The power of eminent domain is one of the attributes of a sovereign state. The right to take private property for public use exists independently of constitutional provisions. In fact, such provisions are limitations on the state’s power to exercise the right.
When the State of North Carolina, or one of its subdivisions or agencies thereto lawfully authorized by proper legislation, undertakes to condemn private property, the court will determine as a matter of law whether the proposed use is for a public purpose.
Charlotte v. Heath,
Having determined that slum clearance as contemplated by G.S. 160, Article 37, qualifies as a public purpose, we hold the act fixes safeguards and standards sufficiently definite to enable the petitioner, the *224 City of Greensboro and its agencies, to set up and establish a slum clearance project embracing blighted areas in the city. In order to establish petitioner’s right to take the respondents’ property by condemnation, the petition must affirmatively show compliance with the statutory requirements. These requirements are set forth in the act. They are fully discussed in Redevelopment Commission v. Bank, supra. Among the requisites are: a properly approved redevelopment plan showing the boundaries of the area, existing uses, proposed uses, population density, proposed changes in zoning ordinances, street layouts, a feasible plan for the relocation of displaced families, and “(7) A statement of the estimated cost and method of financing of acquisition of the redevelopment area, and of all other costs necessary to prepare the area for redevelopment.” G.S. 160-463,1961 Cumulative Supplement.
Subsection (c) provides: “A commission shall not acquire real property for a development project unless the governing body of the community in which the redevelopment project area is located has approved the redevelopment plan, as hereinafter prescribed.” The section then sets out what the plan must include.
The adoption of the plan is equivalent to a cease and desist order preventing any development, rental, or sale of the property within the area. In order that property owners may be protected against threatened taking which is never consummated, the act wisely requires a showing .that the acquiring agency has a lawful plan by which, among other things, it may lawfully finance the whole area. Each landowner has the right to know that the taking agency has on hand the money to pay for his property or, in lieu thereof, has present authority to obtain it. Having held the acquisition is for a public purpose, we must not be understood as holding that the acquisition is for a necessary public purpose.
The petitions in these proceedings fall far short of the showing required. This Court considered a similar deficiency in the case of
R.R. v. R.R.,
Each-of the two small parcels of land here involved is the subject of a separate condemnation proceeding. The two proceedings appear to have been joined because the respondents owned both lots. We may seriously question whether the Legislature contemplated a separate judicial proceeding for each lot or parcel of land any more than it contemplated a separate plan for each parcel. It seems obvious the plan embraces the whole area as a unit. Certain it is that ability to finance the acquisition of one or two tracts is not a showing of a proper plan for financing the development, including the arrangements for relocating displaced families.
Reason does not appear why the condemnation proceedings covering the whole planned area may not be instituted and all interested parties served with process and all defenses heard, leaving only the question of just compensation due each respondent to be determined in a separate inquiry. Condemnation under the power of eminent domain is a proceeding in rem • — • against the property. 18 Am. Jur., § 112, p. 738. Each owner is entitled to defend upon the ground his property does not qualify for the purpose intended, or that its selection was the result of arbitrary or capricious conduct on the part of the taking agency. The case of
North Carolina ex rel Transportation Advisory Commission v. Wilmington-Wrightsville Beach Causeway Company, Tidewater Power Company, Shore Acres Company, Pennsylvania Company, et al,
“Where it is sought to condemn several tracts of land belonging to different owners, all the owners may be joined in one proceeding, in the absence of any statutory provision to the contrary. Such a course is convenient, and can injure no one if damages are separately assessed to each owner.” 29 C.J.S., § 236, p. 1204. “In Virginia, there being no statute requiring a separate proceeding as to each landowner, several owners of land sought to be condemned may be convened in one proceeding.”
City of Richmond v. Dervishian,
In
Rudacille v. State Commission,
If, however, the petitioner elects to institute a separate and distinct proceeding for each parcel of land taken, it must, in each instance, allege all the facts necessary to justify the taking.
The petitions in these proceedings were fatally defective. The respondents were permitted to file demurrers
ore terms
challenging the sufficiency of the petitions. Even without the demurrers, it would be our duty
ex mero motu
to take notice of the defects which appear upon the face of the records.
Skinner v. Transformadora,
S.A.,
The judgment of the superior court is
Reversed.