Frank A. JOHNSON and wife, Margie B. Johnson, Farmers Mutual Fire Insurance Association, Randolph County Branch, and H. Wade Yates, Trustee for the Farmers Mutual Fire Insurance Association, Randolph County Branch,
v.
NORTH CAROLINA STATE HIGHWAY COMMISSION.
No. 527.
Supreme Court of North Carolina.
May 1, 1963.*546 Ottway Burton Asheboro, for plaintiffs-appellants.
T. W. Bruton, Atty. Gen., Harrison Lewis, Asst. Atty. Gen., John C. Daniel, Jr., and Andrew McDaniel, Trial Attys., Raleigh, for the State.
DENNY, Chief Justice.
The appellants undertake to challenge for the first time in this Court, the constitutionality of G.S. § 136-108, which reads as follows: "After the filing of the plat, the judge, upon motion and ten (10) days' notice by either the Highway Commission or the owner, shall, either in or out of term, hear and determine any issue raised by the pleadings, other than the issue of damages, including, if controverted, questions of necessary and proper parties, title to the land, interest taken, and area taken."
It is a well established rule of this Court that it will not decide a constitutional question which was not raised or considered in the court below.
In Phillips v. Shaw, Comr. of Revenue, 238 N.C. 518, 78 S.E.2d 314, this Court said: "The question of constitutionality of the Act was not raised in the court below. It may not be raised for the first time in this Court. Woodard v. Clark, 234 N.C. 215, 66 S.E.2d 888; State v. Lueders, 214 N.C. 558, 200 S.E. 22; State v. Cochran, 230 N.C. 523, *547 S.E.2d 663; Wachovia Bank & Trust Co. v. Waddell, 237 N.C. 342, 75 S.E.2d 151; 11 A.J. 720." See also State v. Jones, 242 N.C. 563, 89 S.E.2d 129; State v. Grundler, 251 N.C. 177, 111 S.E.2d 1; Lane v. Iowa Mutual Insurance Co., 258 N.C. 318, 128 S.E.2d 398.
The only other question presented on this appeal is whether or not the exhibits alone, which constituted the only evidence introduced by the defendant with respect to the area of land taken in connection with Project 5.572 and the location of the previously granted right of way, were sufficient to sustain the findings of the court below in this respect.
As we construe the statutes governing this type of action, an answer not served on the opposing party (according to the record, defendant's answer was not served on the plaintiffs), is deemed denied as to all affirmative allegations therein. Exhibits "A" and "B" were incorporated in the defendant's answer and made a part thereof.
Therefore, in our opinion, since the plaintiffs alleged that the defendant Highway Commission had taken from them, in connection with the relocation and construction of Project 5.572, the area shown on the defendant's map Exhibit "B" in blue, as well as the area shown in green, the burden was upon the defendant to establish by competent evidence that the area shown on said map in green lies wholly within the 60-foot right of way as it existed along Johnson Road after it was taken over by the Highway Commission in 1957 and before the road was relocated and reconstructed under Project 5.572. When the correct location of the previously granted right of way has been properly ascertained, the plaintiffs having waived the appointment of commissioners, the case will be tried before a jury on the issue of damages for the additional land taken.
Error and remanded.