JOHNSON, Judge.
I
Most of the material facts in this case are not in dispute and have been stipulated to by the parties. On appeal, however, plaintiff excepts to and assigns as error the finding by the trial court that the deletion of Oberlin Road from the State highway system by the Board of Transportation “was premised upon the city’s assertion that the requested deletions were the result of ‘annexation or changing of municipal corporate limits.’ ” The city contends that this finding is not supported in the record by competent, substantial and material evidence. Our review of the record on appeal shows this contention to be without merit. The following stipulation appears in the record:
28. June 8, 1979. The North Carolina State Board of Transportation voted to remove Oberlin Road from Hillsborough Street to Clark Avenue from the State Highway System. Board minutes indicate that Administrator Rose stated that the deletions acted upon were the result of annexation and changing municipal corporate limits.
Also in the record is the testimony in narrative form of James Blackburn, Transportation Director for plaintiff City of Raleigh and an expert in the field of transportation. Upon direct examina[631]*631tion by defendant, Mr. Blackburn testified as an adverse witness as follows:
Oberlin is a State designated highway at this point from Clark Avenue north to Wade Avenue. And the inclusion of a municipal highway in the state system does indicate it’s important both as an integral part of the State traffic network as well as a municipal collector.
And in the process of the submission that was made to the State of North Carolina [the city] indicated that there were a number of deletions being requested as a result of changing municipal boundaries. This deletion was not the result of changing municipal boundaries, so that statement was incorrect, and it was not the result of an annexation, so that statement also was incorrect. . . .
It is well established in North Carolina that the trial court’s findings of fact in a non-jury trial are conclusive on appeal if supported by any competent evidence. Williams v. Insurance Co., 288 N.C. 338, 218 S.E. 2d 368 (1975); Alpar v. Weyerhaeuser Co., 20 N.C. App. 340, 201 S.E. 2d 503, cert. denied, 285 N.C. 85, 203 S.E. 2d 57 (1974). Here, plaintiff attempts to discount the evidentiary value of the stipulation and testimony by referring to them as “scraps” of “inconsequential” and “circumstantial” evidence. Regardless of plaintiffs characterization of it, the evidence in the record is uncontradicted. Furthermore, plaintiff has failed to show how the evidence is incompetent, immaterial, or insubstantial. We, therefore, overrule plaintiffs contention and hold that the trial court’s finding of fact is supported by the evidence.
II
The remaining questions in this appeal deal with the application of the law to the established facts. In this respect, plaintiff excepts to and assigns as error certain of the court’s conclusions of law on the grounds that they are not supported by the findings of fact. Specifically, plaintiff argues (1) that the trial court’s conclusions with respect to the city’s legal rights and obligations are based on incorrect interpretations of the law, and (2) that, in any event, the facts do not support the court’s conclusions that the plaintiff did not act in conformity with the law. Therefore, plain[632]*632tiff contends the trial court incorrectly granted defendant’s motion to dismiss.
Defendant contends that the trial court correctly applied the law to the facts found and that the conclusions drawn warranted the judgment of dismissal. Defendant also argues that the trial court correctly concluded that the effect of the 5 December 1980 judgment was to require the city to comply with G.S. 136-66.3 and reach an agreement with the Department of Transportation and that this was the only means then available to the city for proceeding with the Oberlin-Ferndell project.
a.
The arguments of both parties present for our review the single question of whether the facts support the conclusions of law.
We first consider the legal effect of the 5 December 1980 judgment dismissing plaintiff s initial action. The trial court in the instant proceeding concluded that the prior judgment was res judicata with respect to the present action and that the city was required thereby to comply with G.S. 136-66.3 and reach an agreement with the state before proceeding with the Oberlin-Ferndell project. Plaintiff does not contest the res judicata effect of the prior judgment, but maintains that it is misapplied in the present context. We do not agree.
General Statute 136-66.3(a) reads as follows:
When any one or more street construction or improvement projects are proposed on the State highway system in and around a municipality, the Department of Transportation and the municipal governing body shall reach agreement on their respective responsibilities for the acquisition and cost of rights of way necessary for such project or projects.
The court in the prior judgment concluded that G.S. 136-66.3 applied in that action because, at the time the action was commenced, the segment of Oberlin Road involved was part of the State highway system. That prior judgment found and concluded that the purported deletion of Oberlin Road from the State highway system was ineffectual with respect to that action. No appeal was taken from the dismissal of that action and its validity [633]*633is not being challenged here. Therefore, it is res judicata. Assuming, then, that the 5 December 1980 judgment correctly concluded that Oberlin Road remained in the State highway system, the further requirement that the city reach an agreement with the Department of Transportation before proceeding with any work on the Oberlin-Ferndell project was the correct application of the law. But see Armbrister v. City of Norman, 344 P. 2d 665 (Okla. 1959) (statute authorizing agreement between city and state does not require such an agreement where improvements to a state highway system street within a municipality are funded entirely by the city). Since the city had not entered into an agreement with the state prior to initiating the first condemnation action, on the basis of the statute, that action was properly dismissed.
b.
We next consider plaintiffs exceptions to the trial court’s conclusions of law that the prior judgment, in addition to dismissing the first condemnation action, had the further effect of precluding the city from choosing alternatives other than reaching a formal agreement with the Department of Transportation pursuant to G.S. 136-66.3 before proceeding with the OberlinFerndell project. This may indeed be the practical effect of the prior judgment, as defendant contends. However, our interpretation of that judgment and review of the record in this appeal discloses no factual or legal foundation for either the trial court’s conclusion or defendant’s contention. While the prior judgment is res judicata, we interpret it as controlling only in the event and to the extent that Oberlin Road continued to be a part of the State highway system within a municipality.
Free access — add to your briefcase to read the full text and ask questions with AI
JOHNSON, Judge.
I
Most of the material facts in this case are not in dispute and have been stipulated to by the parties. On appeal, however, plaintiff excepts to and assigns as error the finding by the trial court that the deletion of Oberlin Road from the State highway system by the Board of Transportation “was premised upon the city’s assertion that the requested deletions were the result of ‘annexation or changing of municipal corporate limits.’ ” The city contends that this finding is not supported in the record by competent, substantial and material evidence. Our review of the record on appeal shows this contention to be without merit. The following stipulation appears in the record:
28. June 8, 1979. The North Carolina State Board of Transportation voted to remove Oberlin Road from Hillsborough Street to Clark Avenue from the State Highway System. Board minutes indicate that Administrator Rose stated that the deletions acted upon were the result of annexation and changing municipal corporate limits.
Also in the record is the testimony in narrative form of James Blackburn, Transportation Director for plaintiff City of Raleigh and an expert in the field of transportation. Upon direct examina[631]*631tion by defendant, Mr. Blackburn testified as an adverse witness as follows:
Oberlin is a State designated highway at this point from Clark Avenue north to Wade Avenue. And the inclusion of a municipal highway in the state system does indicate it’s important both as an integral part of the State traffic network as well as a municipal collector.
And in the process of the submission that was made to the State of North Carolina [the city] indicated that there were a number of deletions being requested as a result of changing municipal boundaries. This deletion was not the result of changing municipal boundaries, so that statement was incorrect, and it was not the result of an annexation, so that statement also was incorrect. . . .
It is well established in North Carolina that the trial court’s findings of fact in a non-jury trial are conclusive on appeal if supported by any competent evidence. Williams v. Insurance Co., 288 N.C. 338, 218 S.E. 2d 368 (1975); Alpar v. Weyerhaeuser Co., 20 N.C. App. 340, 201 S.E. 2d 503, cert. denied, 285 N.C. 85, 203 S.E. 2d 57 (1974). Here, plaintiff attempts to discount the evidentiary value of the stipulation and testimony by referring to them as “scraps” of “inconsequential” and “circumstantial” evidence. Regardless of plaintiffs characterization of it, the evidence in the record is uncontradicted. Furthermore, plaintiff has failed to show how the evidence is incompetent, immaterial, or insubstantial. We, therefore, overrule plaintiffs contention and hold that the trial court’s finding of fact is supported by the evidence.
II
The remaining questions in this appeal deal with the application of the law to the established facts. In this respect, plaintiff excepts to and assigns as error certain of the court’s conclusions of law on the grounds that they are not supported by the findings of fact. Specifically, plaintiff argues (1) that the trial court’s conclusions with respect to the city’s legal rights and obligations are based on incorrect interpretations of the law, and (2) that, in any event, the facts do not support the court’s conclusions that the plaintiff did not act in conformity with the law. Therefore, plain[632]*632tiff contends the trial court incorrectly granted defendant’s motion to dismiss.
Defendant contends that the trial court correctly applied the law to the facts found and that the conclusions drawn warranted the judgment of dismissal. Defendant also argues that the trial court correctly concluded that the effect of the 5 December 1980 judgment was to require the city to comply with G.S. 136-66.3 and reach an agreement with the Department of Transportation and that this was the only means then available to the city for proceeding with the Oberlin-Ferndell project.
a.
The arguments of both parties present for our review the single question of whether the facts support the conclusions of law.
We first consider the legal effect of the 5 December 1980 judgment dismissing plaintiff s initial action. The trial court in the instant proceeding concluded that the prior judgment was res judicata with respect to the present action and that the city was required thereby to comply with G.S. 136-66.3 and reach an agreement with the state before proceeding with the Oberlin-Ferndell project. Plaintiff does not contest the res judicata effect of the prior judgment, but maintains that it is misapplied in the present context. We do not agree.
General Statute 136-66.3(a) reads as follows:
When any one or more street construction or improvement projects are proposed on the State highway system in and around a municipality, the Department of Transportation and the municipal governing body shall reach agreement on their respective responsibilities for the acquisition and cost of rights of way necessary for such project or projects.
The court in the prior judgment concluded that G.S. 136-66.3 applied in that action because, at the time the action was commenced, the segment of Oberlin Road involved was part of the State highway system. That prior judgment found and concluded that the purported deletion of Oberlin Road from the State highway system was ineffectual with respect to that action. No appeal was taken from the dismissal of that action and its validity [633]*633is not being challenged here. Therefore, it is res judicata. Assuming, then, that the 5 December 1980 judgment correctly concluded that Oberlin Road remained in the State highway system, the further requirement that the city reach an agreement with the Department of Transportation before proceeding with any work on the Oberlin-Ferndell project was the correct application of the law. But see Armbrister v. City of Norman, 344 P. 2d 665 (Okla. 1959) (statute authorizing agreement between city and state does not require such an agreement where improvements to a state highway system street within a municipality are funded entirely by the city). Since the city had not entered into an agreement with the state prior to initiating the first condemnation action, on the basis of the statute, that action was properly dismissed.
b.
We next consider plaintiffs exceptions to the trial court’s conclusions of law that the prior judgment, in addition to dismissing the first condemnation action, had the further effect of precluding the city from choosing alternatives other than reaching a formal agreement with the Department of Transportation pursuant to G.S. 136-66.3 before proceeding with the OberlinFerndell project. This may indeed be the practical effect of the prior judgment, as defendant contends. However, our interpretation of that judgment and review of the record in this appeal discloses no factual or legal foundation for either the trial court’s conclusion or defendant’s contention. While the prior judgment is res judicata, we interpret it as controlling only in the event and to the extent that Oberlin Road continued to be a part of the State highway system within a municipality. Insofar as the trial court’s conclusions of law in the present action are inconsistent with that interpretation, they are incorrect and plaintiffs assignments of error with respect to them are well taken.
We note also that G.S. 136-66.3, by its own terms, applies to “construction or improvement projects . . . proposed on the State highway system in and around municipalities.” It does not apply to streets within municipalities that are not part of the State highway system or that have been properly deleted therefrom. This is consistent with plaintiff s contention that obtaining a deletion was a viable alternative to reaching an agreement with the Department of Transportation, pursuant to G.S. 136-66.3. This [634]*634alternative remained available to the city after the entry of the prior judgment. A contrary holding would simply lack legal or logical support. See generally Annot., 144 A.L.R. 307 (1943); 63 C.J.S., Municipal Corporations, § 1044.
Ill
The city excepts to and assigns as error those portions of the findings of fact and conclusions of law that hold that its actions in obtaining the deletion of the one block segment of Oberlin Road from the State highway system were improper and constituted an abuse of discretion. The city contends that its request for the deletion was a routine procedure undertaken in good faith as an alternative to an agreement with the Department of Transportation. We have already determined that the court correctly found from the evidence that the deletion was premised on annexation. We now consider whether this finding of fact warrants the conclusions of law that the city’s actions in obtaining the deletion were improper.
We note at the outset that the statutes are not explicit with regard to the proper procedure for obtaining the deletion of municipal roads from the State highway system. Our research has disclosed no administrative regulations on this point and no directly applicable authority has been cited by either party. We therefore look to the language of the various statutes.
General Statute 136-66.1, dealing with the division of responsibility for streets within municipalities, reads in pertinent part, as follows:
(1) The State Highway System. —The State highway system inside the corporate limits of municipalities shall consist of a system of major streets and highways necessary to move volumes of traffic efficiently and effectively from points beyond the corporate limits of the municipalities through the municipalities and to major business, industrial, governmental and institutional destinations located inside the municipalities.... [T]he respective responsibilities of the Department of Transportation and the municipalities for the acquisition and cost of rights-of-way for State highway system street improvement projects shall be determined by mutual agreement between the Department of Transportation and each municipality.
[635]*635General Statute 136-66.2, dealing with the development of a coordinated street system, reads as follows:
(a) Each municipality, with the cooperation of the Department of Transportation, shall develop a comprehensive plan for a street system that will serve present and anticipated volumes of vehicular traffic in and around the municipality. . . .
(b) ... As a part of the plan, the governing body of the municipality and the Department of Transportation shall reach an agreement as to which of the existing and proposed streets and highways included in the plan will be a part of the State highway system and which street will be a part of the municipal street system.
The pertinent language of G.S. 136-66.3 had been quoted above.
When read together, these statutes indicate that a municipal street or road is included within the State highway system because it possesses certain characteristics that distinguish it from other streets in the municipality. From the language in the applicable statutes, these characteristics relate primarily to the function served by the particular street. In contrast, public roads not within municipalities are part of the State highway system not because of their function, but because of their geographical location outside the corporate limits of a municipality. Thus, there is a qualitative distinction between roads which are a part of the State highway system because they are not within a municipality and roads which are in a municipality but are nevertheless part of the State highway system because of the function they serve. It follows logically that the reasons justifying deletion of a street from the state system and incorporating it into a municipal system will vary according to the reasons why it was in the state system to begin with. See generally, Annot., 144 A.L.R. 307, supra.
The evidence here shows that the one block segment of Oberlin Road between Hillsborough Street and Clark Avenue was included in a list of other streets with respect to which the City of Raleigh was seeking deletion from the State highway system because they were in areas that had recently been annexed or otherwise been made part of the city. Since 1965, Oberlin Road has been part of the State highway system. It was included [636]*636therein at the request of the city presumably because it bears the functional characteristics specified in G.S. 136-66.1. Indeed, the Oberlin-Ferndell project is designed to improve the functional efficiency of the Oberlin-Pullen north-south traffic corridor.
However, the fact that Oberlin Road was functionally distinct from the other streets and roads with respect to which deletion was sought was nowhere noted in the request for deletion made to the Board of Transportation or on the list of roads that were the subject of the request. The Board acted on the requested deletions on the mistaken premise that the roads listed in the request were in areas that had been annexed. Clearly, on the basis of these facts, the deletion of Oberlin Road was based on erroneous information.
The city points out that the law presumes that a public official or governing body will discharge its duty in a regular manner and act within its delegated authority. Electric Membership Corp. v. Alexander, 282 N.C. 402, 192 S.E. 2d 811 (1972); In re Housing Authority, 233 N.C. 649, 65 S.E. 2d 761 (1951). The law also presumes that the public official will act in good faith. Housing Authority v. Wooten, 257 N.C. 358, 126 S.E. 2d 101 (1962). These presumptions favoring the propriety of official acts may be overcome by evidence of irregularity or failure to perform an official duty properly. In re Annexation Ordinance, 284 N.C. 442, 202 S.E. 2d 143 (1974). Where, as here, the act involves an exercise of discretion, the courts will not interfere with an official action unless there is a clear showing of an abuse of discretion. Sykes v. Belk, 278 N.C. 106, 179 S.E. 2d 439 (1971); see generally 10 Strong’s N.C. Index 3d, Public Officers, §§ 8, 8.1 (1977); 3 McQuillan, Municipal Corps. 3d, § 12.126 (1982).
The city maintains that the requested deletion of Oberlin Road from the State highway system was a routine matter undertaken in good faith. Yet, as made, the request completely ignores the important functional distinction between Oberlin Road and the other roads on the list, all of which were in areas that had recently been made part of the city. For the reasons set forth above, this functional distinction, provided for by law, warrants consideration when requests are made at least so that the deletions, if granted, will be premised on the proper grounds.
[637]*637Since the city’s request for the deletion of Oberlin Road from the State highway system was a discretionary act, the city is presumed to have acted in good faith. In re Annexation Ordinance, supra. Good faith in this context required the city to furnish to the Board of Transportation sufficient information to allow it to make a proper decision. The facts, however, show that the information provided was either erroneous or insufficient. Whether by design or neglect, the city has failed to properly execute its duty under the law and has thereby manifestly abused its discretion. The trial court’s conclusions in this regard are correct and plaintiffs assignments of error are overruled. Except insofar as modified above, the judgment appealed from is affirmed.
IV
Because we have affirmed the judgment of the trial court and have found no error prejudicial to defendant, we need not consider any of the arguments brought forward in defendant’s cross-appeal. Rule 10(d), N.C. Rules App. Proc. (Cum. Supp., 1981).
Affirmed.
Judges WHICHARD and EAGLES concur.