Efird v. City of Winston-Salem

• Decision Date: 16 June 1930
• Docket Number: 366.
• Parties: EFIRD v. CITY OF WINSTON-SALEM.
• Court: North Carolina Supreme Court

153 S.E. 632

199 N.C. 33

EFIRD v. CITY OF WINSTON-SALEM.

No. 366.

Supreme Court of North Carolina

June 16, 1930

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

Action by F. B. Efird against the City of Winston-Salem. Judgment for plaintiff, and defendant appeals.

Affirmed.

For a first cause of action plaintiff alleges: That he is the owner and in possession of a tract of land of approximately 50 acres, describing same, and about one-third is within the corporate limits of the city of Winston-Salem. That on March 4, 1927, defendant purporting to act under the authority of chapter 56, Public Laws of 1915, upon the assumption that it was a public street across a portion of the plaintiff's land, whereas it was not, levied an assessment thereon of $8,152.20, the cost of improving and paving said assumed street. That prior to the levy of the assessment and paving of the street, plaintiff protested to the defendant against the proposed work, and plaintiff denied the legal right of defendant to make an assessment against his property on account of said paving. That the assessment is illegal and invalid and casts a cloud upon the title of said tract of land.

For a second cause of action, plaintiff alleges, after making the above allegation as to ownership: That in June, 1926, the defendant took possession of a strip of plaintiff's land 50 feet wide and 550 feet in length lying in the corporate limits of defendant over plaintiff's protest and objection and paved same, assessing against the remainder of said tract for the cost of said pavement $8,152.20, and also laid across the said tract of land sewer and water lines. That defendant entered and took possession of said land and brought no proceedings for the purpose of vesting title in defendant, and there was no effort on the part of defendant to agree with plaintiff upon the purchase of the land or to acquire the right to enter thereon. That defendant's conduct was unlawful and wrongful. That plaintiff has been damaged in the sum of $2,500. That defendant declines to pay plaintiff any damages and refuses to institute condemnation proceedings to acquire title to the said land or a right to enter thereon. Pursuant to the provision of section 94 of defendant's charter, the claim in writing was filed with defendant for $5,500 damages. "Wherefore, he prays that said assessment be declared illegal and invalid; that the entry thereof upon the record of the City of Winston-Salem be canceled and that said City, pending further proceedings herein, be enjoined and restrained from taking any further steps in connection with said assessment or its collection and especially that said city be enjoined and restrained from advertising and selling the land herein described in satisfaction of said assessment; that he recover of the defendant the sum of $2,500, with interest and the costs of this action to be taxed by the Clerk."

The demurrer of defendant is as follows: "Now comes the defendant, City of Winston-Salem, and demurs to the first cause of action filed in the complaint filed in this cause upon the ground that the cause of action alleged therein, if any, should have been called to the attention of the Board of Aldermen of the City of Winston-Salem, when and where objections would have been heard, and the said assessment could have been corrected. That the plaintiff did not appear as the law provides before the Board of Aldermen, or in any wise protested to this assessment, or in any wise appealed from the judgment making the assessment a lien on his property which is provided for under Public Laws 1915 chapter 56; and the defendant further moves the Court to strike from the second cause of action that portion of paragraph 3 contained in parenthesis, the same being irrelevant." The allegation requested to be stricken out is as follows, in second cause of action: "Assessing against the remainder of said tract, for the cost of said pavement, approximately the sum of $8,152.20."

The judgment of the court below is as follows: "This cause coming on to be heard, and being heard before His Honor, Michael Schenck, Judge Presiding at the February, 1930, Term of the Superior Court of Forsyth County, on the demurrer of the City of Winston-Salem to the first cause of action set out in the complaint, the grounds for the demurrer being that the plaintiff did not except to, or appeal from the confirmation of the assessment roll of the Board of Aldermen, in accordance with chapter 56 of the Consolidated Statutes of North Carolina and the Court being of the opinion that the demurrer should be overruled; It is therefore ordered, adjudged and decreed that the demurrer, and the same is hereby overruled, and the defendant is allowed 20 days from the entry of this judgment, or if appealed to the Supreme Court and decided adversely to the defendant, 20 days from the certificate of the Supreme Court in which to answer or otherwise plead."

The defendant excepted to the judgment for the reason set forth in the demurrer, assigned error, and appealed to the Supreme Court.

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

Oscar O. Efird and Manly, Hendren & Womble, all of Winston-Salem, for appellee.

CLARKSON J.

"A demurrer goes to the heart of a pleading and challenges the right of the pleader to maintain his position in any view of the matter, admitting, for the purpose, the truth of the allegations of fact contained therein." Meyer v. Fenner, 196 N.C. at page 477, 146 S.E. 82; Winston-Salem v. Ashby, 194 N.C. at page 390, 139 S.E. 764.

The material question presented on this appeal is set forth in defendant's assignment of error: "That the confirmation of the assessment roll by the Board of Aldermen of the City of Winston-Salem precludes and bars the present contentions of the plaintiff as set out in the complaint, and that the plaintiff should have objected to the confirmation of the assessment roll at the time and place provided therefor, and should have appealed from the confirmation of the assessment roll in accordance with chapter 56 of Consolidated Statutes of North Carolina." We cannot so hold.

It seems that defendant has no local statute on the subject and its right depends on the public statutes. From the allegations set forth in...