Lautenschlager v. Board of Transportation

25 N.C. App. 228 | N.C. Ct. App. | 1975

VAUGHN, Judge.

Plaintiff stressfully contends that she is entitled to a jury trial on all questions of fact.

G.S. 136-108 expressly provides that when the Board of Transportation institutes a condemnation action the judge shall hear and determine all issues raised by the pleadings other than the issue of damages.

Here the Board did not institute the action or file a declaration of taking. Where there is an alleged taking and no complaint and declaration of taking by the Board, the person who contends his land has been taken may institute the action by utilizing the authority and procedures authorized by G.S. 136-111. That statute details what the landowner must set out in his complaint and memorandum of action and also provides “The procedure herein-before set out shall be followed for the purpose of determining all matters raised by the pleadings and the determination of just compensation.”

We hold that in an action started by the landowners under G.S. 136-111, the procedures set out in G.S. 136-108 shall be followed for the determination of the matters raised by the pleadings. It was, therefore, proper for the judge to determine whether an interest in plaintiff’s property had been taken.

Plaintiff’s remaining assignments of error have been considered and are overruled. The material findings of fact are supported by competent evidence. The facts found support the judgment.

Affirmed.

Judges Martin and Arnold concur.