State ex rel. Rhodes v. Simpson, 91 N.C. App. 517

State ex rel. Rhodes v. Simpson

91 N.C. App. 517 | N.C. Ct. App. | 1988

PHILLIPS, Judge.

Though the State’s appeal is from an interlocutory order, it is authorized since the right not to have a case tried by a jury is a substantial right, no less than is the right to a jury trial. Fair-cloth v. Beard, 320 N.C. 505, 358 S.E. 2d 512 (1987). The only question it presents is whether the following guarantee:

In all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and shall remain sacred and inviolable.

contained in Section 25 of Article I of the North Carolina Constitution applies to this case. The trial court held that it does and we agree.

Though Section 25 contains no such qualification the State correctly notes that it has been construed to apply only to actions *519respecting property in which the right to a jury trial existed either at common law or by statute before the 1868 Constitution became operative and for actions created since then the right to a jury trial depends upon statutory authority, The Chowan & Southern Railroad Co. v. Parker, 105 N.C. 246, 11 S.E. 328 (1890); and it points out that in the absence of an enactment authorizing a jury trial it has been held that there is no right to a jury trial in several actions created by the General Assembly since 1868, among which are disbarment proceedings, North Carolina State Bar v. DuMont, 304 N.C. 627, 286 S.E. 2d 89 (1982), proceedings to terminate parental rights, In re Clark, 303 N.C. 592, 281 S.E. 2d 47 (1981), and actions for equitable distribution, Phillips v. Phillips, 73 N.C. App. 68, 326 S.E. 2d 57 (1985). Based on these holdings the State argues that since this action was recently created by the legislature without providing for a jury trial the constitutional guarantee does not apply. We disagree; for the controversy is at law and respects property, as the constitutional provision requires, and the action is of a type that has always been accompanied by a right to trial by a jury.

A controversy is one “respecting property” if it affects any right in the property or in its use, Belk’s Department Store, Inc. v. Guilford County, 222 N.C. 441, 23 S.E. 2d 897 (1943), and this controversy affects defendant’s right to use her property as she sees fit. The action is “at law,” since its purpose is not merely to restrain defendant from violating the acts in the future, but to rectify the damage allegedly done to the land held in trust for the public by requiring her to restore the land to its former condition or pay damages therefor. That damages were not prayed for in the complaint is immaterial, they can be recovered if the evidence warrants. Peele v. Hartsell, 258 N.C. 680, 129 S.E. 2d 97 (1963). Thus, this is an action for damage done to real estate, as ancient an action as the common law knows; and also an action for misusing land to the detriment of the public, which in essence is the ancient action to abate a nuisance, as the Supreme Court of the United States recognized in Tull v. United States, 481 U.S. —, 95 L.Ed. 2d 365, 107 S.Ct. 1831 (1987); and in this State a landowner charged with making a public nuisance of his property is entitled to a jury trial if timely demand therefor is made. State ex rel. Bowman v. Malloy, 264 N.C. 396, 141 S.E. 2d 796 (1965). That the alleged detriment to the public good in this instance— *520the destruction of coastal wetlands and the contamination of estuarine waters — did not arouse the public until recently does not make an ancient action a new creation. Landowners who use their property to the detriment of the public and others have always been subject to the law’s authority in this State; in exercising that authority the ancient practice has been followed of using a jury to determine the disputed facts if requested, and for the reasons stated that practice must be followed in this case.

Affirmed.

Chief Judge HEDRICK and Judge EAGLES concur.