein provided any deeds of easement, or any other agreements granting or conveying an interest in land which are executed on or after July 1, 1959,*491 in the same manner and to the same extent that individuals, firms or corporations are required to record such easements.”
Id. at 600, 133 S.E.2d at 473. With the exception of a later amendment changing “State Highway Commission” to “Department of Transportation,” the portion of G.S. 47-27 quoted above has remained unchanged. We read Kaperonis to hold that G.S. 47-27 does not require the DOT to record deeds of easement or other agreements conveying interests in land executed prior to 1 July 1959.
We note that the appellant cites Highway Commission v. Nuckles, 271 N.C. 1, 155 S.E.2d 772 (1967) and Highway Commission v. Wortman, 4 N.C. App. 546, 167 S.E.2d 462 (1969) in support of his argument that no North Carolina court has addressed the issue of whether G.S. 47-27 required the DOT to record prior to 1 July 1959. Both cases expressly declined to address the issue raised here and were decided on other grounds.
We do not reach appellant’s remaining assignments.
Affirmed.