Board of Educ. of Orange County v. Forrest

• Citation: 130 S.E. 621,190 N.C. 753
• Decision Date: 16 December 1925
• Docket Number: 337.
• Parties: BOARD OF EDUCATION OF ORANGE COUNTY v. FORREST ET AL.
• Court: United States State Supreme Court of North Carolina

130 S.E. 621

190 N.C. 753

BOARD OF EDUCATION OF ORANGE COUNTY v. FORREST ET AL.

No. 337.

Supreme Court of North Carolina

December 16, 1925

Appeal from Superior Court, Orange County; Grady, Judge.

Petition by the Board of Education of Orange County against Thomas J Forrest and another to condemn a certain lot for school purposes, wherein restraining order was issued against one of defendants. From judgment that plaintiff had no legal right to condemn lot and dissolving restraining order, plaintiff appeals. Reversed.

Board held entitled to condemn lot for school purposes after prior purchase of other lots for same purpose; "site."-- The plaintiff filed a petition in the superior court of Orange to condemn for school purposes a lot containing 1.09 acres. The defendant Webb filed an answer, and his honor hearing the case by consent of parties, found the following facts:

(1) That on the 9th day of April, 1925, the board of education of Orange county, N. C., duly instituted in the superior court of Orange county an action against Thomas J. Forrest for the purpose of condemning a tract of land described in the pleadings, containing 1.09 acres, for the use and benefit of the Efland high school, and in order to carry out the original plans and arrangements for said school, and for necessary playgrounds and entrance to said school building which said school building has been erected during the fall of the year 1924 as hereinafter set forth; that at the time of instituting said action the said Thomas J. Forrest was a nonresident of the state of North Carolina, living in Atlanta, Ga., and an order of publication of summons was duly issued by the clerk of the superior court of Orange county in said action on April 9, 1925, requiring the said defendant to appear at the offices of the clerk of the superior court of Orange county on the 11th day of May, 1925, and answer or demur to the petition filed in said cause, and that said summons was duly published as required by statute.

(2) That on the 9th day of April, 1925, the plaintiff filed a petition praying for the condemnation of the property belonging to the defendant described herein.

(3) That on the 29th day of April, 1925, and on May 1, 1925, the plaintiff duly filed and docketed in the office of the clerk of the superior court of Orange county notice of lis pendens as required by statute.

(4) That the defendant James O. Webb secured a deed from Thos. J Forrest for said premises, dated March 2, 1925, acknowledged in Fulton county, Ga., by the grantor, before a notary public on the 30th day of April, 1925, and probated by the clerk of the superior court of Orange county on the 6th day of May, 1925, and filed for registration in the office of the register of deeds for Orange county on the 6th day of May, 1925. That payment for said land was made by the defendant James O. Webb by check which was dated and mailed on April 24, 1925.

(5) That on the 29th day of April, 1925, the plaintiff duly issued summons against Thos. J. Forrest and James O. Webb, which said summons was served by the sheriff of Orange county on the 30th day of April, 1925, and personally served on the defendant James O. Webb on the 30th day of April, 1925, and that on the same day the plaintiff filed an amended complaint against the said Thos. J. Forrest and James O. Webb, praying for the condemnation of said property for the purposes set out in said petition and amended petition, and upon an affidavit duly filed at said time, alleging that the said defendant, James O. Webb, had entered into possession of said property and was beginning to plow up, ditch, and lay off streets on the same, and that Hon. Thomas H. Calvert, judge holding courts of the Tenth judicial district, issued a restraining order enjoining and restraining the said James O. Webb, his servants, agents, and attorneys, from going upon said land, and that the hearing of said restraining order was postponed by consent of the parties and without prejudice from time to time until the same came regularly on to be heard before the undersigned judge holding the courts of the Tenth judicial district.

(6) That prior to June 9, 1924, the board of education of Orange county, in regular session assembled, decided to consolidate the schools of Orange county, and in pursuance to said plan of consolidation decided to locate the school building for Cheek's township at Efland, N. C., and that on the 9th day of June, 1924, said board of education in regular session assembled went to Efland in said Cheek's township, Orange county, and after examining various sites, selected a site for said school building, containing a fraction over six acres of land, and thereafter, on June 27, 1924, caused a survey of said site to be made by R. M. Trimble, C. E., that said site so selected as a suitable school site by said board of education was composed of two parcels of land, one parcel containing five and a fraction acres, and owned by J. M Freeland and George J. Freeland, and another parcel containing 1.09 acres owned at that time by the defendant Thomas J. Forrest; that a street, road, or alleyway runs between said lots as shown by said plot, said street, road, or alleyway being 10 feet in...