Parker v. State Highway Commission

• Decision Date: 23 June 1928
• Docket Number: 219.
• Parties: PARKER et al. v. STATE HIGHWAY COMMISSION et al.
• Court: North Carolina Supreme Court

143 S.E. 871

195 N.C. 783

PARKER et al. v. STATE HIGHWAY COMMISSION et al.

No. 219.

Supreme Court of North Carolina

June 23, 1928

Appeal from Superior Court, Duplin County; Harris, Judge.

Action by G. B. D. Parker and others against the State Highway Commission and Board of Commissioners of Duplin County and others to enjoin the State Highway Commission from abandoning part of a state highway in Duplin County as previously located in compliance with statutory provisions, and for mandamus requiring both defendants to construct said state highway in accordance with provisions of a certain contract previously entered into by and between said defendants. From a judgment sustaining the demurrer to the complaint filed by each of the defendants, plaintiffs appealed. Affirmed.

Clarkson and Brogden, JJ., dissenting.

H. D Williams and L. A, Beasley, both of Kenansville, for appellants.

Chas Ross, Asst. Atty. Gen., for appellee State Highway Commission.

Gavin & Boney, of Kenansville, for appellee Board of Com'rs of Duplin County.

CONNOR J.

It appears from the complaint in this action that, prior to April 28, 1925, the defendant, the state highway commission pursuant to the provisions of chapter 2 of the Public Laws of 1921, designated, as one of the roads to be taken over by said highway commission as part of the state highway system, a certain public road, leading from the town of Kenansville, the county seat of Duplin county, by way of Hallsville in said county, to the Duplin-Onslow line, and thence by Catherine Lake, in Onslow county, to the town of Jacksonville, the county seat of said county. The said road was shown on the map posted at the courthouse door in Kenansville, as required by statute, and, no protest having been filed, it was thereafter adopted and taken over by said highway commission as part of the state highway system. It has since been under the control, supervision, and maintenance of the said highway commission as a part of route No. 24 of the state highway system between Kenansville and Jacksonville.

Thereafter the board of commissioners of Duplin county entered into negotiations with the state highway commission, which resulted in a contract, in writing, dated April 28, 1925, by which the said board of commissioners agreed to advance the state highway commission the sum of $400,000, to be used by said highway commission in the construction of certain roads in Duplin county, which had been theretofore designated and taken over by said highway commission as parts of the state highway system. One of the said roads to be constructed under said contract is the road leading from Kenansville to the Onslow county line. The state highway commission agreed to accept from the board of commissioners of Duplin county, the said sum of $400,000, and to expend the same in the construction of the roads described in said contract, "in accordance with locations to be determined upon by the said North Carolina State Highway Commission." This contract has been complied with by the board of commissioners of Duplin county, and the state highway commissioner has expended part of the sum advanced by said board in the construction of said roads. No part, however, of the road leading from Kenansville to the Onslow county line had been constructed prior to May 31, 1927.

On May 31, 1927, the state highway commission, pursuant to the provisions of chapter 46 of Public Laws of 1927, and in accordance therewith, notified the board of commissioners of Duplin county that said highway commission proposed to change, in part, the location of the highway leading from Kenansville to the Onslow county line, so that said highway would depart from the original location at Miller's crossroads, and would run thence by Beulaville, to the original location of said highway, at or near Fountain's store, thereby abandoning so much of said highway as ran from Miller's crossroads by Hallsville to Fountain's store. Protest was made by the board of commissioners of Duplin county to this proposed change in the location of said highway. This protest was heard by a committee from the state highway commission. It was not sustained. The board of commissioners gave notice of appeal from the decision of the committee to the state highway commission. Pending the hearing of said appeal, an agreement was entered into by and between the said board of commissioners and the said highway commission, by the terms of which the said appeal has not been prosecuted. The state highway commission is now engaged in the construction of the highway from Kenansville to the Onslow county line, by way of Beulaville, and threatens to abandon that part of said highway which runs from Miller's crossroads by way of Hallsville to the said Onslow county line.

Plaintiffs, residents of Duplin county, in behalf of themselves and of all other citizens and taxpayers of the state of North Carolina, who may make themselves parties hereto, have brought this action against defendants, the state highway commission, and the members of said commission, as individuals, and the board of commissioners of Duplin county, and the members of said board as individuals. They pray that:

"Defendant, state highway commission, be restrained and enjoined against the abandonment of that part of state highway No. 24, as originally located on state highway map, between Miller's cross-roads by Hallsville, to the Onslow county line, near Fountain's store, and that a mandatory order be issued to all of the defendants, requiring them to construct and hard-surface the said highway No. 24 between Kenansville and the Onslow county line, as provided by

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