Parker, J.
As far as the record before us discloses no restraining order has ever been entered in this case. However, since the order appealed from apparently assumed that one had been entered and the parties in their briefs and arguments before us have treated the matter as though a restraining order is in effect pending a final determination of this appeal, we have also so considered the matter.
Appellants’ first contention is that the Complaint is insufficient in that it fails to allege that plaintiff has made prior good faith efforts to acquire the land sought to be condemned by negotiated purchase from the defendants, citing such cases as
Hertford v. Harris,
263 N.C. 776, 140 S.E. 2d 420;
Kistler v. Raleigh,
261 N.C. 775, 136 S.E. 2d 78; and
Winston-Salem v. Ashby,
194 N.C. 388, 139 S.E. 764.
Plaintiff City concedes that if the source of its authority to condemn should be the Municipal Corporations Act, G.S., Chap. 160, and particularly G.S. 160-205, or if it should be found in G.S., Chap. 40, entitled “Eminent Domain,” then under the above-cited cases and many others handed down by the North Carolina Supreme Court, prior good faith negotiation is a prerequisite before the City could institute valid condemnation proceedings. The City contends, however, that allegation and proof of its prior good faith attempts to acquire the property by purchase is not required of it in the present case for the reason that the source of its authority to condemn is not found in the general law but in the express grant of that power in its City Charter; that this Charter provision makes no such requirement, but on the contrary expressly authorizes the City, in the exercise of its authority of eminent domain for the acquisition of property to be used for streets, to use the procedure and authority prescribed in G.S., Chap. 136, Art. 9. In paragraph 5 of the Complaint, plaintiff referred to Section 7.81 of the Charter of the City of Charlotte and attached as an exhibit to its Complaint a copy of this Section, which reads in part as follows:
“Section 7.81, Powers and Procedures. ... In the exercise of the power of eminent domain, the city is hereby vested with all power and authority now or hereafter granted by the laws of North Carolina applicable to the City of Charlotte, and the City shall follow the procedures now or hereafter prescribed by said laws; provided, that in the exercise of its authority of eminent domain for the acquisition of property to be used for streets and highways and water and sewer facilities, the City of Charlotte is hereby authorized to use the procedure and authority prescribed in Article 9 of Chapter 136 of the General Statutes of North Carolina, as now or hereafter amended; . . .”
Contrary to its present argument, plaintiff alleged in paragraph 6 of its Complaint that the City Council of the City of Charlotte had determined that it is necessary to condemn defendants’ property “(p)ursuant to the authority vested in the plaintiff under the provisions of G.S. 160-200(1), G.S. 160-204, G.S. 160-205, G.S. 136-103 et seq. . . .” Plaintiff concedes that if the source of its authority to condemn should be found solely in the first three of the cited Sections, which are embodied in the general Municipal Corporation Act, it would have been necessary for its Complaint to contain an allegation that prior to commencing condemnation proceedings it had negotiated in good faith to acquire defendants’ property by purchase and that it had been unable to reach agreement with defendants. Plaintiff contends, however, that by Section 7.81 of its
Charter it is entitled to utilize the procedures set forth in G.S. 136-103, that it has done so in this case, and that the last cited Section expressly sets forth the allegations which must be contained in the Complaint and that this Section does not require any allegation relative to prior good faith attempts to acquire the property of the defendants by negotiated purchase.
We considered a similar contention in the case of
Highway Commission v. Matthis,
2 N.C. App. 233, 163 S.E. 2d 35, decided by this Court 18 September 1968. In that case we held that since the effective date of G.S. 136-103 an allegation of prior good faith attempts to acquire the property by negotiation is not required in a condemnation complaint filed by the
State Highway Commission
in order to show jurisdiction, but that absent such an allegation a complaint otherwise containing the express allegations required by G.S. 136-103 would allege a defective statement of a good cause of action. In that case we held that the defendants having failed to raise the objection by demurrer or other appropriate means, having admitted in their answer the plaintiff’s authority and power to condemn, and having accepted the benefit of the statute by drawing down the funds deposited with the clerk of superior court as estimated fair compensation of their property, could not later raise the question. In the case presently before us, however, the defendants have expressly raised the question in apt time and in an appropriate manner. Therefore, consistent with our holding in
Highway Commission v. Matthis, supra,
we now hold that the Complaint in the present action contains a defective statement of an otherwise good cause of action by reason of its failure to contain any allegation of an attempt to acquire the property by prior good faith negotiations. This was a condition precedent to its having authority to exercise the power of eminent domain. Absent that allegation in the Complaint defendants are entitled to an order restraining plaintiff from taking their property. The plaintiff should be given an opportunity to amend its Complaint if it should feel so advised.
Defendants also contend that the plaintiff is prevented from maintaining this action by the express language of the proviso in Chapter 740 of the Session Laws of 1967. This Chapter is entitled “An Act To Authorize The City of Charlotte To Acquire An Entire Structure When It Is Severed By Street Right Of Way,” and provides in part as follows:
“Section 1. Where the proposed right of way of a street or highway necessitates the taking of a portion of a building or structure, the City of Charlotte may acquire, by condemnation
or purchase, the entire building or structure, together with the right to enter upon the surrounding land for the purpose of removing the building or structure. Provided, the City must make a determination based upon an affidavit of an independent real estate appraiser that the partial taking will substantially destroy the economic value or utility of the building or structure and a determination either
“(1) that an economy in the expenditure of public funds will be promoted thereby; or
“
(2) that it is not feasible to cut off a portion of the building without destroying the entire building; or
“(3) that the convenience, safety or improvement of the street or highway will be promoted thereby;
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Parker, J.
As far as the record before us discloses no restraining order has ever been entered in this case. However, since the order appealed from apparently assumed that one had been entered and the parties in their briefs and arguments before us have treated the matter as though a restraining order is in effect pending a final determination of this appeal, we have also so considered the matter.
Appellants’ first contention is that the Complaint is insufficient in that it fails to allege that plaintiff has made prior good faith efforts to acquire the land sought to be condemned by negotiated purchase from the defendants, citing such cases as
Hertford v. Harris,
263 N.C. 776, 140 S.E. 2d 420;
Kistler v. Raleigh,
261 N.C. 775, 136 S.E. 2d 78; and
Winston-Salem v. Ashby,
194 N.C. 388, 139 S.E. 764.
Plaintiff City concedes that if the source of its authority to condemn should be the Municipal Corporations Act, G.S., Chap. 160, and particularly G.S. 160-205, or if it should be found in G.S., Chap. 40, entitled “Eminent Domain,” then under the above-cited cases and many others handed down by the North Carolina Supreme Court, prior good faith negotiation is a prerequisite before the City could institute valid condemnation proceedings. The City contends, however, that allegation and proof of its prior good faith attempts to acquire the property by purchase is not required of it in the present case for the reason that the source of its authority to condemn is not found in the general law but in the express grant of that power in its City Charter; that this Charter provision makes no such requirement, but on the contrary expressly authorizes the City, in the exercise of its authority of eminent domain for the acquisition of property to be used for streets, to use the procedure and authority prescribed in G.S., Chap. 136, Art. 9. In paragraph 5 of the Complaint, plaintiff referred to Section 7.81 of the Charter of the City of Charlotte and attached as an exhibit to its Complaint a copy of this Section, which reads in part as follows:
“Section 7.81, Powers and Procedures. ... In the exercise of the power of eminent domain, the city is hereby vested with all power and authority now or hereafter granted by the laws of North Carolina applicable to the City of Charlotte, and the City shall follow the procedures now or hereafter prescribed by said laws; provided, that in the exercise of its authority of eminent domain for the acquisition of property to be used for streets and highways and water and sewer facilities, the City of Charlotte is hereby authorized to use the procedure and authority prescribed in Article 9 of Chapter 136 of the General Statutes of North Carolina, as now or hereafter amended; . . .”
Contrary to its present argument, plaintiff alleged in paragraph 6 of its Complaint that the City Council of the City of Charlotte had determined that it is necessary to condemn defendants’ property “(p)ursuant to the authority vested in the plaintiff under the provisions of G.S. 160-200(1), G.S. 160-204, G.S. 160-205, G.S. 136-103 et seq. . . .” Plaintiff concedes that if the source of its authority to condemn should be found solely in the first three of the cited Sections, which are embodied in the general Municipal Corporation Act, it would have been necessary for its Complaint to contain an allegation that prior to commencing condemnation proceedings it had negotiated in good faith to acquire defendants’ property by purchase and that it had been unable to reach agreement with defendants. Plaintiff contends, however, that by Section 7.81 of its
Charter it is entitled to utilize the procedures set forth in G.S. 136-103, that it has done so in this case, and that the last cited Section expressly sets forth the allegations which must be contained in the Complaint and that this Section does not require any allegation relative to prior good faith attempts to acquire the property of the defendants by negotiated purchase.
We considered a similar contention in the case of
Highway Commission v. Matthis,
2 N.C. App. 233, 163 S.E. 2d 35, decided by this Court 18 September 1968. In that case we held that since the effective date of G.S. 136-103 an allegation of prior good faith attempts to acquire the property by negotiation is not required in a condemnation complaint filed by the
State Highway Commission
in order to show jurisdiction, but that absent such an allegation a complaint otherwise containing the express allegations required by G.S. 136-103 would allege a defective statement of a good cause of action. In that case we held that the defendants having failed to raise the objection by demurrer or other appropriate means, having admitted in their answer the plaintiff’s authority and power to condemn, and having accepted the benefit of the statute by drawing down the funds deposited with the clerk of superior court as estimated fair compensation of their property, could not later raise the question. In the case presently before us, however, the defendants have expressly raised the question in apt time and in an appropriate manner. Therefore, consistent with our holding in
Highway Commission v. Matthis, supra,
we now hold that the Complaint in the present action contains a defective statement of an otherwise good cause of action by reason of its failure to contain any allegation of an attempt to acquire the property by prior good faith negotiations. This was a condition precedent to its having authority to exercise the power of eminent domain. Absent that allegation in the Complaint defendants are entitled to an order restraining plaintiff from taking their property. The plaintiff should be given an opportunity to amend its Complaint if it should feel so advised.
Defendants also contend that the plaintiff is prevented from maintaining this action by the express language of the proviso in Chapter 740 of the Session Laws of 1967. This Chapter is entitled “An Act To Authorize The City of Charlotte To Acquire An Entire Structure When It Is Severed By Street Right Of Way,” and provides in part as follows:
“Section 1. Where the proposed right of way of a street or highway necessitates the taking of a portion of a building or structure, the City of Charlotte may acquire, by condemnation
or purchase, the entire building or structure, together with the right to enter upon the surrounding land for the purpose of removing the building or structure. Provided, the City must make a determination based upon an affidavit of an independent real estate appraiser that the partial taking will substantially destroy the economic value or utility of the building or structure and a determination either
“(1) that an economy in the expenditure of public funds will be promoted thereby; or
“
(2) that it is not feasible to cut off a portion of the building without destroying the entire building; or
“(3) that the convenience, safety or improvement of the street or highway will be promoted thereby;
“Provided, further, nothing herein contained shall be deemed to give the City authority to condemn the underlying fee of the portion of any building or structure which lies outside the right of way of any existing or proposed public road, street or highway.”
Defendants contend that since Sixth Street in the City of Charlotte is an existing street and since the 18-foot strip of land here sought to be condemned lies outside of the right-of-way of Sixth Street
as it 'presently exists,
the proviso in the statute operates to prevent the City from condemning the underlying fee to the 18-foot strip needed to widen Sixth Street. So interpreted, the proviso would prevent the condemnation of any property needed to widen any existing street where the property in question is covered by any portion of a building or structure. We do not believe the Legislature intended any such result. Chapter 740 is an enabling Act. Without its enactment the City had full authority to condemn the 18-foot strip which will be within the proposed right-of-way of the widened Sixth Street. Chapter 740 merely clarifies the City’s authority to condemn,
in addition,
the building located on the entire lot of which the 18-foot strip is a part. The proviso was included to show that the grant of authority to condemn the entire building did not extend to permit condemnation of the
underlying fee
to the portion of the building situated over that part of defendants’ lot
outside
of the 18-foot strip. The proviso does not operate, as defendants contend, to deny the City power to widen rights-of-way of existing streets bordered by buildings. To so construe the proviso would defeat the very purpose of the statute and choke the future development of the City. In order to utilize the 18-foot strip which plaintiff here seeks to condemn for street purposes, it is necessary that the entire building on
the entire lot of which the 18-foot strip is a part be demolished. We hold that the plaintiff City is authorized by Chapter 740 of the Session Laws of 1967 to proceed to condemn the entire building, and the proviso in the statute operates merely to make it clear that the City is not given authority to condemn the underlying fee outside of the 18-foot strip, which in any event the City is not here attempting to do.
This case is remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Mallaed, C.J., and Beock, J., concur.