31 S.E. 853 | N.C. | 1898
At the conclusion of the evidence his Honor said that in no view of the evidence were the plaintiffs entitled to a verdict and judgment, whereupon the plaintiffs submitted to a judgment of nonsuit and appealed.
On the chief matter in dispute, and the only one necessary for us to consider in our view of the case, there was no conflict in the evidence, and from it the following facts might have been agreed upon by the parties as upon a controversy submitted without action if they had so desired; that in August, 1891, G. W. Cannon was in the possession and actual occupation of a parcel of land described in the (638) pleadings; that Cannon being the owner of the property theretofore on 13 June, 1890, executed a deed of trust to C. J. McCape upon the lot to secure a debt due to Mrs. Hendrickson; that on 11 August, 1891, the proper authorities of the city of Asheville, in the manner required by the Private Laws of the General Assembly of 1883, ch. 111, condemned for the purposes of a public street a part of the lot described in the complaint; that the jury summoned to assess the damages made report, to which report, on account of insufficiency of damages, Cannon made exception; that by consent of defendant and Cannon, arbitrators were appointed to settle the matter and to fix the amount of damages; that the arbitrators met and agreed upon the damages, reported the same and the amount was paid by the city to Cannon; that notice of condemnation was given to Cannon and no notice given to McCape, trustee; that the land, since its condemnation in 1891, has been used as a public street; that under a sale of the property made by one Westall, a substituted trustee in place of McCape, in 1895, the plaintiff became the purchaser of the whole lot of land and received a deed therefor. *442
In the argument here the counsel for the plaintiffs questioned the power of the city authorities to condemn the piece of land for a public street, but upon a review of the trial it appears that the objection was not made in the court below. The case was tried on the theory that the land had been condemned and the street laid out by the city authorities under the powers of law and under the authority of the act of the General Assembly. The meeting of the jury for the assessment of damages, the dissatisfaction of Cannon to the amount of the assessment, (639) the submission of the dispute between Cannon and the city authorities on the question of the assessment, the award of the arbitrators and the payment of the amount mentioned in the award were all put in evidence by the defendants without objection on the part of the plaintiffs. The contention on the trial below was, not that the city authorities acted ultra vires, but that they failed to give notice of condemnation proceedings to the trustee McCape; that the notice to Cannon, the equitable owner, who was in possession at the time of condemnation, was not a sufficient notice and that the whole proceeding was void. It is a fundamental principle that the State in the exercise of the right of eminent domain cannot appropriate the property of an individual without making to the individual due compensation for the property taken. It cannot be, however, that in a case where a city has condemned a piece of land, the property of an individual, for the purpose of a public street that the proceeding can be held void, because of a failure to give notice to all persons who may have had an interest in the land. If the proceedings of condemnation be infra vires the condemnation and appropriation to the public use of the land must stand, and the only question that can be left for settlement would be the compensation to the owner of the property. Land v. R. R.,
Affirmed. *443
(640)
