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Lea Co. v. North Carolina Board of Transportation

Filed: June 1, 1982.

LEA COMPANY
v.
NORTH CAROLINA BOARD OF TRANSPORTATION



Appeal by defendant from McLelland, Judge. Judgment entered 3 November 1980 in Superior Court, Guilford County. Heard in the Court of Appeals 10 February 1982.

Whichard, Judge. Judges Clark and Arnold concur.

Whichard

Consent Judgment

Defendant contends the action is barred by a prior consent judgment in which it agreed to pay for the taking of a small portion of plaintiff's property, including fee simple title to a right of

way and a temporary construction easement. It argues that because "compensation paid for the taking of property includes . . . the effects on the remaining property should only a portion be taken," see G.S. 136-112(1)(1981), the subsequent damage by flooding to the remainder of plaintiff's property was encompassed by the prior consent judgment, which expressly included "any and all damages caused by the construction of said project." It specifically argues that the project number involved in the consent judgment gave plaintiff notice that damages from construction responsible for the instant flooding were included in that condemnation action.

The trial court made the following pertinent findings of fact:

13. The condemnation action referred to above [the prior action in question] was concluded by the execution and filing of a consent judgment. . . .

14. The complaint, notice and declaration of taking and the consent judgment referred the defendants in that action, who are the general partners of the plaintiff in this action, solely to . . . highway project no. 8.1533802.

15. The complaint and the notice and declaration of taking had attached to them a map showing the area of the taking. This map did not show Ramp A, Y-3 or Ramp B [the areas in question here] as being involved in the condemnation proceeding.

16. The highway project numbers assigned by defendant to the construction of Ramp A and the construction of the extensions to Y-3 and Ramp B were 8.1533804 and 8.133805, respectively.

17. The property taken was not adjacent to or near the area of Ramps A, B and Y-3.

Because the trial was by a judge without a jury, "the court's findings of fact have the force and effect of a verdict by a jury and are conclusive on appeal if there is evidence to support them, even though the evidence might sustain findings to the contrary." Williams v. Insurance Co., 288 N.C. 338, 342, 218 S.E.2d 368, 371 (1975); see also Worthington v. Worthington, 27 N.C. App. 340, 219 S.E.2d 260 (1975), disc. rev. denied, 289 N.C. 142, 220 S.E.2d 801

(1976). We find ample competent evidence in the record to support the foregoing findings, and they thus are conclusive on this appeal.

These findings suffice to support the following pertinent conclusions of law:

1. Neither the description of the highway project in the condemnation complaint and notice of taking initiated by the defendant, . . . nor the description of this project in the consent judgment which concluded the action provided plaintiff in this action . . . any notice that the general release contained in the consent judgment referred to or covered damages caused by construction associated with . . . the numbers of the projects of which plaintiff now complains.

2. The doctrines of res judicata, estoppel, or law of the case do not bar plaintiff from bringing the instant action by reason of the prior consent judgment.

3. The language in the consent judgment "for any and all damages caused by the construction of that project" as a matter of law cannot be construed to preclude a claim by [plaintiff] rising from construction other than on or directly affecting the plaintiff's property which was taken or which lies directly adjacent to the property taken. Whatever the project numbers that may have been recited, the language relied on by defendant cannot be construed to have included, within the necessary contemplation of the parties to the consent judgment, any damages arising from construction away from [plaintiff's] property.

We thus overrule defendant's assignments of error relating to the prior consent judgment.

Easement For Flooding

Defendant contends the court erred in concluding that it took an easement for flooding by placement of its highway structures.

In order to create an enforceable liability against the government it is, at least, necessary that the overflow of water be such as [1] was reasonably to have been anticipated by the government, [2] to be the direct result of the structure established and maintained by the government, and [3] constitute

an actual permanent invasion of the land, or a right appurtenant thereto, amounting to an appropriation of and not merely an injury to the property.

Midgett v. Highway Commission, 260 N.C. 241, 248, 132 S.E.2d 599, 607 (1963) [hereinafter Midgett I ]. We hold that the flooding here was ...


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