City of Gastonia v. Glenn

11 S.E.2d 459, 218 N.C. 510, 1940 N.C. LEXIS 30

Opinion

Stacy, C. J.

It is provided by O. S., 1716, that in condemnation, the petition, when filed by the condemnor, “must contain a description of the real estate which the corporation seeks to acquire.” This we apprehend means a description of the property sought to be acquired and not merely a description of the entire tract over which the right of way, privilege, or easement is to run. Tbe right o£ way is to be located before it can be taken. It must be fixed and not fugitive. See Johnston County v. Stewart, 217 N. C., 334, 7 S. E. (2d), 708. In other words, to paraphrase a certain parody, “the recipe for taking property in condemnation begins by saying ‘first locate the property.’ ” Such is the statutory requirement in condemning a right of way for a railroad. C. S., 3471; S. v. Wells, 142 N. C., 590, 55 S. E., 210.

' In the present state of the record, we are constrained to reverse the ruling on the demurrer for insufficient description of the property sought to be condemned, with the observation that petitioner may apply to the court below, under C. S., 515, for leave to amend the petition, if so advised. This might have been done in the first instance under 3 C. S., 513. Petty v. Lemons, 217 N. C., 492.

Eeversed.