Tyson v. State Highway Commission, 249 N.C. 732 (1959)

March 18, 1959 · Supreme Court of North Carolina

249 N.C. 732

CECIL TYSON and wife, HESTER TYSON v. STATE HIGHWAY COMMISSION, MINNIE TYSON WINBORN and husband, ROBERT WINBORN.

(Filed 18 March, 1959.)

Eminent Domain § 11—

In an action by the owner of an interest in lands against 'the 'State Highway Commission to recover compensation for 'the taking of a portion iof the land, .the joinder, as a respondent, of.the owner of the other interest in the land cannot result in a misjoinder of parties and causes, since the action is to enforce a single right to recover compensation, and the joinder of all parties having an interest in the land is required by G.S. 40-12.

Appeal by respondent State Highway Commission from Bone, Resident Judge, in chambers, 1 November 1958. WilsoN.

Special proceeding for recovery of -compensation for lands of petitioners appropriated by respondent for highway purposes, heard upon a demurrer.

A summary of the allegations of the petition follow:

Cecil Tyson is the owner of a farm containing 128.25 acres, and his wife has a dower interest therein. On 1 January 1957 the respondent appropriated a described part of it for ¡highway purposes 'by virtue of ¡the power of eminent domain vested in it by G.S. 40-12 et seq. and G.S. 136-19.

Cecil Tyson was the sole owner of a fee simple title to part of this farm, and was the owner of a one-half undivided interest in the remaining part of the farm. The respondent Minnie Tyson Winbom is the owner of the other one-half interest in the farm as a tenant in common with Cecil Tyson. Robert Winbom is her husband.

Petitioners have been damaged by the talcing of said land and by damage to the remaining land, and have not been compensated by the State Highway Commission.

The petitioners pray that the court -appoint commissioners to appraise the damages sustained by them as a resul-t of the taking of their property by the State Highway Commission, and fix the compensation to which -they are entitled.

The State Highway Commission demurred to the petition on the ground that there is a misjoinder of parties and causes.

The Clerk of the Court overruled the demurrer. On appeal Judge Bone overruled the demurrer, ¡and the State Highway Commission appeals.

Thorp, Spruill, Thorp & Trotter for petitioners, appellees.

Malcolm B. Seawell, Attorney General, Kenneth Wooten, Jr., Assistant Attorney General, Glenn L. Hooper, Jr., Trial Attorney, and Lucas, Rand & Rose for State Highway Commission, appellant.

PER CüRiam.

G.S. 40-12 required the petitioners to state in their petition the names of all parties who own or have, ¡or claim to own or have, estates or interests in the land. The ¡averments in the petition as to the respondents, Winbom, ¡is in compliance with this ¡statute. Petitioners seek no relief of any kind ¡against the Winboms.

According to the allegations of ¡the petition, the petitioners merely seek to enforce a single right, that is, to recover from the State Highway Commission compensation for lands of theirs ¡appropriated by it for highway purposes.

There is no misjoinder of parties and causes, and Judge Bone correctly overruled the demurrer.

Affirmed.