No. 98.

181 S.E.2d 466 (1971)

279 N.C. 188


Supreme Court of North Carolina.

June 10, 1971.

Attorney(s) appearing for the Case

Millar, Alley & Killian, John I. Jay, Waynesville, for plaintiff appellants.

Atty. Gen. Robert Morgan, Deputy Atty. Gen. R. Bruce White, Asst. Atty. Gen., Andrew McDaniel, for defendant appellee.

SHARP, Justice:

Like any other person whose land is taken by the State Highway Commission for highway purposes, an owner whose access to a public road is a right-of-way over adjoining property is entitled to just compensation when the State deprives him of this easement. Ordinarily, such a taking will be accomplished by the filing of a complaint and a declaration of taking as specified in G.S. 136-103. However, G.S. 136-111 provides that "any person whose land or compensable interest therein" has been appropriated by the Highway Commission without the filing of a complaint and declaration of taking may, "within twenty-four (24) months of the date of said taking," bring an action in the superior court to recover damages for the taking. Thus, although a property owner is always entitled to just compensation when his land is taken for public use, he must pursue the prescribed remedy within the time specified. Wilcox v. Highway Commission, N. C., 181 S.E.2d 435.

In an attempt to circumvent the bar of G.S. 136-111, plaintiffs argue that their right-of-way over the Leatherwood property was not taken on 30 October 1967, the date the fence was erected across it, but on 24 February 1970, the date they allege they first sought to use the easement and were prevented from doing so by the fence. This contention, however, is untenable. The taking occurred when Commission erected the fence, severing the right-of-way and preventing its further use, and not at the time plaintiffs were first inconvenienced by it. The fence was not a temporary structure but a permanent and essential adjunct to a fully controlled-access highway. It was visible and incontrovertible evidence of Commission's intention to appropriate the easement permanently. "`Taking' under the power of eminent domain may be defined generally as entering upon private property for more than a momentary period and, under the warrant or color of legal authority, devoting it to a public use, or otherwise informally appropriating or injuriously affecting it in such a way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof." 26 Am.Jur.2d Eminent Domain § 157 (1966). The foregoing definition was adopted by this Court in Penn v. Carolina Virginia Coastal Corporation, 231 N.C. 481, 484, 57 S.E.2d 817, 819.

The judgment of the Superior Court, which dismissed this action, is



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