City of Winston-Salem v. Ashby

• Decision Date: 19 October 1927
• Docket Number: 345.
• Citation: 139 S.E. 764,194 N.C. 388
• Parties: CITY OF WINSTON-SALEM v. ASHBY et al.
• Court: North Carolina Supreme Court

139 S.E. 764

194 N.C. 388

CITY OF WINSTON-SALEM v. ASHBY et al.

No. 345.

Supreme Court of North Carolina

October 19, 1927

Appeal from Superior Court, Forsyth County; Harding, Judge.

Proceeding by the City of Winston-Salem against Lottie White Ashby, and others for the extension and the widening of the streets and creating an assessment district therefor. From the judgment Mrs. C. S. McArthur appeals. Reversed.

Demurrer admits as true every material fact alleged in complaint properly pleaded.

This is a special proceeding instituted by the city of Winston-Salem against more than 500 defendants, including the defendant Mrs. C. S. McArthur, for extension and widening of West Third street, Burke street, Brookstown avenue, First street, and Shallowford street, and creating an assessment district therefor.

The condemnation of the land involved would necessarily cause the destruction and removal of buildings situated where said streets are to be opened and widened, and dwelling houses occupied by citizens of the city. There is situated in said assessment district the First Presbyterian Church of Winston-Salem, N. C., Brown Memorial Baptist Church, St Leo's Catholic Church, West and Methodist Church, Calvary Moravian Church, and one of the proposed new streets goes through the property of the Broad Street Primitive Church taking the entire church.

Richmond Rucker, W. T. Wilson, Manly, Hendren & Womble, Ratcliff, Hudson & Ferrell, and J. E. Alexander, all of Winston-Salem, for appellant.

Parrish & Deal, of Winston-Salem, for appellee.

CLARKSON J.

The only question involved, necessary to be considered on this appeal, is, Must the plaintiff, as a condition precedent, attempt to acquire by purchase or negotiate with the owners of the land sought to be condemned? This necessitates the construction of the statutes relating to the query.

The plaintiff alleges in its complaint:

"That the city has been unable to acquire title to said parcels of land which are needed for said improvement, for the reason that the defendants and the city have been unable to agree upon the purchase price, and for the further reason that some of the defendants are minors, and unable to make a valid agreement as to the sale of said lands, and that the petitioner is unable to acquire said lands except by this condemnation and assessment proceedings."

In answer, the defendant says:

"This defendant has not sufficient knowledge or information to form a belief, and therefore denies the same. *** And for a further defense to this action and bar thereto, this defendant says that under the law of the state of North Carolina, and particularly under section 2792 of the Consolidated Statutes of North Carolina, under which, as this defendant is advised, believes, and alleges, the plaintiff is seeking to condemn the property of this defendant in this action, that the plaintiff has the power or authority to proceed to attempt to condemn the property of this defendant only in the event, if the governing body of said city are unable to agree with the owners thereof for the purchase of the land, privilege, or easement attempted to be condemned; that no attempt or effort has been made by the city of Winston-Salem to purchase the said property of this defendant from her, or otherwise; nor has the plaintiff attempted or made an effort to agree with this defendant for the purchase of such land, and the plaintiff is therefore without authority to institute, prosecute, or maintain this action for the condemnation of the lands of this defendant, or to recover therein, and this defendant therefore sets up and specifically pleads the same in bar of plaintiff's right of recovery in this action."

The plaintiff demurs to the answer as follows:

"The plaintiff, the city of Winston-Salem, demurs to the further defense set out in the answer of Mrs. C. S. McArthur, for that the same does not in law constitute a defense to the special proceeding instituted by the plaintiff. The grounds for the plaintiff's demurrer to the defense, set out in paragraph 1 of the further defense, are that it was not necessary and it would not have been proper for the plaintiff to have negotiated with the defendants in this proceeding for the purpose of acquiring the property in question, or for the purpose of fixing the amount of assessments for benefits to be made against the said defendant, or any of them; that chapter 220 of the Public Laws of 1923 provides an exclusive method whereby damages and benefits shall be determined by the commissioners appointed by the clerk and on an appeal from them to a jury at term time, and it would therefore be unnecessary and improper for the plaintiff to attempt, by private agreement, to settle matters which by law have been placed in the jurisdiction of the court."

The plaintiff, in its petition, alleges that it has been unable to acquire title to the land needed as it has been unable to agree with defendants upon the purchase price. The allegation in regard to minors need not be considered as the minors are under disability. The statute does not contemplate this useless formality. Power Co. v. Moses, 191 N.C. 744, 133 S.E. 5.

The defendant denies the allegation of the complaint, and as a bar to the proceeding sets up as a further defense and alleges as a fact that no attempt or effort was ever made by plaintiff to acquire the land of defendant by agreement or negotiation. The plaintiff demurs to this further answer, and the question for our determination is squarely presented.

This is a preliminary jurisdictional fact. Power Co. v. Moses, supra. The plaintiff so considered it when it filed the petition, and alleged that it had not "been unable to agree upon the purchase price." On demurrer to the further answer, the plaintiff now admits that no negotiations were ever had before the special proceeding was instituted. "A demurrer to an answer admits as true every material fact alleged in the answer to the same extent and with the same force as a demurrer to a complaint." Real Estate Co. v. Fowler, 191 N.C. 616, 132 S.E. 575. "It is also universally held in this jurisdiction, that a defendant by demurring admits as true every material fact alleged in the complaint properly pleaded." State v. Trust Co., 192 N.C. 246, 134 S.E. 656.

The plaintiff brings its special proceeding under the general state statutes. "Municipal Corporations," art. 15, part. 2, "Power to Acquire Property." C. S. § 2791, is as follows:

"Acquisition by Purchase. When in the opinion of the governing body of any city, or other board, commission, or department of the government of such city having and exercising or desiring to have and exercise the management and control of the streets, water, electric light, power, gas, sewerage or drainage systems, or other public utilities, parks, playgrounds, cemeteries, wharves, or markets, open-air or enclosed, which are or may by law be owned and operated or hereafter acquired by such city or by a separate association, corporation, or other organization on behalf and for the benefit of such city, any land, right of way, water right, privilege, or easement, either within or outside the city, shall be necessary for the purpose of opening, establishing, building, widening, extending, enlarging, maintaining, or operating any such streets, parks, playgrounds, cemetery, water, electric light, power, gas, sewerage or drainage systems, wharves, or other public utility so owned, operated, and maintained by or on behalf of any such city, such governing body, board, commission, or department of government of such city may purchase such land, right of way, water right, privilege, or easement from the owner or owners thereof and pay such

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