11 S.E. 563 | N.C. | 1890
This action was begun to recover the penalty of ten dollars incurred by an alleged violation of an ordinance of the plaintiff, whereof the following is a copy:
"Article 3, sec. 1. Any person or persons allowing obstructions to remain or continue in any street, or streets, or alleys in the town of *95 Henderson, after having been notified by the town constable, shall be fined ten dollars for each day said obstructions shall be allowed to remain.
On the trial before the mayor, the defendant suggested "that (89) the land in controversy is not a street, but the property of the defendant and others," and he insisted that, therefore, the mayor had no jurisdiction. There was judgment for the plaintiff in the mayor's court, and the defendant appealed to the Superior Court. The following is a copy of so much of the case stated on appeal as need be reported:
The defendants moved to dismiss the action because the mayor had no jurisdiction to try the same, because, upon defendants' answer, the title to land was put in issue and involved. His Honor overruled the motion, and defendants excepted.
The plaintiff then offered the charter of the town of Henderson, ratified by the General Assembly 1 April, 1869, and, to show an acceptance of said charter as required by the fifty-first section thereof, introduced the minutes of the proceedings of the commissioners of the town of Henderson, dated 10 April, 1869.
The defendants objected to the reading of said charter, because it appeared affirmatively by the minutes that the election to accept the charter was not held after the ten days' notice required by law.
The plaintiff then introduced an act of the General Assembly (ch. 51, Laws 1883), amendatory of the charter of said town. His Honor thereupon overruled defendants' objection, and allowed the charter to be read, and defendants excepted.
The plaintiff then offered to show that the land in controversy had been duly condemned for the purpose of a street in said town, and, to that end, offered a paper marked "D."
The defendants objected to the reading of said paper —
1. Because it did not appear that there was ever any cause constituted between the plaintiff and defendants in Granville Superior Court in this behalf.
2. It did not appear that there was any cause constituted in (90) said Superior Court at all.
3. That it did not appear that there was any law authorizing the report of the action of the commissioners appointed to open or widen streets in Henderson to be recorded in said Granville County.
4. It did not appear that the defendants were parties to said so alleged record.
5. That said paper was a record of Granville Superior Court. *96
Objection overruled. The paper was read, and defendants excepted.
The defendants then objected to the alleged condemnation of said land because it did not appear that the damages assessed in favor of the several parties, to wit, Reavis and Calvin Betts, had ever been paid to them in hand, or paid into the office of the clerk of the Superior Court of Granville County, as provided by the charter.
His Honor overruled the objection and the defendants excepted.
It was admitted by the defendants that, in the summer of 1885, they openly, and under a claim of title, entered upon the land in controversy, which is a portion of what is called Breckenridge Street in Henderson, built houses thereon, and have had continuous possession thereof up to the time of suing out the warrant in this cause.
Defendants then offered to show that they had perfect title to the land in controversy, claiming the same through Calvin Betts, among others, and that he was the same Calvin Betts for whom the sum of two hundred and fifty dollars was assessed as damages to said land; and also that said sum has never been paid to said Betts, nor the ancestors of the defendants, who were the immediate grantors of said Betts, nor was ever deposited in the clerk's office of Granville Superior (91) Court.
His Honor refused to allow any of said evidence to be offered, and defendants excepted.
The plaintiff offered, without objection, the minutes of the board of commissioners of the town of Henderson, dated 22 June, 1870, 23 June, 1870 and 11 July, 1870, showing the condemnation proceedings as recorded by said board, in addition to a transcript of the record of the report of the three assessors, the said transcript being objected to.
The defendants failed to offer any testimony as to the payment of the money due Betts into the office of the clerk of the Superior Court.
A copy of the ordinance passed 10 May, 1888, was handed to the defendants in three weeks after the ordinance was passed.
The defendants did not offer to prove title, except through Calvin Betts.
His Honor charged the jury that, if they believed the evidence, they should find the issue in favor of the plaintiff, to which charge the defendants excepted.
The jury found the issue for the plaintiff.
The court gave judgment for the plaintiff, and the defendants appealed. The objection that the mayor's court did not have jurisdiction of the action because "the title to land was put in issue and involved," is without force. The title to real estate was not in controversy, in the sense of the Constitution (Art. IV, sec. 27), or of the statute (The Code, secs. 834, 836, 837). The substance of the controversy was, whether or not a public street of the plaintiff had been established, and whether or not the defendants had obstructed the same, in violation of the ordinance specified, and (92) thus incurred the penalty sued for. If the street were established, it was not material to inquire who had title to the land subject to the right of the public. Then, obviously, the mayor had jurisdiction of the action. (Private Acts 1868-69, ch. 79, sec. 15; The Code, sec. 3818.)
Nor can the second exception be sustained. The minutes of the proceedings of the commissioners of the town of Henderson pertinent were put in evidence without objection. They show that an election was held "in accordance with" the section of the statute requiring it to be held, the number of votes cast "for the charter," and the number cast "against the charter," and the majority in favor of accepting the same, and they recite, and the commissioners certify, "that the election was held, in all respects, in accordance with the provisions of said charter," etc. The minutes are such as the statute (Private Acts 1868-69, ch. 79, sec. 51) requires, and certainly imply sufficiently that the notice of election required was given. Besides, the minutes showing that an election was held as directed by the statute, the presumption is that notice was given as required. It does not appear that there was any irregularity as to the election referred to, but if there had been, the Legislature cured the same by recognizing and amending the charter of the plaintiff by the statute (Acts 1883, ch. 51). Besides the charter had prevailed and been observed for nearly twenty years. Moreover, the election could not be attacked in a collateral proceeding. If the defendant was not satisfied with the result of the election mentioned, he should have contested it by proper action brought for the purpose in apt time.
The record in this case is very informal and confused, and the statement of the case on appeal for this Court is imperfect, particularly in stating material evidence that it seems must have been produced on the trial. It does not appear, unless by very vague inference, that a street called "Breckenridge Street" — that alleged to have been (93) obstructed by the defendant — was ever located, laid out, established and used by the public at all in the plaintiff town. "The condemnation proceedings as recorded by" the board of commissioners of the plaintiff put in evidence show that on 22 June, 1870, an order was *98 made by such commissioners, not to lay out such street, but that three freeholders, named, "Be requested to act as appraisers to assess the advantages and disadvantages in opening Breckenridge Street from Chestnut Street to William Street"; that the freeholders so appointed made report, and that their report was adopted by the commissioners. It further appears that the freeholders so appointed returned their valuation and report in respect thereto to the Superior Court of the county of Granville, as the statute required them to do. In that report they state that having been appointed assessors "by the commissioners of the town of Henderson, being duly sworn to view and assess the advantages and disadvantages to the owners of the land arising from the laying off and widening of certain streets in said town of Henderson, and they say that they have viewed the premises on Breckenridge Street, from Garnett Street to Chestnut, and find that no damage accrues to the owners of the land on the righthand side of Breckenridge Street, going down from Garnett to Chestnut Street by reason of widening said streets as proposed. . . . Calvin Betts, who owns a lot in this Breckenridge Street at its mouth on Garnett Street, the majority of the assessosrs [assessors] think is damaged $250, and we so award," etc.
The proceedings, the substance of which is thus stated, constitute all the evidence, so far as appears from the record, produced to show that "Breckenridge Street" was indeed such. It does not appear that the freeholders, assessors, or any other authority whatever gave the landowners, whose land and advantage and disadvantage they (94) assessed, any notice by personal service or otherwise, of their purpose to assess the same, or that they had made such assessment and made report thereof to the commissioners and to the Superior Court of Granville County. It does not appear that this street was opened for public use, or that it was used as a public street at any time. It does not sufficiently appear, as it should do, that the commissioners of the plaintiff exercised their jurisdiction and authority conferred by its charter (Private Acts, 1868-69, ch. 79, sec. 42), to obtain required right-of-way, and open new streets, as to the alleged street in question. If it appeared that it had been laid out — opened — used by the public — that the town authorities had exercised control over it, then there might arise a strong presumption that it had been established by proper authority. In that case, all persons interested would have been put on notice, and they might have taken steps to question, by proper legal methods, the regularity and validity of the action of the commissioners in so opening the street. *99
It appears in S. v. Davis,
Error. Venire de novo.