Penn v. Carolina Virginia Coastal Corp.
| Decision Date | 01 March 1950 |
| Docket Number | No. 23,23 |
| Citation | 57 S.E.2d 817,231 N.C. 481 |
| Court | North Carolina Supreme Court |
| Parties | PENN et al. v. CAROLINA VIRGINIA COASTAL CORPORATION et al. |
Frank B. Aycock, Jr., Elizabeth City, Frank P. Hobgood, Reidsville, for petitioners-appellants.
Harry McMullan, Jr., Washington, for defendants-appellees.
Taking the facts alleged in the petition to be true, as is done in a civil action in this State, in considering the sufficiency of a pleading to withstand the challenge of demurrer, and applying applicable principles of law, the court properly held that the allegations of the petition are insufficient to state a cause of action.
The Act of the General Assembly of 1949, Chapter 1024 of 1949 Session Laws of North Carolina, authorizes the creation of, and prescribes the machinery by petition for creating a municipal corporation for the purpose of acquiring rights of way for and owning and operating a toll road or highway in this State in the public interest. The Act also provides in Section 6 that such municipal corporation, when so created and organized in the manner prescribed, is 'authorized and empowered to lay out, open up, own and construct and operate a toll road over the route designated in the petition'. And the Act further provides in Section 7 that: 'In the event the said municipal corporation is unable to agree with the owner of the land across whose land a toll road or highway is to be constructed as to the acquisition of the right of way across such land for the use and operation of the said toll road, the said municipal corporation shall have the right to acquire such easement and right of way by eminent domain upon compliance with the provisions of the Public Works Eminent Domain Law, set forth in Article 3 of Chapter 40, of the General Statutes * * * or such right of way may be condemned in accordance with provisions of Article 2 of Chapter 40 of the General Statutes of North Carolina.'
Thus it appears that the corporation is given the choice of remedies in the event it is unable to agree with the land owner.
And in the present action the petitioners, owners of the land, have undertaken to chart the course, on the theory that they, as owners of the land, may proceed under the provisions of Article 2 of Chapter 40 of the General Statutes of North Carolina. But it appears that petitioners have, in athletic parlance, 'jumped the gun', that is, started this proceeding before their right to do so has accrued.
In this connection it is provided in Article 2 of Chapter 40 of the General Statutes, G.S. § 40-11, that 'if any corporation, enumerated in G.S. § 40-2, possessing by law the right of eminent domain in this state, is unable to agree for...
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Long v. City of Charlotte
...affecting it in such a way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof." Penn v. Coastal Corp., 231 N.C. 481, 57 S.E.2d 817 (1950). Obviously not every act or happening injurious to the landowner, his property, or his use thereof is compensable. La......
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Wilkie v. City of Boiling Spring Lakes
...defined a "taking" in Long v. City of Charlotte, 306 N.C. 187, 199, 293 S.E.2d 101, 109 (1982) (quoting Penn v. Carolina Virginia Coastal Corp., 231 N.C. 481, 57 S.E.2d 817 (1950) ), as "appropriating or injuriously affecting [private property] in such a way as substantially to oust the own......
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Braswell v. State Highway and Public Works Commission
...requiring payment of compensation is taken from 18 Am.Jur. 756 and is quoted as correctly stating the law in Penn v. Carolina Virginia Coastal Corp., 231 N.C. 481, 57 S.E.2d 817. Each of the exceptions to the charge have been examined; but when considered as a whole and not in disconnected ......
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Smith v. City of Charlotte
...property under color of legal authority for a public purpose. 306 N.C. at 199, 293 S.E.2d at 109, citing Penn v. Carolina Virginia Coastal Corp., 231 N.C. 481, 57 S.E.2d 817 (1950). Public purpose is defined if at all by statute. State v. Core Banks Club Properties, Inc., supra. The Long co......