Newton v. North Carolina State Highway & Public Works Commission

79 S.E.2d 917, 239 N.C. 433, 1954 N.C. LEXIS 375

• Court: Supreme Court of North Carolina
• Decided: January 29, 1954
• Status: Published

Opinion

Ervin, J.

When a landowner initiates a special proceeding to recover compensation from the State Highway and Public Works Commission under the provisions of the statute codified as Gr.S. 136-19, his petition must allege, among other things, facts showing that his land has been taken or damaged for public use without just compensation by the State Highway and Public Works Commission. 30 C.J.S., Eminent Domain, Section 422. The petition in the instant proceeding falls short of this requirement. To be sure, it alleges that the cracks in the lot “are caused by a displacement of the embankment forming the southern side” of the cut through which the by-passing highway runs; that “the displacement of the embankment is the direct and proximate result of the construction” of the by-passing highway by the respondent; and that the damage to the lot, which is “caused solely by the construction of the by-pass,” constitutes a taking of tbe property of the petitioners for public highway use. These allegations state mere legal conclusions. They are not admitted by the demurrer and add nothing to the petition, which does not contain any facts showing how the embankment has been displaced, or how the construction of the by-passing highway effected its displacement. Anderson v. Atkinson, 234 N.C. 271, 66 S.E. 2d 886; Tea Co. v. Hood, Comr., 205 N.C. 313, 171 S.E. 344; Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761; Lane v. Graham County, 194 N.C. 723, 140 S.E. 712; Brick Co. v. Gentry, 191 N.C. 636, 132 S.E. 800; Whitehead v. Telephone Co., 190 N.C. 197, 129 S.E. 602; Horney v. Mills, 189 N.C. 724, 128 S.E. 324; Manning v. R. R., 188 N.C. 648, 125 S.E. 555; Bank v. Bank, 183 N.C. 463, 112 S.E. 11, 22 A.L.R. 1124.

The judgment overruling the demurrer is

Eeversed.