Town of Ayden v. Lancaster

142 S.E. 18, 195 N.C. 297, 1928 N.C. LEXIS 68

Opinion

Bbogden, J.

Consolidated Statutes, 1724, guarantees to a landowner the right of trial by jury in determining the amount of damages suffered by reason of the taking of property under the power of eminent domain. The only limitation imposed by law upon the right to such trial by jury is: “If upon the bearing of such appeal a trial by jury be demanded.” The defendants demanded this right. R. R. v. Newton, 133 N. C., 132; Durham v. Riggsbee, 141 N. C., 128; R. R. v. R. R., 148 N. C., 59; Long v. Rockingham, 187 N. C., 199.

The trial judge bad full authority in bis discretion to order a mistrial, but be was without authority, under the circumstances disclosed in this record, to remand the cause to the clerk of tbe Superior Court of Pitt County with direction “to appoint three competent and disinterested freeholders . . . who should go upon the premises . . . and, after viewing the same, shall assess the damages sustained by the defendant,” etc. There was no irregularity in the proceeding, but upon the other hand the cause stood regularly upon the civil issue docket for trial upon exceptions duly filed upon the question of damage, and the defendants were entitled to have the issue of damage determined by a jury.

The appeal of defendants from the order of the clerk confirming the report of the commissioners brought into the Superior Court the entire case, where the trial must be had de novo so far as the question of damage is concerned. Durham v. Riggsbee, 141 N. C., 128; S. v. Jones, 139 N. C., 613; R. R. v. R. R., 148 N. C., 59.

In S. v. Jones, supra, the Court said: “As he has taken an appeal, his damages will be assessed de novo by a tribunal whose jurisdiction is undoubted.”

We hold, therefore, that the defendants are entitled to have the issue of damages determined by a jury, and the judgment ordering a new appraisal is

Eeversed.