Virginia Trust Co. v. City of Asheville

176 S.E. 257, 207 N.C. 162, 1934 N.C. LEXIS 410

• Court: Supreme Court of North Carolina
• Decided: October 10, 1934
• Status: Published

Opinion

Stacy, 0. J.

When real estate is damaged through the negligence of a municipality, will notice of such damage given by the owner of the land in accordance with the city charter inure to the benefit of the trustee in the first lien created by a deed of trust thereon ?

Defendant had no notice of plaintiff’s claim, or that plaintiff would make claim for damages, until nearly two' years after the alleged injury. Nothing else appearing, failure to give notice as required by the city charter defeats the action under the decisions dealing with this and similar charter provisions. Dayton v. Asheville, 185 N. C., 12, 115 S. E., 827; Cresler v. Asheville, 134 N. C., 311, 46 S. E., 738; Pender v. Salisbury, 160 N. C., 363, 76 S. E., 228; Dockery v. Hamlet, 162 N. C., 118, 78 S. E., 13; Terrell v. Washington, 158 N. C., 281, 73 S. E., 888; Kirby v. Comrs. of Person, 198 N. C., 440, 152 S. E., 165. Compare Stephens Co. v. Charlotte, 201 N. C., 258, 159 S. E., 414.

Nor do we think the notice given by the owner pf the equity of redemption can avail the plaintiff in the absence of a showing that such notice was given on behalf of the plaintiff, or was intended to include plaintiff’s claim. City of Birmingham v. Chestnutt, 161 Ala., 253; 43 C. J., 1191.

Knowledge of the claimant is as necessary as knowledge of the injury, if the city is to be afforded an opportunity to discharge its liability without suit. See McDougall v. Birmingham, 219 Ala., 686, 123 So., 83, as reported in 63 A. L. R., with full annotation.

Affirmed.