Sampson County and City of Clinton v. Parker Family Real Estate, LLC, 2011 WL 1485259, COA10-588 (N.C. App. Apr. 19, 2011)
This an unpublished opinion involving the the condemnation of an avigation easement for an airport. In this case, the City and County as joint condemnors acquired an avigation easement from the Property Owner Defendant. The case was settled through a consent judgment that vested title to the easement in the Plaintiffs and awarded compensation to the Property Owner.
The judgment incorporated by reference the avigation easement contained in the complaint and declaration of taking, which was
An easement and right-of-way appurtenant to that facility currently known as the Clinton-Sampson Airport Facility for the unobstructed use and passage of all types of aircraft . . . in and through the airspace above [Parker’s] property . . . . This easement and right-of-way hereby grants to [Plaintiffs] the continuing right to prevent the erection or growth upon [Parker’s] property of any building, structure, tree or other object, extending into the airspace above the aforesaid imaginary plane, and to remove from said airspace, or at the sole option of [Plaintiffs], as an alternative, to make and light as obstructions to air navigation any such building, structure, tree or other objects now upon, or which in the future may be upon [Parker’s] property, together with the right of ingress to, egress from, and passage over [the Defendant’s] property for the above purposes.
Importantly in this case, the consent judgment did not require the Property Owner itself to do anything, like keep the avigation easement clear of danger trees (trees extending into the avigation easement).
Condemnor tries to enforce Consent Judgment in order to remove a danger tree
This case was filed in March, 2007 and settled with a consent judgment in February, 2009. In April, 2009, the County and City moved to enforce the consent judgment in order to remove a tree on Defendant’s property which extended into the avigation easement.
The City and County made their motion pursuant to Rule 70 of the North Carolina Rules of Civil Procedure. Under that rule,
[i]f a judgment directs a party to execute a conveyance of land . . . or to perform any other specific act and the party fails to comply within the time specified, the judge may direct the act to be done at the cost of the disobedient party by some other person appointed by the judge. . . . The judge may also in proper cases adjudge the party in contempt. If real or personal property is within the State, the judge in lieu of directing a conveyance thereof may enter a judgment divesting the title of any party and vesting it in others . . . .
As the Court of Appeals noted,
Rule 70 empowers a court to enforce a judgment directing a party to perform a specific act by ordering that the act be done by another party appointed by the judge, by adjudging a party who has failed to perform a directed act to be in contempt, or by entering a judgment divesting title from such a party.
Rule 70 does not permit the court to rule on a motion in the cause to declare the rights of parties to an agreement. The proper procedure for doing so is to file a declaratory judgment action, a separate lawsuit filed pursuant to the North Carolina declaratory judgment statute, N.C. Gen. Stat. §1-254.
Plaintiffs’ motion and Trial Court’s Order “declaring” rights
In this case, the City and County’s motion
request[ed] that the [c]ourt enter an Order declaring that pursuant to the Final Consent Judgment, that Plaintiffs have the right to remove the entire tree if any portion of said tree extends into the Avigation Easement.
At the hearing on the motion, the Trial Court stated, “it looks like it’s more in the nature of a declaratory judgment,” but went on to grant the Plaintiff’s motion, stating,
NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that Plaintiffs’ Motion to Enforce Final Consent Judgment is granted and Plaintiffs, in exercising their rights associated with the Avigation Easement described in the Final Consent Judgment, shall have the right to remove at the ground the entire tree if any portion of said tree extends into the airspace to which the Avigation Easement applies.
The Court of Appeals vacated the Trial Court’s Order
The consent judgment in this case simply awarded the Property Owner an amount of money and vested the title to the easement in the Plaintiffs. It did not order the property owner to do anything.
The Court of Appeals ruled 3-0 to vacate the Trial Court’s Order. The Court of Appeals pointed out that Rule 70 contemplates “enforc[ing] a judgment that directs a party to perform a specific act”, but in this case,
because the consent judgment that is being “enforced” does not direct [the Property Owner] to perform any specific act, Rule 70 is inapplicable.
The Court of Appeals went on to hold that Rule 70 could not be used to have the Trial Court declare the rights of the parties.
Further, and more importantly, Rule 70 is inapplicable because Plaintiffs’ requested relief – which, by its terms, can only be characterized as declaratory in nature – is not the type of relief that can be granted to a party under Rule 70. Although Plaintiffs purported to seek an order pursuant to Rule 70, the order actually sought and obtained was one declaring Plaintiffs’ rights pursuant to the consent judgment. As discussed supra, the relief a court can grant under Rule 70 is limited to (1) ordering an act to be done by another, (2) adjudging a party in contempt, and/or (3) entering a judgment divesting title. N.C. Gen. Stat. § 1A-1, Rule 70. In this case, Plaintiffs sought, and the court granted, none of the relief authorized by Rule 70. Accordingly, the trial court could not have properly entered the judgment requested by Plaintiffs pursuant to Rule 70.
Motion for Specific Performance might have been upheld
The Court of Appeals did not say what procedure would have been effective in this case, but it did discuss the possibility of a motion in the cause to seek specific performance, instead of a declaration of rights. The Court stated,
it appears Plaintiffs may be correct that they were allowed to “seek to enforce” their settlement agreement “by filing a motion in the case.” However, as is obvious from the wording of both Plaintiffs’ motion and the trial court’s order on the motion, the motion filed by Plaintiffs was not a motion seeking specific performance: in their motion, Plaintiffs expressly requested an order “declaring” their rights pursuant to the consent judgment; in its order, the trial court expressly decreed that Plaintiffs “shall have the right to remove at the ground the entire tree” in exercising their rights associated with the easement described in the consent judgment.
Ultimately, however, the Court of Appeals simply noted, “[f]urther proceedings in this matter, if any, must emanate from the fertile imagination of counsel.”
Links to this condemnation case
- PDF slip opinion
- Westlaw direct link (direct link to the case for those with a Westlaw account)