Bost v. Cabarrus County
| Decision Date | 11 May 1910 |
| Citation | 67 S.E. 1066,152 N.C. 531 |
| Parties | BOST v. CABARRUS COUNTY. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Cabarrus County; E. B. Jones, Judge.
Action by one Bost against Cabarrus County to recover damages to plaintiff's land by the building of a road. The jury found that plaintiff instituted the proceedings within six months after the road was completed over the land, and that she had sustained damages in the sum of $150, for which judgment was rendered, and defendant excepted and appeals. Affirmed.
Where in an action for damages by the alteration of a highway there was no proof that the road was not properly placed, or that there had been any negligence in its construction, proof that a fill 19 or 20 feet high had been so placed that plaintiff could not reach her home from the road without going over witness' land, and that she had a good spring which was destroyed, was not objectionable as tending to establish a tort in the construction of the road, and not damages resulting to plaintiff's land from the alteration thereof.
H. S Williams, for appellant.
Montgomery & Crowell, for appellee.
The order condemning the plaintiff's land for the purpose of the proposed change in the road was made in July, 1905, under the provisions of the act of the Legislature then controlling the matter, being chapter 420 of the laws of 1903; and in reference to the assessment of damage that act provided: "That if any person be aggrieved, he may, within six months after said change of road, or new road, has been opened and completed, apply to clerk of superior court for an order appointing a jury to assess the damages," etc. Prior to the filing of the present petition, and more than 18 months before the completion of the road, as established by the verdict, the General Assembly enacted the statute (chapter 201, Laws 1907) on the question of obtaining damages by persons injured. The latter act makes provision as follows: "And if after the changing, locating or relocating of any public road or opening and establishing any new public road, any persons be aggrieved, and if he and the superintendent of roads, with the approval of the board of commissioners of said county cannot agree and fix the amount of damages, if any, for the changing, locating or relocating of any public road, or the opening and establishment of a new public road, he may then, within six months after said change, location or relocation of the public road, or the opening and establishment of a new public road, apply to the clerk of the superior court, who shall appoint a jury to consist of five freeholders to assess the damages; and the said jury in determining said damages shall take into consideration the benefits made to the property and the damages sustained by the property, subtract one from the other, and the result shall be their verdict, and the said damages, if allowed, shall be paid out of the general fund of the county; and if the jury award no more damages than the amount offered by the said board of commissioners, then the party aggrieved shall pay all costs for making said assessment of damages; provided further, that the board of commissioners or the persons so aggrieved shall have the right of appeal to the superior court after giving good and sufficient security for costs." And it is urged for error by defendant that the latter statute controls, and, as the words contained in the former law, "within six months after said road shall be opened and completed," have been omitted in the present one, the time within which proceedings shall be instituted under the latter act shall be construed and held to be within six months from the time the change of an old or the opening of a new road shall have been ordered and the route determined on; but the position cannot be successfully maintained. It is true, as defendant contends, that no one has a vested right in any special remedy, and that procedure is always subject to be changed by the Legislature, with the limitation that one having a vested right in a cause of action must be left with some method of procedure reasonably adequate to afford relief. Black on Constitutional Law, 432; Cooley on Constitutional Limitations, 406 et seq. It is true, also, that the present law does afford effective and adequate means of redress, and it is furthermore evident that the Legislature intended the latter statute as the only rule available to the claimant, and, covering as it does the entire subject, it may be taken as repealing the former law. Sedgwick on Statutory and Constitutional Construction, p. 124. But we do not assent to the position of defendant that in changing the verbiage the present statute has wrought the change of meaning contended for. The word "changed," which is the controlling word in reference to the alteration of an old road, might refer to a change completed or a change contemplated and directed, but its primary and natural meaning would seem to be a change accomplished; and the words, "after the opening and establishment of a new road," by correct interpretation, should rather refer to the road in its completed state. While the question decided is not...
To continue reading
Request your trial