Lanier v. Town of Greenville

• Decision Date: 17 October 1917
• Docket Number: 173.
• Citation: 93 S.E. 850,174 N.C. 311
• Parties: LANIER ET AL. v. TOWN OF GREENVILLE.
• Court: North Carolina Supreme Court

93 S.E. 850

174 N.C. 311

LANIER ET AL. v. TOWN OF GREENVILLE.

No. 173.

Supreme Court of North Carolina

October 17, 1917

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

Action by J. C. Lanier and others against the Town of Greenville. Judgment for plaintiffs, and defendant appeals. No error.

Brown and Walker, JJ., dissenting.

The ministerial duties of sheriff may be performed by deputy who acts for sheriff and in his name.

This is an action brought by the plaintiffs against the defendant for the recovery of damages alleged to have been sustained by them on account of the taking by the town of Greenville, for the purpose of widening Pitt street, of a strip of land belonging to them, which the jury found to be 85 feet by 8.8 feet wide at one end, and 10.6 feet wide on the other end.

Prior to the widening of Pitt street said street was a narrow alley, undrained, very little traveled, except in case of absolute necessity, and, as one witness expressed it, "a mudhole from beginning to end." On one side thereof was a high board fence, with cedar trees on the part of the street opposite plaintiffs' property, and with no sidewalks whatever. The street in question leads directly from Dickinson avenue, the main thoroughfare of Greenville to the river bridge.

The board of aldermen, pursuant to powers vested in it by the charter of the town of Greenville, found it necessary, in order to render said street safe for traffic, and in order to promote the interests of the traveling public coming from the north side of the river, to widen, drain, improve, and pave said street and lay thereon concrete sidewalks, and, pursuant to resolutions duly passed by the board of aldermen, the said street was widened and drained, and asphalt pavement was laid thereon and concrete sidewalks built, by reason of which the plaintiffs brought this action, claiming that they had been damaged in the sum of $1,000, at the same time admitting the power of the board, under the charter of the town of Greenville, to appropriate and use said property for public purposes; the defendant, on the contrary, contending that by reason of the building of said sidewalks and the widening and draining of said street the plaintiffs' property had been greatly and peculiarly benefited, and its value enhanced in excess of any damage that they had sustained.

When the case was called the defendant stated that it was ready for trial, but that there had been no proper jury summoned to try the case, and entered a challenge to the array, upon the following grounds, to wit: For that the said jury had not been drawn by the commissioners pursuant to section 1959 of the Revisal of 1905, providing that the jury shall be drawn at least 20 days before each term, and for that said jury had been attempted to be drawn pursuant to section 1963 by a deputy sheriff, the register of deeds, and two justices of the peace on the 12th day of May, 1917, within less than 20 days before the beginning of the May term of said court, said court having begun on the 21st day of May, and for said reasons the said challenge to the array was entered. His honor denied said challenge, and the defendant excepted, and his honor found the following facts: That J. C. Gaskins is register of deeds of Pitt county and clerk to the board of county commissioners; that the jury was drawn on the 12th day of May, 1917; that the said register of deeds, after the board of county commissioners had failed to draw the jury and the board of county commissioners had adjourned and gone to their homes, said register of deeds and clerk to the board of county commissioners of Pitt county notified the sheriff that it would be necessary for the sheriff and register of deeds and two justices of the peace to draw the jury, as the board of county commissioners had failed to do so; thereupon the sheriff told his deputy, J. L. Taylor, to attend and assist at the drawing of the jury; that J. L. Taylor is deputy sheriff, J. C. Gaskins is register of deeds and clerk of the board of county commissioners; that B. F. Tyson is a justice of the peace, and that J. T. Smith is justice of the peace; that said Gaskins, register of deeds, J. L. Taylor deputy sheriff, B. F. Tyson, justice of the peace, and J. T. Smith, justice of the peace, were present in the office of the register of deeds, and drew the jury for this term of court in the usual way, that is to say, having a boy under ten years of age to draw the names of the jurors in box No. 1; that the jurors were drawn by a boy under ten years of age, and all jurors thus drawn are competent jurors, unless the method of drawing them makes them incompetent, as matter of law. The jurors were drawn from box No. 1, and slips of paper upon which names were written after being drawn out and copied as jurors were placed in box No. 2.

The sheriff and justices of the peace made no formal return to the register of deeds of what they had done in drawing the said names, and that the register of deeds gave a list of the jurors thus drawn, with the usual order, to summon 16 jurors, to the sheriff, and that the register of deeds issued no formal written order for the justices of the peace and the sheriff to meet for the drawing of the jury, but called them over the telephone, and they did actually appear as above set out in response to the call of the register of deeds.

There were several exceptions to the refusal to give several prayers for instructions, all of which relate to the principle in the following prayer for instruction which was refused:

"If you find by the greater weight of the evidence that the plaintiffs were the owners of the strip of land alleged to have been taken by the defendant, then I charge you that the damages that the plaintiffs are entitled to recover would be the actual value of the land taken at the time of its taking, and in assessing these damages it would be your duty to take into consideration the value of the plaintiffs' property immediately before the taking and immediately after the taking, taking into consideration any enhancement in value of the plaintiffs' property by reason of the improvements which the defendant alleges that it made in widening Pitt street. If the improvement has increased the value of plaintiffs' property, and you find that the plaintiffs' property has been benefited more than damaged, then the plaintiffs would not be entitled to recover anything, and it would be your duty to answer the issue as to damages 'Nothing,' or if you find that the benefits which the plaintiffs have received, if you find that they have received any, equalize the damage which they have suffered, that is to say, that the benefits accruing to the plaintiffs by reason of the improvements made by the defendant in widening the street are equal to the damages which you find that plaintiffs suffered, if you find they suffered any, then it would be your duty to answer the issue as to damages 'Nothing.' "

His honor charged the jury as to the measure of damages as follows:

"The measure of damages in this particular case is the difference between the reasonable market value of this lot of Lanier's before this strip of land was taken and the reasonable market value of this lot immediately after it was taken, and the difference between the two would be the measure of the damages, that is, whatever you may find that to be, less such peculiar benefits and advantages as have accrued to the land in controversy, not common to all other people who live on that street which it improved. It does not mean that, because one man has special benefits and two or three others or all others have special benefits, it must be some special benefit, some special advantage, that is not common and peculiar to every other land or property along the street."

The defendant excepted.

The jury returned a verdict assessing the plaintiffs' damages at $750, and the defendant appealed from the judgment rendered thereon.

Albion Dunn, of Greenville, for appellant.

D. M. Clark and J. Conrad Lanier, both of Greenville, for appellees.

ALLEN J.

The defendant does not allege that there was any corruption or intentional misconduct in the drawing of the jury, or that anything was done prejudicial to the development of its defense. On the contrary, the defendant announced its readiness for trial, and, so far as the record shows, the trial was had before an impartial jury, satisfactory to the defendant.

We may then deal with the legal questions raised by the...