Cannon v. City of Wilmington
| Decision Date | 12 October 1955 |
| Docket Number | No. 171,171 |
| Court | North Carolina Supreme Court |
| Parties | W. A. CANNON v. CITY OF WILMINGTON, North Carolina, and North Carolina State Highway and Public Words Commission. |
W. P. Burkhimer, Wilmington, for plaintiff, appellant.
Wm. B. Campbell and Louis J. Poisson, Jr., Wilmington, for defendant City of Wilmington, appellee.
R. Brookes Peters, General Counsel, Raleigh, and Louis J. Possion, Jr., Associate Counsel, Wilmington, for defendant North Carolina State Highway and Public Works Commission, appellee.
The State Highway and Public Works Commission is an unincorporated governmental agency of the State and not subject to suit except in the manner expressly authorized by statute. Moore v. Clark, 235 N.C. 364, 70 S.E.2d 182, and cases cited. Hence, the demurrer of the defendant Commission, grounded on the court's lack of juridiction to entertain this action against it, was properly sustained.
True, when private property is taken under circumstances such that no procedure provided by statute affords an applicable or adequate remedy, the owner, in the exercise of his constitutional rights, may maintain an action to obtain just compensation therefor. Sale v. State Highway and Public Works Comm., N.C., 89 S.E.2d 290; Eller v. Board of Education, N.C., 89 S.E.2d 144. But this exception to the general rule has no application here.
Here plaintiff alleges expressly, as set out above, that defendant Commission has no valid claim of right of way over plaintiff's land. Rather, plaintiff seeks to remove as a cloud on plaintiff's title defendant Commission's alleged invalid adverse claims.
If and when defendant Commission, in the exercise of the power of eminent domain conferred upon it by statute, G.S. § 136-19 and G.S. § 40-12 et seq., takes plaintiff's land or any interest therein for highway purposes, plaintiff's remedy is by special proceeding as provided in G.S. § 40-12.
Plaintiff declares that he is aggrieved because defendants have done nothing 'to limit, bound, and describe with particularity the boundaries of their said claims.' Certainly, if defendant Commission claims a right of way over plaintiff's land, plaintiff is entitled as a matter of right to require that defendant define with particularity the location and extent of its claim; and, if it refuses or fails to do so, plaintiff can invoke the remedy of mandamus. The statutory procedure described in G.S. § 40-12 for the award of just compensation to the owner of private property appropriated to public use presupposes that the owner shall know with certainty the exact limits of the appropiation made by defendant Commission.
Defendant City of Wilmington demurred for that it appears upon the face of the complaint 'that this action has been instituted to determine the taking of and the location of the highway right of way by the defendants over a portion of the area referred to in the Complaint, and that the Court has no jurisdiction of the parties with respect to the alleged cause of action and no jurisdiction of the alleged civil action as set out in the Complaint; and for that it further appears upon the face of the Complaint that the alleged cause of action is based upon trespass by the defendants, who separately and jointly are by law vested with the power of eminent domain.'
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Rhyne v. Town of Mount Holly
... ... abated, or remedied, everything in the city limits, or within a mile of such limits, which is dangerous or prejudicial to the public health; ... Wilmington, 130 N.C. 76, 40 S.E. 853, 56 L.R.A. 959; arrest made in brutal [251 N.C. 527] manner by policeman ... of his constitutional rights, may maintain an action to obtain just compensation therefor." Cannon v. City of Wilmington, 242 N.C. 711, 89 S.E.2d 595, 596; Eller v. Board of Education, supra; Sale ... ...
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State Highway Commission v. L. A. Reynolds Co., 439
...440; Eller v. Board of Education, 242 N.C. 584, 89 S.E.2d 144; Sale v. Highway Commission, 242 N.C. 612, 89 S.E.2d 290; Cannon v. Wilmington, 242 N.C. 711, 89 S.E.2d 595; Rhyne v. Town of Mount Holly, 251 N.C. 521, 112 S.E.2d 40; Guilford Realty & Insurance Co. v. Blythe Brothers Co., 260 N......
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Givens v. Sellars, 27
...a cause of action the pleading will stand * * *.' Snotherly v. Jenrette, 232 N.C. 605, 61 S.E.2d 708. See also Cannon v. City of Wilmington, 242 N.C. 711, 89 S.E.2d 595. Plaintiff sues for damages for destruction of an outdoor advertising sign located upon his leasehold estate and seeks to ......
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City of Charlotte v. Spratt, 286
...242 N.C. 584, 89 S.E.2d 144; Sale v. State Highway and Public Works Commission, 242 N.C. 612, 89 S.E.2d 290; Cannon v. City of Wilmington, 242 N.C. 711, 89 S.E.2d 595; Rhyne v. Town of Mount Holly, 251 N.C. 521, 112 S.E.2d 40; Guilford Realty & Insurance Co. v. Blythe Brothers Co., 260 N.C.......