City of Durham v. Rigsbee

• Decision Date: 17 April 1906
• Citation: 53 S.E. 531,141 N.C. 128
• Parties: CITY OF DURHAM v. RIGSBEE et al.
• Court: North Carolina Supreme Court

53 S.E. 531

141 N.C. 128

CITY OF DURHAM v. RIGSBEE et al.

Supreme Court of North Carolina

April 17, 1906

Appeal from Superior Court, Durham County; Ferguson, Judge.

Proceedings by the city of Durham against R. H. Rigsbee and another executors and trustees of A. M. Rigsbee, deceased, to condemn land for widening a street. From a judgment awarding damages defendants appeal. Affirmed.

Proceeding under sections 1943 et seq. of the Code, now section 2580 2588, of the Revisal of 1905, commenced by the city of Durham for the purpose of condemning land to widen a street in the city. The defendants demurred to the petition. The demurrer was sustained by the clerk, and an amended petition filed. The defendants demurred to the petition as amended. The demurrer was overruled, and the clerk required the defendants to answer. Upon the filing of the answer, the clerk appointed three disinterested freeholders as commissioners to appraise the land described in the petition and plat attached. Upon the coming in of the report, the defendants excepted thereto upon the ground that the valuation, placed upon the property condemned, was inadequate. The petitioner also excepted upon the ground that the appraisement was excessive. Upon the hearing the clerk reduced the sum at which the commissioners had appraised the property from $2,500 to $1,750. Whereupon the defendants entered of record the following exception "In open court the defendants excepted to the foregoing order and decree and every part thereof, and appealed to the superior court in term and demand a jury trial upon the hearing of the appeal." Upon the trial in the superior court, Judge Ferguson affirming the order of the clerk overruling the demurrer of the defendants. Whereupon the defendants tendered certain issues which the court declined to submit, and thereupon submitted to the jury the following issue: "What damages have the defendants sustained by reason of taking the land condemned in these proceedings for the purpose of widening Church street? Ans. $2,000." From the judgment rendered the defendants appealed.

Fuller & Fuller and Pou & Fuller, for appellants.

Manning & Foushee and R. B. Boone, for appellee.

BROWN J. (after stating the facts).

1. We agree with the clerk and his honor that the demurrer to the amended petition should be overruled, and further that the answer sets up no valid defense to a condemnation of the land by the petitioner for the purpose of widening Church street. It seems to be conceded, although not so stated in the record, that the method of procedure for condemning land prescribed for railroad companies by the Revisal is the method authorized by the petitioner's charter for condemning land for municipal purposes. That being so, a necessary allegation of the petition is that the plaintiff has not been able to acquire title to the land and the reason of such inability. Hill v. Mining Co., 113 N.C. 259 18 S.E. 171; Allen v. Railroad, 102 N.C. 381, 9 S.E. 4. It is not essential that the particular language of the statute should be used. If the facts alleged plainly show that the petitioner has been unable to acquire title and the reason why, that is a compliance with the statute. While this is a necessary allegation of this petition, it is not an issuable fact for the jury to determine. The judge was right in refusing to submit it to the jury. The statute requires such a statement so that the court may see whether the condemnor has made a reasonable effort to acquire title without resorting to the expense of condemnation proceedings and bringing a citizen into court. This statement is the allegation of a preliminary jurisdictional fact, not triable by the jury, a question of fact for the decision of the clerk in the first instance, and perhaps subject to review by the judge on appeal. Ledbetter v. Pinner, 120 N.C. 455, 27 S.E. 123; Railroad v. Parker, 105 N.C. 246, 11 S.E. 328; Code § 1945, Revisal 1905, § 2584. The purpose of this requirement in the statute is thus stated in Hill v. Mining Co., supra: "The statute requires the railroad company when it becomes the actor in such a proceeding, as it may, to state that fact as its justification for summoning to court a citizen whose land it wishes to take by condemnation." The allegation is not required when the landowner is petitioner. We think the amended petition states facts which plainly indicate not only that the petitioner's officers made every reasonable effort to agree with the defendants, but that an agreement was rendered impossible owing to the extravagant value of $30,000 which the petition alleges was placed upon the property by the defendants, as well as by their conduct in declining to meet the committee of aldermen and in sending them a threatening message "to look out or they would get themselves put in jail." These alleged facts are tantamount to a specific allegation in the words of the statute, and plainly show an effort upon the...