Deese v. Town of Lumberton

• Decision Date: 16 December 1936
• Docket Number: 680.
• Citation: 188 S.E. 857,211 N.C. 31
• Parties: DEESE et al. v. TOWN OF LUMBERTON et al.
• Court: North Carolina Supreme Court

188 S.E. 857

211 N.C. 31

DEESE et al. v. TOWN OF LUMBERTON et al.

No. 680.

Supreme Court of North Carolina

December 16, 1936

Appeal from Superior Court, Robeson County; Clawson L. Williams Judge.

Suit by O. C. Deese and another against the Town of Lumberton, a municipal corporation, and others. From an adverse judgment the plaintiffs appeal.

Affirmed.

The judgment of Williams, Judge, in the court below, is as follows:

"By consent the hearing upon the temporary restraining order issued in this cause by Honorable N. A. Sinclair, resident Judge of the Ninth Judicial District, was continued and heard by the undersigned Judge presiding over the courts of the Ninth Judicial District, at Chambers in Lumberton, N C., on this May 29, 1936. Upon consideration of the complaint and answer filed herein, treated as affidavits, and the argument of counsel for plaintiffs and defendants, the Court finds the following facts:

1. That the commissioners of the Town of Lumberton acted within their discretion and without any abuse of the same in finding as a fact that the public necessity requires and demands that a new street or alley be opened in the Town of Lumberton, bounded and described as particularly set out in paragraph four of the complaint; there was no allegation nor evidence before the Court to the contrary, and the Court refuses to review the findings of the commissioners of the Town of Lumberton with respect to public necessity requiring that said alley-way be opened. The Court finds as a fact the defendants and plaintiffs herein cannot agree in regard to the value of land or property damaged, and that the property owners immediately to the south of said proposed alley-way agreed to save the town harmless from any expense of said condemnation proceeding; that said agreement was made in good faith and not by any collusion between the Town of Lumberton and said property owners, and in no way affected the bona fides of the exercise of their discretion in adjudging that the public necessity required the opening of said alley-way in said transaction, the commissioners of the Town of Lumberton were merely trading with the abutting property owners, who would be particularly benefited by virtue of the opening of said alleyway adjacent to and immediately north of any business houses they might erect upon their said property.

2. The proposed alley-way is within the fire limits of the Town of Lumberton, directly in front of and across the street from the United States postoffice and within two blocks of the courthouse of Robeson County. The property owners to the south of said proposed alley-way desire to develop said property by building thereon business houses, including a funeral home. The business section of the Town of Lumberton, because of the unusual growth of the town, is expanding to the north where said proposed alley-way is situate.

3. In condemning the lands described in paragraph four of the complaint for a public alley-way, the commissioners of the Town of Lumberton proceeded in accordance with the authority granted by chapter 343, Private Laws of North Carolina, Session of 1907 (the charter of the Town of Lumberton), particularly section 48 of said chapter, as amended by chapter 216, Private Laws of North Carolina, Session 1925. The Court is of opinion that this last named act in no way prescribes the manner, method, way or means of laying out, opening, altering, maintaining or discontinuing of streets or alleys, but said act merely adds to the jurisdiction previously given the commissioners of the Town of Lumberton by chapter 343, Private Laws of North Carolina, Session 1907, by giving them authority over sidewalks and alleys to the same effect and in the same manner as that previously granted the said commissioners of the Town of Lumberton over streets under the act of 1907, and this enlargement of jurisdiction, without changing the method, manner, way or means of laying out streets previously authorized by the Act of 1907, does not contravene or conflict with section 29, article 2 of the Constitution of North Carolina.

4. Plaintiffs do not contend that defendant, Town of Lumberton, has not properly proceeded to condemn the necessary lands for said alley-way, in accordance with section 48, chapter 343, Private Laws of 1907, as amended by chapter 216, Private Laws of 1925, and the Court finds as a fact that defendant, Town of Lumberton, has properly proceeded with said condemnation proceeding, in accordance with said acts, the only contention of plaintiffs with reference thereto being that chapter 216, Private Laws of 1925, is in conflict with section 29, article 2 of the Constitution of North Carolina.

Upon the foregoing findings of fact it is ordered, adjudged and decreed that the temporary restraining order heretofore issued in this cause by the Honorable N. A. Sinclair, resident Judge of the Ninth Judicial District, be, and the same is hereby, dissolved and that plaintiffs be taxed with the cost of this action."

To the foregoing judgment and each and every finding of fact and ruling thereon, the plaintiffs excepted and assigned error, and appealed to the Supreme Court. The plaintiffs excepted and assigned error in detail to the findings of fact by the court below.

F. D. Hackett, Jr., and Varser, McIntyre & Henry, all of Lumberton, for appellants.

McLean & Stacy, of Lumberton, for appellees.

CLARKSON Justice.

(1) Is Private Laws of 1925, chapter 216, which amends chapter 343, Private Laws 1907, invalid under article 2, § 29, Constitution of North Carolina? We cannot so hold.

Chapter 216, Private Laws of 1925, amends chapter 343, Private Laws of 1907 (charter of the Town of...