Bd. Of Educ. Of Wake County v. Pegram

• Decision Date: 10 April 1929
• Docket Number: (No. 251.)
• Citation: 147 S.E. 622
• Court: North Carolina Supreme Court
• Parties: BOARD OF EDUCATION OF WAKE COUNTY et al. v. PEGRAM et al.

147 S.E. 622

(197 N.C. 33)

BOARD OF EDUCATION OF WAKE COUNTY et al.

v.PEGRAM et al.

(No. 251.)

Supreme Court of North Carolina.

April 10, 1929.

Appeal from Superior Court, Wake County; W. C. Harris, Judge.

Proceeding by the Board of Education of Wake County and another against Delia Banks Pegram and husband to condemn land for a school site. Judgment for defendants, and plaintiff appeals. Reversed.

The facts found by the clerk were substantially as follows: The Willow Springs school, in Wake county, acquired a school site containing 2 acres in 1905. In 1927 the school district was greatly enlarged, and was thereafter known as the Willow Springs consolidated school, and "it is necessary that the site be enlarged by reason of the great increase in number of children attending the consolidated school." The defendants owned approximately 7 acres of land adjacent to said school, and on the 4th day of January, 1928, the board of education undertook pursuant to law to condemn 2½ acres of the land of the defendants as a school site, which would give the said school a site containing 4½ acres, more or less.

Upon the foregoing facts the clerk was of the opinion that the plaintiff had no power to acquire additional land by virtue of the provision of chapter 136, section 61, Public Laws of 1923, which is embodied in C. S. Supp. 1924, § 5469.

Upon appeal from the clerk to the judge of the superior court, the ruling of the clerk was affirmed, and the plaintiff appealed.

J. C. Little, of Raleigh, for appellants.

Briggs & West, of Raleigh, for appellees.

BROGDEN, J. The defendants contend that the county board of education, having selected a site containing 2 acres, was without power to condemn additional land under the law as it existed at the time of instituting the suit. This contention is based upon the theory that section 5469 does not authorize a county board of education to exercise the power of condemnation but once, and thus, when a site has been acquired, the power to condemn is exhausted, irrespective of the growth of the school and the imperative necessity for an enlarged site.

Apparently, the power to condemn was first bestowed upon county boards of education by section 31, chapter 4, Public Laws of 1901. This statute permitted schools to condemn not more than one acre for a site: Provided, however, that improved land was not to be taken unless absolutely necessary. Section 13 of chapter 435 of Public Laws of 1903 substituted two acres for one acre. Section 8, chapter 533, of Public Laws of 1905, amended the act of 1901 by permitting additional land to be secured for a school site provided the original site plus the additional land acquired did not exceed two acres. Section 1(b), chapter 149, Public Laws of 1913, provided...