90 S.E. 289 | N.C. | 1916
The order was to restrain the defendants from laying out a public road pursuant to chapter 717, Public-Local Laws 1915.
There was judgment dissolving restraining order and appointing a jury to assess damages, pursuant to general road law, Ashe County, and plaintiff excepted and appealed.
The act in question, chapter 717, Public-Local Laws 1913, appoints defendants as commissioners and directs them to lay out a certain highway in Ashe County over the lands of plaintiffs and others, and it is objected to his Honor's judgment that the statute is unconstitutional in that it makes no provision, or no adequate provision, for *412
the award and payment of the damages that may be suffered by the plaintiff and others, landowners along the designated route. Regarded as a separate and independent piece of legislation, the objection might be sustained, but the statute is, and purports to be, an amendment to the general road law, Ashe County, as contained in chapter 185, Public-Local Laws 1913, and chapter 286, Laws 1899, expressly recognizes these acts as existent and controlling except as modified, and they thus become, together, the law regulating the subject and to be construed and (361) applied as a whole. Keith v. Lockhart,
It is recognized with us that in these statutes taking over property for public use under powers of eminent domain a landowner is not of right entitled to notice as to the appropriation of his property, and that it suffices if proper notice is given and opportunity afforded to appear and *413
contest the question of damages. Kinston v. Loftin,
Sections 25 and 26, however, of the general statute applicable, chapter 286, Laws 1899, as stated, provide for an appeal in case of laying out, discontinuing, or altering a highway, and the matter of fixing the grade and assessing the damages being usually incident to such a procedure, we incline to the opinion that the right of appeal as to the amount of damages is within the true intent and meaning of the statute. And, in any event, this matter of awarding the damages, being to a large extent a judicial question, unless the statute clearly shows that the action of the appraisers is to be considered final, it has been held that the Superior Court, in the exercise of its general powers of supervision and control over any and all subordinate tribunals, may, in proper instances, bring the cause before it for review, assuredly so in case of manifest and gross abuse. S. v. Tripp,
In no aspect of the matter, therefore, can the objection be sustained, that the statute is invalid, and, on the record, we are of opinion that the restraining order should be dissolved and the action dismissed.
Modified and affirmed.
Cited: Sheets v. Miller,