*1 N. TERM, 221 0.] Highway Com. v. Basket. in
incapacity
tbe maker
because it was void under tbe statute
frauds,
tbougb may not have been mentioned
J ones
pleadings.
Cohen,
Shelton,
v.
Tbe fact that tbe plaintiffs question offered evidence tbe deed purpose attack, instead to make tbe attack wben waiting tbe defendants bad offered it to tbeir makes no prove title, difference principle. Tbe defendants bad notice in tbey tbeir answer relied question tbe deed title, establish tbeir and would there- fore it in introduce evidence, this notice enabled plaintiffs anticipate tbe defendants by tbe deed for introducing tbe purpose attack.
For tbe errors assigned, plaintiffs are entitled to a New trial.
STATE HIGHWAY AND PUBLIC WORKS COMMISSION v. C. B. BASKET et al. 13 Eminent Domain top § condemn for 6— x’oad construction. by acquire by The State and Public Works Commission is authorized 22, (N. Code, [bb]) eh. see. Public Laws of 1921 C. top soil deemed road construc- tion, “top being “earth,” soil” included its soil is not limited to lands to the which it is to be used. Conroe, J., dissenting. This was a condemnation instituted in proceeding, YaNce Parker, J., beard on 10 Chambers, July, 1937,
Halifax. Charles Ross petitioner, appellee. B. Hicks Jasper Bridgers respondents, appellants. Harris, J. On 3 from July, 1937, tbe petitioner procured ScheNCK, an order temporarily interfering from restraining respondents with its soil from lands of with which taking top to construct a and on public highway, July, 1937, an procured Parker, J., order temporarily restraining peti- tioner from soil from tbeir lands for tbe of con- Both structing public highway. Parker, orders were returnable to THE COURT. IN SUPREME [212
Highway Com. Basket. *2 dissolved joint bearing tbereon, Judge, wbo, bolding Resident after order in effect tbe and continued procured by tbe order tbe retained and directed “tbat tbis cause be procured by petitioner, tbe of tbe determining on special proceeding tbe docket to.” may amount of wbicb tbe defendants be entitled compensation appealed, assigning From errors. ruling tbis tbe 22 of instituted under section of the was proceeding petitioner Tbe Code of 1921 sec. N. C. (being [bb], of tbe Public Laws chapter and con- Highway Commission, of tbe State 1935, Michie), creating Commission of “Tbe State grant power: tbis taining specific to such such of and title rights way is vested with tbe to power acquire stone, or bars, rock, or sand beds land, gravel bars, sand, beds gravel, de- or other earth or mineral lime, or boulders, quarries, quarry beds, necessary may or and timber as it deem formations, standing such posits and tbe and constructions, maintenance, repair, and for road suitable of land and a sufficient amount through, and necessary approaches ways it to as it determine to adjacent thereto, may and enable surrounding or condemna- donation, either work, by purchase, tbe properly prosecute out: . . .” manner hereinafter set tion, first, of tbat tbe statute does respondents, It is tbe contention and soil, necessary to deemed power vest petitioner if does vest second, even tbe statute construction, and, suitable for road to power acquire tbat it does not vest such top soil, power acquire construction highway upon from lands not to tbe contiguous soil of to be used. which such is of contentions of and so tbat neither these opinion, bold,
We are can be sustained. as is a “earth,” wbicb, used, statute uses tbe word Tbe Hoke, J., High- Jennings
and á earth. top soil, species includes “And Commission, statute, says: tbis way C., 68, interpreting right also defendant board tbe section chapter 2, they rocks, beds, bars, soil, or other mineral sand acquire material, gravel and mainte- etc., and suitable tbe construction deposits, necessary . . nance of such roads. .” tbat limits of tbe earth is tbe statute nothing
There and construction, maintenance, for road suitable necessary deemed wbicb it is to be used. to tbe to lands repair is of tbe Tbe It is statute tbat “Tbe State dissenting: provided by CoNÑOR,J., with such power acquire rights way is vested or bars, sand, beds sand or gravel beds lands, gravel, to such and title TEEM, N. O.]
Callahan Roberts. or beds, earth, or lime bars, rock, stone, boulders, quarries, quarry or or and such timber as it deposits formations, standing mineral for road construction, maintenance, deem ways and the and a sufficient repair, necessary approaches through, amount of-land as surrounding adjacent thereto,' may determine, to enable it to the either properly prosecute work, by purchase, donation, the manner hereinafter out.” N. C. Code of set 1935, sec. 3846 (bb). statute,
This as an Highway Commission, authorizes the State agency State, private public use, by take property exercise of eminent domain, strictly. be construed earth,” The words “and other used in statute, be construed in accordance with the dis- ejusdem generis, fully doctrine cussed in 59 C. page 981.
Thus construed, soil,” the words do include not, my opinion, “top valuable I cannot think that growing crops. it was intention of the General Assembly the State under land the statute enter cultivated and to remove therefrom the soil” to “top be used the construction at last highway three miles distant from the land.
I think there is error judgment reversed. be CALLAHAN, by CALLAHAN, WOODROW TOM Friend, His Next ROBERTS Wife, ELIZABETH ROBERTS. Negligence presumed 1. Master and Servant is not from mere fact § 11— injury. plaintiff pushing Evidence that was hurt while lumber off a stack employment measuring the course of his em- when the stick of a fellow ployee eye, struck him the is held insufficient be submitted to jury employer’s negligence on the issue of the in an action instituted Court, negligence being presumed the of not from the mere fact injury. Appeal and Error 41—§ prop- appeal Where it is decided on that the of nonsuit was erly negligence,' excep- entered for want of evidence actionable tions need be considered. Alley, Term, Appeal March plaintiff Mitchell.