City of Reidsville v. Slade
| Decision Date | 01 March 1944 |
| Docket Number | 23. |
| Parties | CITY OF REIDSVILLE v. SLADE et al. |
| Court | North Carolina Supreme Court |
Civil action instituted under the laws of North Carolina, including the charter of city of Reidsville, with reference to eminent domain, to condemn land for a municipal airport,--heard upon motion of petitioner to dissolve temporary restraining order issued without notice at instance of defendants.
Petitioner in petition filed alleges: That on June 8, 1942, the city council of the city of Reidsville, finding it necessary and in the interest of the public to establish and maintain a municipal airport, passed an ordinance determining that it is necessary to acquire land suitable for the purpose, and authorizing the issuance of bonds pursuant to the Municipal Finance Act of 1921, Pub.Laws 1921, Ex.Sess., c. 106, as amended, to provide funds with which to build an airport that on July 21, 1942, at a special election duly called and held, a majority of the voters qualified to vote at said election approved said bond ordinance; that the petitioner had found it necessary to establish a portion of said airport on lands located about three miles southeast of the city of Reidsville, in Reidsville township, Rockingham County, and specifically described, belonging to defendants Slade, as brother and sister, and on which defendant Donovan is a tenant; and that petitioner has been unable to acquire title to said lands for reason that defendants have refused to sell same to petitioner at any price, or have named a price to exorbitant that it amounts to an outright refusal to sell. Upon these allegations petitioner prays that an order be made condemning the lands for the said purpose, that commissioners be appointed to go upon the lands and appraise the same and make report to the court according to law.
Defendants answering the petition, admit the passage of the ordinance by city council of city of Reidsville, the holding of a special election on July 21, 1942, and the ownership and interest of defendants in and to the lands described, but deny all other material allegations. And for a further defense defendants aver: That the lands which petitioner seeks to acquire are valuable and indispensable parts of an entire tract, the taking of which would greatly and irreparably impair and damage the remaining portion, etc.; that erected upon said lands are certain dwelling houses, yards, kitchens, gardens tobacco barns, pack houses, and other buildings and structures which are now occupied and in use; that the condemnation of said lands with improvements thereon would be in violation of the laws and of the Constitution of North Carolina; that the establishment, maintenance and operation of said proposed airport is not for a public purpose and is violative of Art. 5, Sec. 3 of the Constitution of North Carolina; that the passed at the 1943 session of the General Assembly, c. 186 in amendment to Chap. 168 of Private Laws 1935, as amended, by adding Sec. 1 1/2, which reads as follows:
is in contravention and in violation of Art. II, Sec. 29 of the Constitution of North Carolina, and is, therefore, void; that the petitioner is without authority under the Constitution and laws of North Carolina and under its charter to institute this condemnation proceeding or to condemn any of the lands of the defendants; and that the taking of the property of defendants would be in violation of the due process clause of Art. I, Sec. 17 of the Constitution of North Carolina, and of the 14th Amendment to the Constitution of the United States.
After the answer was filed petitioner was upon motion permitted to amend the original petition so as to include therein certain described lands in substitution for the second tract described in the petition, to which amendment defendants answered setting up in material respects the averments contained in the answer to the original petition.
Defendants also by permission of the court filed an amendment to their further answer by adding averments summarily stated as follows: That certain public roads which are under the control of the State Highway and Public Works Commission and in public use lie within the boundaries of the proposed municipal airport, and the petitioner proposes to take over, use, occupy and appropriate same in such way and manner as will interfere with the use thereof by these defendants and other property owners, taxpayers and citizens of Rockingham County, and will deprive them of their rights and interests in and to such public highways; that the petitioner is without power and authority to purchase or to acquire by condemnation proceedings or otherwise a fee or easement in and to said public highways for municipal airport, and the State Highway and Public Works Commission is without power and authority to transfer, sell, release or liquidate its easement in and to said public highways to city of Reidsville for municipal airport purposes and any attempt to do so is void; that the Commission has made no contract or agreement with the city of Reidsville to transfer, sell, release or liquidate its easement and rights in and to said public highways; that if the Commission should agree to sell, transfer, release or liquidate its easement and rights in and to said public highways, the carrying out of the plan set up for the municipal airport would entail enormous cost and expenditure of many thousands of the $100,000 municipal airport fund referred to in the special election held on July 21, 1942, to pay for said public highways and for the laying out of new highways which would be required to take the place of existing highways, which expenditure would not be for a public purpose and would cause damage to defendants and other taxpayers of Rockingham County; and that the plan and set up in the acts of petitioner are wrongful, unlawful, unconstitutional and violative of the property rights of the defendants and of the general public and of the many property owners who abut on said highways who have rights and interest therein and thereto.
Thereafter, defendants, without notice to petitioner, moved before Carr, regular Judge of the Tenth Judicial District, at Burlington, N. C., for an injunction restraining petitioner from proceeding further with the condemnation of lands of defendants. This motion, in the form of a petition, (a) incorporated as a part of it the pleadings in this action, (b) amplified the averments theretofore made in defendants' answer, and amendment to answer, and (c) further averred: That upon the demand of the city of Reidsville, and over the protest of the defendants, the clerk of Superior Court of Rockingham County has set the proceeding instituted by the city of Reidsville for the condemnation of lands of defendants for hearing before him on December 20, 1943, at Went-worth, N. C., at which time defendants are advised and believe that the clerk will appoint appraisers and otherwise proceed with the condemnation of the property of defendants as prayed for in the petition of city of Reidsville, and if the city be allowed to proceed in said cause, these defendants will be deprived of their property and of said public highways contrary to law, and these defendants will thereby suffer irreparable damage.
Upon this motion of defendants, and without notice to petitioner, an order was signed at Burlington, N. C., by Carr, J., as aforesaid on December 17, 1943, restraining temporarily petitioner, its agents, servants, employees, and attorneys from proceeding further in the condemnation proceeding, until further orders of the court, and directing petitioner to appear on January 4, 1944, before Clement, regular judge, assigned to hold the courts of the Twenty-First Judicial District, beginning January 1, 1944, at the courthouse in Danbury, Stokes County, and show cause why said restraining order should not be made permanent.
Thereupon petitioner, city of Reidsville, moved before Sink, J., at Greensboro, N. C., on December 20, 1943, for order to dissolve the restraining order of Carr, J., for that said restraining order was signed without notice to petitioner, and for that the motion and petition upon which it was granted are not sufficient to warrant the order for these reasons: (a) They do not state grounds for equitable relief, and are insufficient as matter of law to warrant the order. (b) His Honor, Carr, J., who granted the restraining order, was not the resident judge nor was he the judge holding the courts of the Twenty-First Judicial District in which this proceeding is pending and was not familiar with the litigation. (c) All the matters set out in the motion and petition have heretofore been submitted to Superior Court for decision in a suit brought at instance of these and other defendants like situated in the name of certain taxpayers of the city of Reidsville, to wit: the case of J. H. Turner et al. v. City of Reidsville, N. C., 29 S.E.2d 211, which suit has been determined by the judge of Superior Court adversely to contentions...
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