Lloyd v. Venable

• Decision Date: 07 April 1915
• Docket Number: 317.
• Citation: 84 S.E. 855,168 N.C. 531
• Parties: LLOYD v. TOWN OF VENABLE.
• Court: North Carolina Supreme Court

84 S.E. 855

168 N.C. 531

LLOYD v. TOWN OF VENABLE.

No. 317.

Supreme Court of North Carolina

April 7, 1915

Appeal from Superior Court, Orange County; Foushee, Judge.

Action by B. H. Lloyd against the Town of Venable. Judgment for plaintiff, and defendant appeals. Affirmed.

Where the issues submitted are sufficient to present all controverted matters to the jury, this is all that is required.

Jno. W Graham and Alexander H. Grabam, both of Hillsboro, for appellant.

A. H Koonce, of Chapel Hill, and Bryant & Brogden, of Durham, for appellee.

WALKER J.

This action was brought by plaintiff to recover damages of the defendant for having taken and appropriated a part of his land in the town for the purpose of opening a street. The town of Venable (now Carrboro) was incorporated by Private Laws of 1911, c. 315. There is no provision in its charter for condemning land for streets, though there is a provision that the taxes shall be used in defraying the expenses of the town, "and in repairing streets and sidewalks and keeping them in good order." Nor is there any provision in the general law for the condemnation of land for streets by cities and towns, the provision in regard to streets being substantially the same in the general law as in the charter of defendant. The first position of defendant is that the common-law remedy of trespass for the taking of property for public purposes is superseded by the statutory remedy, and for this contention he cites numerous cases. McIntire v Railroad, 67 N.C. 278; Land v. Railroad, 107 N.C. 72, 12 S.E. 125; Dargan v. Railroad, 131 N.C. 625, 42 S.E. 979; Abernethy v. Railroad, 150 N.C. 107, 63 S.E. 180. But in all those cases provision had been made for condemnation, including compensation. It was therefore very correctly held that the remedy of the statute was exclusive. But, when no such remedy is given, the landowner, where property has been taken for the laying out of streets, may resort to his common-law action for compensation; otherwise he would be without remedy. "The right of eminent domain," as said in 15 Cyc. 567, "is one which lies dormant in the state until legislative action is had pointing out the occasion, mode, conditions, and agencies for its exercise, and the right to exercise the power must be conferred by statute, either in express words or by necessary implication. The power should not be gathered from doubtful inferences, but should be unmistakably expressed," or, as above stated, clearly and necessarily implied. There is no inherent power residing in a municipality to condemn property for its uses. 4 McQuillin on Mun. Corporations, § 1459. We have held, approving the principle as stated in 1 Lewis on Eminent Domain, § 240, that:

"The exercise of the power being against common right, it cannot be implied or inferred from vague or doubtful language, but must be given in express terms or by necessary implication. If the act is silent on the subject, and the powers given by it can be exercised without resort to condemnation, it is presumed that the Legislature intended that the necessary property should be acquired by contract. Thus the authority to construct and maintain booms or bridges does not carry with it the right to condemn property. If the act makes no provision for compensation, it is presumed that the Legislature did not intend that the power of eminent domain should be exercised." Commissioners v. Bonner, 153 N.C. 66, 68 S.E. 970.

The subject is fully discussed by Justice Hoke in that case, and many cases are cited in support of the doctrine. The following authorities may be added:

"It requires legislative action, embodied in the form of a statute, to confer a right to appropriate private property, for the Constitution does not either create or execute the right of eminent domain. It is only called into exercise by the ruling power, and with us that is the Legislature, acting under the Constitution and in accordance with its terms." Elliott on Roads and Streets (Ed. of 1890) 148.

"While it is true the Legislature, in the charter of the city of Waycross, granted power to the municipality to lay out and open streets, * * * it did not grant power to take or damage private property for the purpose, or to provide by ordinance for assessing or otherwise ascertaining the amount of compensation." B. & W. R. Co. v. Waycross, 94 Ga. 102, 21 S.E. 145.

"The right which a municipality has to take or damage private property for public use is no greater, because it has an element of sovereignty in it, than is that of any other corporation having the eminent domain power. No milder or more liberal rule of interpretation of the Constitution will be indulged in where the taking or damaging is done by a municipality than is to be applied to all alike." Jackson v. Williams, 92 Miss. 301, 46 So. 551.

"No principle of law is better settled than that a municipal corporation can only exercise the right of eminent domain when conferred upon it by the Legislature, expressly or by necessary implication, since a municipal corporation has no more right than any other corporation to condemn property." McQuillin on Mun. Corp. § 1459.

There is no express or implied authority in defendant's charter to condemn land for streets, and the entry upon the plaintiff's property was therefore unlawful; but as the town authorities could contract for the purchase of the land necessary for its purposes, and as it authorized the entry, the plaintiff can waive the tortious entry and the want of power to condemn, and recover a just and reasonable compensation for the property taken, and this remedy is based upon the reason that there is an implied assumpsit by the town that, as it has taken the property of the plaintiff and applied it to its own use and has received and enjoyed the benefit of its use and appropriation, it should pay therefor its reasonable value, and the law, recognizing its duty, implies a promise on its part to do what, in equity and good conscience, should be done. Referring to a similar case, the court said in United States v. Lynah, 188 U.S. 445, 465, 23 S.Ct. 349, 355, 47 L.Ed. 539, 546:

"The government may take real estate for a post office, a courthouse, a fortification, or a highway; or in time of war it may take merchant vessels and make them part of its naval force. But can this be done without an obligation to pay for the value of that which is so taken and appropriated? Whenever in the exercise of its governmental rights it takes property, the ownership of which it concedes to be in an individual, it impliedly promises to pay therefor. Such is the import of the cases cited, as well as of many others. The action which was taken, resulting in the overflow and injury to these plaintiffs, is not to be regarded as the personal act of the officers, but as the act of the government. That which the officers did is admitted by the answer to have been done by authority of the government, and, although there may have been no specific act of Congress directing the appropriation of this property of the plaintiffs, yet if that which the officers of the government did, acting under its direction, resulted in an

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