Shute v. City of Monroe

187 N.C. 676

• Court: Supreme Court of North Carolina
• Decided: May 7, 1924
• Status: Published

Opinion

Clarkson, J.

Before passing on the main questions presented, by this appeal, it is meet and proper to consider a matter appearing from the record that is of supreme importance — the taking of plaintiff’s land, to be used as a part of Charlotte Avenue, without just compensation.

From the record it does not appear that this matter has been finally adjudicated. The record shows that the board of aldermen, on 14 July, 1922, unanimously adopted the following ordinance:

“Ordinance opening Charlotte Avenue.

“The Board of Aldermen of the City of Monroe, N. C., do ordain:

“1. That a public street, 40 feet wide, to be called Charlotte Avenue, be laid out and opened from a point on Bear Skin Creek, in the northern boundary of the city limits, and running in a southerly direction, passing under the two new underpasses of the Seaboard .Air Line Railway Company, to Jefferson Street at a point west of Stewart Street, said street to be laid out according to the plan and specifications o£ tbe State Highway Commission and as shown on a blueprint made by said State Highway Commission.

“2. Be it further ordained, that the land covered by said street be and- the same is hereby condemned and appropriated for the uses and purposes of a public street.

“3. That Alderman James W. Fowler be empowered and directed to negotiate with the owners of the land covered by said avenue with a view of getting deeds for said land, and in case said James W. Fowler cannot reach an agreement with the owners of the land, then and in that event the city clerk is authorized and required to issue notice to such owner who fails to agree with the city, notifying such owner to select an arbitrator as provided in section 22 of chapter 352 of the Private Laws of 1899.”

Section 22, supra, is as follows: “That the board of aldermen shall have power to lay out, open and name any street or streets within the corporate limits of said city whenever by them deemed necessary, and shall have power to widen, enlarge, change, extend or discontinue any street or streets or any part thereof within the corporate limits, and shall have full power and authority, for the purposes herein expressed, to condemn, appropriate or use any land or lands within said city, upon making reasonable compensation to the owner or owners thereof; and in case the owner or owners of any land which shall be condemned, appropriated or used under the provisions of this act, and the board of aldermen shall fail to agree iipon the compensation for such land, the matter shall be settled by arbitrators, who shall be freeholders and residents of said town, and shall be chosen by the parties — one by the aider-men and the other by the owner of said land; and in case the owner of such land shall fail or refuse, upon notice given, to choose such arbitrator, then the mayor of said city shall select one in his stead; and in case the two chosen as aforesaid cannot agree, they shall select an umpire, whose duty it shall be to examine the land condemned and ascertain the damages sustained and the benefits accruing to the owner in consequence of the change; and the award of the arbitrators and umpire, or any two of them, shall be conclusive of the rights of the parties, and shall vest in the city of Monroe the right to use the land for the purpose herein specified; and all damages agreed upon by the parties or awarded by the arbitrators, in case of disagreement, shall be paid by taxation or as other liabilities of the corporation: Provided, that either ■ party may appeal to the Superior Court as now provided by law.”

The ifiaintifFs contention in the complaint is that this was done without authority of law. The proceeding before the board of aldermen to condemn this land was started in accordance with law, but it is nowhere shown that tbe matter bas been completed in accordance witb section 22, supra. Tbe plaintiff’s rights in this matter are well settled in this State.

It was said in Parks v. Comrs., 186 N. C., 498: “Where tbe Legislature bas prescribed a method of procedure, tbe statute on tbe subject must ordinarily be followed.” From tbe record, tbe condemnation of plaintiff’s land was commenced under tbe procedure prescribed by tbe statute, but not completed according to tbe statute.

Tbe Anglo-Saxon bolds no material thing dearer than tbe ownership of land; bis home is termed bis “castle.” Although there is nothing in tbe Constitution of North Carolina that expressly prohibits tbe taking of private property for public use without compensation (tbe clause in tbe United States Constitution to that effect applies only to acts by tbe United- States and not to government of tbe State), yet tbe principle is so grounded in natural equity and justice that it is a part of tbe fundamental law of this State that private property cannot be taken for public use without just compensation. Johnston v. Rankin, 70 N. C., 555.

In tbe instant case tbe statute of tbe city of Monroe provides tbe method, and this must ordinarily be followed. Tbe Legislature bas granted this power, and we can only follow tbe mandate in tbe manner and way set forth in tbe act. Long v. Rockingham, ante, 204.

Now, tbe main question presented by this case is: Is tbe assessment on plaintiff’s land for tbe improvement and pavement of Charlotte Avenue in accordance witb law and valid and binding on tbe plaintiff ? We think it is.

Tbe preamble of tbe State Highway Act (chapter 2, Public Laws 1921) is as follows: “An act to provide for tbe construction and maintenance of a State system of bard-surfaced and other dependable roads connecting by tbe most practicable routes tbe various county-seats and other principal towns of every county 'in tbe State, for tbe development of agriculture, commercial and industrial interests of tbe State, and to secure benefits of Federal aid therefor, and for other purposes.”

Section 16 of this act is as follows: “That when any portion of tbe State highway system shall run through any city or town of more than three thousand inhabitants, according to tbe last United States census, tbe streets of which in some considerable part shall have been paved or bard-surfaced prior to such highway construction, and it shall be found necessary to connect tbe State highway system witb such improved streets as may be designated as part of such system, tbe State Highway Commission shall bear tbe entire cost of constructing such connecting links, tbe same to be uniform in dimensions and materials witb such State highways, unless such city or town shall voluntarily assume and undertake tbe improvement of tbe streets forming such connecting links according to specifications approved by tbe State Highway Commission. Iii all other cases of improving streets of cities and towns of over three thousand population embraced in the State highway system the entire cost of construction shall be borne by the cities and towns traversed by such highways: Provided, however, in extraordinary cases, or when the conditions, in the opinion of the State Highway Commission, justify it, said commission may in its discretion relieve any city or town of any or all of the cost of the construction of said road through said city or town, or may impose such conditions upon or make such arrangements with said city or town in connection with the construction of said road as in its discretion may seem wise and just, under all the facts and circumstances in connection therewith: Provided further, that whenever any street designated as part of the State highway system shall be surfaced by order of the State Highway Commission at the expense, in whole or in part, of a city or town, it shall be lawful for the governing body of such city or town to declare an assessment district as to the street to be improved, without petition by the owners of property abutting thereon, and to charge the proportionate cost thereof to such property.

“Notice shall be given such incorporated cities or towns by the State Highway Commission of hard-surfacing work to be done within their corporate limits, and on streets that are links in the State highway system, and said notice shall also set'forth a reasonable time as to when said work shall be completed: Provided, that if said city or town fails to do work or fails to complete same within the time specified 'or within the requirements of the State Highway Commission, then it shall be the duty of the State Highway Commission to take over said work, charging all expenses incurred therefor, which are properly chargeable under this section, to said city or town, subject, however, to the foregoing provisos and conditions.”

From a careful reading of section 16, supra, and the preamble to the State Highway Act, we conclude that the following is, in substance, a just interpretation of its meaning:

That it was necessary that the State highway system have the connecting links built through the cities and towns of the State to make a complete State system of hard-surfaced and dependable roads connecting by the most practicable routes the various county-seats and other principal towns of the State, for the development of agriculture, commercial and industrial interests of the State.

In cities or towns of over three thousand inhabitants, according to the last United States census, two provisions are made to build the hard-surfaced roads through these cities and towns as a connecting link in the system:

(1) In the cities and towns the streets of which in some considerable pari shall have been paved or hard-surfaced prior to such construction, and it stall be found necessary to connect tbe State highway system with snch improved streets as may be designated as part of such system, the State Highway Commission shall bear the entire cost of constructing such connecting links, unless such city or town shall voluntarily assume and undertake the improvement of the streets forming such connecting links.

(2) In all other cases of improving streets of cities and towns of over three thousand population, embraced in the State highway system, the entire cost of construction shall be borne by the cities or towns traversed by such highways.

In extraordinary cases, or when the conditions, in the opinion of the State Highway Commission, justify it, the commission may in its discretion relieve any city or town of any or all of the cost of constructing the 'connecting link, or impose such conditions upon or make such arrangements with the city or town as in its discretion may seem wise and just.

When the State Highway Commission orders any street to be hard-surfaced to make the connecting link, at the expense, in whole or in part, by the city or town, it sháll bé lawful for the governing body to declare an assessment district as to the street to be improved, without petition by the owners of property abutting thereon, and to charge the proportionate cost thereof to such property. This also applies when a city or town voluntarily assumes and undertakes the -improvement.

Taking a common-sense, liberal view, and the intent and purpose of the act, we find two bodies — rthe State Highway Commission and the mayor and board of aldermen of the city of Monroe — both desirous of connecting up the city of Monroe with the Wibmington-Charlotte-Ashe-ville Highway, a part of the State system, over Charlotte Avenue. The serious question arises, who shall pay for this improvement in the city of Monroe? It is to be hard-surfaced and improved like other links in the State system along this particular route. The State Highway Commission refused to pay for it or any part of it, and found it a necessary link in the State system, and ordered it to be hard-surfaced. What must the mayor and board of aldermen do- — sit idly by, or, under section 16, “voluntarily assume and undertake the improvement of the streets forming such connecting link,” etc. ? They had this discretion. Under the law, others who had the streets hard-surfaced had to pay for their proportionate part of the assessment. Could they relieve the plaintiff and others, who had property along Charlotte Avenue, of the assessment, when other property owners in the city of Monroe had paid for their improvements? Would they not have given a special privilege, or “coat of many colors,” to the plaintiff and others along Charlotte Avenue? Would not others who paid for their street improvement have felt that all wbo had 'hard-surfaced streets should pay alike — that equal rights and equal benefits and burdens should be meted out to all the inhabitants of the city of Monroe in reference to hard-surfaced streets? To make all pay for the improvements on the same basis, the city voluntarily assumed and undertook the improvement of this connecting link and declared this link an assessment district.

The board of aldermen of the city of Monroe, under the act (section 16, supra), had the legal right to “voluntarily assume and undertake the improvement of the street (Charlotte Avenue) forming such connecting links,” etc. That it had the legal right, without petition of a majority of the abutting owners of property, “to declare an assessment district as to the street to be improved,” etc., Charlotte Avenue. It is a matter of common knowledge that the State highway going along Charlotte Avenue will make it no ordinary street, but a thoroughfare, and enhance values more than over other streets. No objection having been made to the assessment, etc., by the plaintiff, in the mode and manner prescribed by law, the same was legal and binding on plaintiff.

We think C. S., ch. 56, art. 9, and the State Highway Act are in pari materia, and are to be construed together. Battle v. Mercer, ante, 446. Chapter 56, article 9, supra, provides for local improvements. How assessments levied — oné-half on abutting property, etc. These, statutes were substantially complied with.

It may be noted 'that the court below deducted from the assessment on the property of plaintiff and others what the county contributed and paid for grading on Charlotte Avenue, some $4,289.37, and approved the assessment roll for the balance.

From the evidence as it appears from the record, and the law as we construe it to be, we think the court below was correct when it dissolved the restraining order, refused a permanent restraining order or injunction, and dismissed the plaintiff’s action.

Affirmed.