143 N.C. 247 | N.C. | 1906
This was a proceeding under Laws 1901, cb. 50, sec. 5, as amended by Laws 1905, eh. YYO, sec. 1 (2). Tbe notice to Wittkowsky that tbe strip1 of bis land bad been taken for public purposes was not tbe beginning of legal proceedings. Tbe “taking” was under tbe right of eminent domain and was not contested. Tbe above-quoted section provided that any person aggrieved “may within six months after said change of road, or new road has been opened and completed, apply to tbe Clerk of tbe Superior Court, who shall appoint a jury to consist of five freeholders to assess the damages.” This was tbe beginning of these proceedings, whose object was solely to assess damages.
It is true that tbe statute does not in terms require that notice of tbe proceeding should be given to tbe Township Trustees and County Commissioners, but that is required under tbe “law of tbe land” — that general law “which proceeds upon inquiry and renders judgment only after trial.” In Gamble v. McCrady, 75 N. C., 509, it was held that an assessment of damages was void for want of notice, though no notice was required by the statute under which those proceedings were had. That a notice must be given, as of right, is recognized. State v. Jones, 139 N. C., 618.
The Clerk, on motion, dismissed the proceeding as premature — doubtless on the ground that the statute provides that the land-owner must institute this proceeding “within six months after said change of road or new road has been opened and completed.” But this, we think, means simply that the proceeding to assess damages shall be begun “within,”
We think his Honor took the correct view in remanding the proceeding to the Clerk with directions to give notice to the Township Trustees and County Commissioners, that they may be represented when the jury of five men are selected, and that- said jury must give notice and hear all parties before assessment of damages. Their report will be subject to action of the Clerk upon exceptions and an appeal therefrom.
The case being before the Judge on appeal, it was optional with him to try it or remand to the Clerk with instructions. Martin v. Briscoe, ante. As the notices, if given before the Judge, would have carried the case over to the next term, the course taken was preferable, especially as the jury appointed by the Clerk will have a better opportunity to view the premises.
Affirmed.
