Long v. Town of Rockingham

• Decision Date: 20 February 1924
• Docket Number: 425.
• Citation: 121 S.E. 461,187 N.C. 199
• Parties: LONG v. TOWN OF ROCKINGHAM.
• Court: North Carolina Supreme Court

121 S.E. 461

187 N.C. 199

LONG v. TOWN OF ROCKINGHAM.

No. 425.

Supreme Court of North Carolina

February 20, 1924

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

Action by Betsy Long against the Town of Rockingham. Judgment for plaintiff, and defendant appeals. New trial. In this cause a complaint was filed and an answer, an amended complaint and an answer thereto, and a reply.

The plaintiff, Betsy Long, brought this action against the defendant, the town of Rockingham, to recover possession of about 10 15/16 acres of land near the town of Rockingham which she claimed was illegally taken by the town of Rockingham and used as a cemetery, and for damages.

The defendant, town of Rockingham, admits it took possession of land, but contends that it did so legally, under power and authority given it in its charter and the laws of North Carolina applicable to municipal corporations, for cemetery purposes; that the land was condemned in accordance with law that she and her guardian were served with process and her general guardian, W. F. Long, her uncle, was paid full value for the land, more than the jurors allowed. The jurors assessed the land at $350 an acre, and her guardian appealed from the assessment and afterwards accepted $4,375 from the town of Rockingham in full for the land. That his returns as guardian for Betsy Long in the clerk's office for Richmond county shows: "Oct. 25th. To cash from town of Rockingham for 10 15/16 acres land condemned for cemetery purposes $4,375." That each year from 1913 until Betsy Long became of age, the guardian accounts of W. F. Long showed that she was allowed 6 per cent. interest on this amount. That Betsy Long became of age April 17, 1919, and she gave her guardian, W. F. Long, receipts for what he owed her as guardian: April 28, 1919, $5,832.94; June 19, 1919 $1,673.60 in bonds and war savings stamps, and the final receipt with statement of account was as follows:

"$2,031.59 Received of W. F. Long, my guardian, $2,014.55 and $17.14 interest in full settlement of all sums due me, and I hereby release him and his sureties on his bond of any further liability by reason of his guardianship.

This June 19, 1919. Betsy Long."

That in the sums paid Betsy Long was the amount W. F. Long, her guardian, received from the town of Rockingham, with 6 per cent. interest. That she received said sum with full knowledge of all the facts. That the town of Rockingham took possession of the land and has been selling it off in lots for burial purposes. That it and the persons who have purchased lots have spent large sums of money in beautifying the property. That during all of which time Betsy Long and her guardian, her uncle, W. F. Long, have had knowledge of the use made of the property and expenditures. That she came of age April 17, 1919, and waited nearly two years before beginning this action, April 4, 1921.

The defendant, town of Rockingham, in its answer alleges:

"The plaintiff has thereby, and by her other acts and acquiescence in said procedure since she attained her majority, ratified and confirmed the acquisition of said tract of land described in the complaint by the town of Rockingham, as aforesaid set forth, and the plaintiff by her conduct, and by said affirmance and acquiescence and by the procedure aforesaid set forth in this answer, is estopped to assert title or any other interest in and to the tract of land described in the complaint as defendants are informed, advised and believe and therefore allege."

The plaintiff, Betsy Long, replies and says:

"That there has never been any valid condemnation by the town of Rockingham of any of the lands of plaintiff, and the defendant town of Rockingham abandoned even the attempted condemnation and attempted to purchase plaintiff's lands from her guardian, but plaintiff avers that her said guardian had no authority to sell any of her lands to the defendant, and that he made no written contract with the defendant for the sale of any of her lands, and that any attempted verbal contract on his part was and is null and void and incapable of ratification, and she avers that she has never ratified same, and she pleads the statute of frauds in bar of any such alleged contract."

There were seven issues submitted to the jury. We will only consider three we think necessary for the consideration of this case, which are as follows:

"(1) Was the land described in article 2 of the amended complaint condemned for the use of the defendant as a cemetery under the charter of the defendant and the general laws of the state in the years 1912 and 1913, as alleged in the answer?

(2) Did the plaintiff, after she reached the age of 21 years, by acts of her own, waive her right to recover the possession of the land and damages for the taking thereof?

(3) Is the plaintiff the owner of the land described in the amended complaint?"

The defendant has in the record 77 exceptions and assignments of error. The issues submitted and the charge of the court on these issues were duly excepted to. The charge of the court on these three issues were as follows:

"The court is of the opinion that there is not sufficient evidence to warrant the jury in answering that issue, 'Yes,' that is, that there is not sufficient evidence to go to the jury on the question of condemnation, and directs that you shall answer the first issue, 'No,' and the court has answered it for you.

The court is of the opinion that there is not sufficient evidence to go to the jury in warranting them in finding there was a waiver if they should find the evidence to be as testified to by the defendant or by all the evidence, so the court directs you to answer the second issue, 'No,' and the court, to relieve you of that, has already answered it, so you should not disturb yourselves about the first and second issues.

The court charges you that if you believe the evidence you will answer that issue--the third issue--'Yes.' "

There was a judgment for plaintiff, and the defendant excepted and appealed to this court. The other material facts will be set forth in the opinion.

J. C. Sedberry, of Rockingham, U. L. Spence, of Carthage, and Pou, Bailey, & Pou, of Raleigh, for appellant.

Ozmer L. Henry and H. S. Boggan, both of Rockingham, and Parker & Craig, of Monroe, for appellee.

CLARKSON J.

The first issue submitted to the jury raises the question of law--the validity of the condemnation proceeding and constitutionality of the statutes.

In Coble v. Com'rs, 184 N.C. 348, 114 S.E. 489, this court said:

"We should apply the principle that every presumption is to be indulged in favor of the validity of the statute, that the General Assembly is presumed to have acted with an honest purpose to observe the restrictions and limitations imposed by law, and that legislation will be sustained unless its invalidity is 'clear, complete, and unmistakable,' or unless the nullity of the act is beyond a reasonable doubt"--citing authorities. Person v. Doughton, 186 N.C. 724, 120 S.E. 481.

In Parks v. Commissioners, 186 N.C. 498, 120 S.E. 46, it was said:

"It is frequently a perplexing problem to tell how far the individual has to yield his personal and property rights for the common good. * * *"

"Notwithstanding there is no clause in the Constitution of North Carolina which expressly prohibits private property from being taken for public use without compensation; and although the clause to that effect in the Constitution of the United States applies only to acts by the United States, and not to the government of the state, S. v. Newsom, 5 Ired. 50, yet the principle is so grounded in natural equity that it has never been denied to be a part of the law of North Carolina." Johnston v. Rankin, 70 N.C. 555.

See, also, State v. Lyle, 100 N.C. 497, 6 S.E. 379.

The rights of municipal corporations has recently been thoroughly discussed in Gunter v. Sanford, 186 N.C. 460, 120 S.E. 45, by Adams, J. He said, in part:

"In our opinion the statutes in question do not offend against the state Constitution or the due process clause of the federal Constitution. On the other hand they afford the plaintiffs adequate means for litigating the matters in controversy before the board of aldermen, and if desired, by appeal from their decision to the superior court."

"Where the Legislature has prescribed a method of procedure, the statute on the subject must ordinarily be followed." Clinton v. Johnson, 174 N.C. 286, 93 S.E. 776; Proctor v. Com'rs, 182 N.C. 59, 108 S.E. 360; Parks v. Com'rs, supra, p. 497, 120 S.E. 46.

The acts of the General Assembly, the charter of the town of Rockingham and the amendments thereto, were introduced in evidence by the defendant in the trial of the cause in the court below.

Private Laws of N.C. 1909, c. 161, introduced in evidence, provides:

"That the board of commissioners of the town of Rockingham shall have the right, either within or without its corporate limits, to condemn land for cemetery uses, as now provided by its charter for the condemnation of land for streets or other purposes."

The original charter of the town is found in Private Laws 1887, c. 101.

Section 26, as amended by Private Laws 1911, c. 264, relates to condemnation of land for streets and other purposes.

It is contended by plaintiff that the charter under which the town proceeded to condemn plaintiff's land made no provision for condemning infants' lands. The charter provides "to condemn land for cemetery uses." The language is broad and comprehensive and should not be restricted. The intention of the Legislature, if the language is not in direct terms it was by necessary implication, to condemn any one's land--man, woman, infant, etc. It was for a sacred...