State Highway Commission v. Cape, 49 N.C. App. 137

State Highway Commission v. Cape

49 N.C. App. 137 | N.C. Ct. App. | 1980

CLARK, Judge.

The defendant asserts that the trial court erred in treating the consolidated cases as one case and the two separate tracts as one tract of land. We agree.

It was error for the trial judge to sign and enter the judgment when the issue of just compensation due for each of the tracts had not been finally adjudicated and determined. Our Supreme Court comments:

‘“Can the court, by consent, enter a fragmentary judgment settling a part of the case and leave part of the issues to be settled at a later date or in another action? A judgment is conclusive as to all issues raised by the pleadings. When issues are presented it is the duty of the court to dispose of them. Parties, even by agreement, cannot try issues piecemeal. The courts and the public are interested in the finality of litigation. . .. Horne v. Edwards, 215 N.C. 622, 3 S.E. 2d 1. “The law requires a lawsuit to be tried as a whole and not as fractions. Moreover, it contemplates the entry of a single judgment which will completely and finally determine all the rights of the parties.” Erickson v. Starling, 235 N.C. 643, 71 S.E. 2d 384. ... “Appellate procedure is designed to eliminate the unnecessary delay and expense of repeated fragmentary appeals, and to present the whole case for determination in a single appeal from a final judgment.”’ Hicks v. Koutro, 249 N.C. 61, 105 S.E. 2d 196.”

McLean Trucking Co. v. Dowless, 249 N.C. 346, 351, 106 S.E. 2d 510, 514 (1959).

*140The judgment rendered does not finally adjudicate the compensation due in each of the cases. The judgment provides that the sum awarded the defendants should be disbursed to the defendants “as their interests may appear,” yet the respective interests of Cape and Green are not identical in 73CVS59 and 72CVS4. While determination of these respective interests is possible, there must be some specific res to which the interests can be applied. From the judgment it is absolutely impossible to determine how much of the $11,400 is assignable solely to Cape as compensation for the State’s taking of the tract on the west side of Talulah Creek, which he owned individually, and how much of the compensation must be shared by Cape with Green as tenants-in-common in the tract east of the creek. A judgment which is uncertain and incapable of execution will not stand. Barham v. Perry, 205 N.C. 428, 171 S.E. 614 (1933).

The State cites G.S. 136-117 as support for its position that the judge could order the total compensation paid into court, “retain[ing] said cause for determination of who is entitled to said moneys ... .” That statute is directed at “adverse and conflicting claims” to a specific sum. The specific sum to which this statute would apply in the case subjudice could only be the amount allocable to the tract in 72CVS4, since it is undisputed that Cape had sole ownership of the tract at issue in 73CVS59; yet no specific sum allocable to 72CVS4 was determined. Moreover, G.S. 136-117 applies only to “adverse and conflicting claims,” yet the rights of one tenant-in-common are not adverse to, nor do they conflict with, the rights of another tenant-in-common.

We hold that where the trial court consolidates two cases concerning distinct tracts of land, and there is no unity of ownership, the judgment awarding damages and compensation for a taking must apportion the sum between the two distinct tracts. We note that had this been done, it would be possible to pay out the compensation for the tract taken in 73CVS59 to Cape “and then to apportion [the value of property taken in 72CYS4] among the several owners according to their respective interests or estates ... .” Barnes v. Highway Commission, 257 N.C. 507, 520, 126 S.E. 2d 732, 742 (1962). From the foregoing discussion it follows a fortiori that any treatment of the two tracts as a single unit was error. The trial court should have *141required the two experts to testify not to the total value of the two tracts as a unit, but to the value of each individual tract. The trial court should have instructed the jury to consider the two tracts as distinct and under separate ownership. The trial court should have submitted two separate issues to the jury concerning the respective values of each of the distinct tracts.

Since there was no unity of ownership in the two distinct tracts of land, the total sum awarded by the jury cannot be determined and apportioned by the court. The owner or owners of each tract must be justly compensated for the taking by the jury. Thus, since we cannot remand for apportionment of the total sum awarded by the jury among the owners, we order a new trial or trials on the issue of just compensation for each tract taken by the State.

Reversed and Remanded.

Judges Martin (Harry C.) and Hill concur.