11 S.E.2d 459 | N.C. | 1940
Special proceeding under C. S., 2791-2792 and 1705, et seq., to condemn right of way, privilege, or easement, over respondent's land for extension of municipal sewer line.
It is set out in the petition that the city of Gastonia, in order to meet the necessity of extending its sewerage system, "has constructed and is constructing a sewer pipe line across the lands of the defendant . . . described as follows: Beginning at a point in the center of the Gastonia-Dallas Highway . . . containing 25 1/4 acres"; that petitioner and respondent have failed to agree upon the compensation that should be paid for such right of way because of the excessive demand of the respondent, and that respondent has denied to petitioner the right to construct the line across his lands.
Demurrer interposed on the ground that the petition contains no description of the property sought to be condemned and fails to show the location of the line by map, profile, or otherwise.
Demurrer overruled, and respondent appeals.
It is provided by C. S., 1716, that in condemnation, the petition, when filed by the condemnor, "must contain a description of the real estate which the corporation seeks to acquire." This we apprehend means a description of the property sought to be acquired and not merely a description of the entire tract over which the right of way, *511
privilege, or easement is to run. The right of way is to be located before it can be taken. It must be fixed and not fugitive. See Johnston County v.Stewart,
In the present state of the record, we are constrained to reverse the ruling on the demurrer for insufficient description of the property sought to be condemned, with the observation that petitioner may apply to the court below, under C. S., 515, for leave to amend the petition, if so advised. This might have been done in the first instance under 3 C. S., 513. Petty v. Lemons,
Reversed.
