Efird v. City of Winston-Salem

ClaeKSON, J. “A demurrer goes to tbe heart of a pleading and challenges tbe right of tbe pleader to maintain bis position in any view of tbe matter, admitting for tbe purpose tbe truth of tbe allegations of fact contained therein.” Meyer v. Fenner, 196 N. C., at p. 477; Winston-Salem v. Ashby, 194 N. C., at p. 390. *36 The material question presented on this appeal is set forth in defendant’s assignment of error: “That the confirmation of the assessment roll by the board of aldermen of the city of 'Winston-Salem precludes and bars the present contentions of the plaintiff as set out in the complaint, and that the plaintiff should have objected to the confirmation of the assessment roll at the time and place provided therefor, and should have appealed from the confirmation of the assessment roll in accordance with chapter 56 of Consolidated Statutes of North Carolina.” We cannot so hold. It seems that defendant has no local statute on the subject and its right depends on the public statutes. From the allegations. set forth in the first cause of action, we think plaintiff’s complaint states a cause of action. It appears from the complaint that defendant entered and took possession of plaintiff’s land that it had no right of possession or title to, against his protest, paved the locus in quo and levied an assessment on his land. In the case of Greensboro v. Bishop, 197 N. C., 748, the condemnation and assessment were made in one action. See chapter 220, Public Laws of North Carolina, 1923, O. S., 2792 (Sup., 1924), a to p inclusive. In the present action, from the allegations of plaintiff’s complaint, the land taken by defendant and paved was his private property and not a public street. It is well settled that if plaintiff’s land was in the city of Winston-Salem and the locus in quo was a street or alley of the city, the position contended for by defendant would be applicable. The statutory remedy would have to be followed. The whole street improvement statutes are bottomed on street and alley improvement, which implies ownership in the city. C. S., 2703; Brown v. Hillsboro, 185 N. C., 368; Gunter v. Sanford, 186 N. C., 452; Leak v. Wadesboro, 186 N. C., 683; Vester v. Nashville, 190 N. C., 265; A. C. L. Ry. Co. v. Ahoskie, 192 N. C., 258; Mfg. Co. v. Pender, 196 N. C., 744; In re Sou. Ry. Co. Paving Assessment, 196 N. C., 756; Jones v. Durham, 197 N. C., 127; Noland v. Asheville, 197 N. C., 300. In R. R. v. Ahoskie, 192 N. C., at p. 260, the following is said: “Therefore, under our statute, one of the essential requisites of a valid assessment is the existence of a public street or alley. It is admitted that all of the requisites of a valid assessment appear except the one requiring the existence or establishment of a public street. The defendant contends that the property improved was a public street, and the plaintiff contends to the contrary. This was a fact to be established by evidence. An assessment, under the express language of our statute, implies the existence of a public street. If no public street existed, then no assessment can be legally laid upon abutting owners.” *37 In R. R. v. Ahoskie, supra, there was a dispute of fact as to whether the land was a public street or the property of the railroad. The railroad submitted itself to the assessment procedure, protested to the work being done as the property belonged to it and not to the town of Ahoskie, and appealed under C. S., 2714, from the confirmation. The Court said, at p. 262: “The conclusion of the whole matter, therefore, is whether or not this assessment was valid. If Eailroad Street is a public street of the town of Ahoskie, then the town had the right to make a valid assessment against abutting owners. If it is not a public street, then no assessment under our statute could he properly made. This is a question of fact to he determined and established by competent evidence, and, certainly, the validity of the assessment under our statutes can be challenged in the assessment proceedings.” In the present action the demurrer admits the ownership of the land in plaintiff and there is no present dispute on the record as to that fact. If the defendant had proceeded under chapter 220, Public Laws of N. C., 1923; C. S., 2792 (Sup., 1924), a to p inclusive, the condemnation and assessment could be made in one action. Greensboro v. Bishop, supra. The defendant demurred ore- tenus to the second cause of action. We think defendant’s contention untenable. From the present record, under the second cause of action, compensation will have to be paid plaintiff for the land taken by defendant. When defendant acquires title to the land, it can make an assessment on the land for street improvements. In Construction Co. v. Brockenbrough, 187 N. C., p. 77, we said: “As was said in Board of Commissioners, supra (183 N. C., p. 302) : ‘Subject to certain exceptions, the general rule is that the Legislature may validate retrospectively any proceeding it might have authorized in advance.’ The municipality can do the same.” Storm v. Wrightsville Beach, 189 N. C., at p. 683; Brown v. Hillsboro, 185 N. C., 377; Holton v. Mocksville, 189 N. C., 145. It would be inequitable for plaintiff to receive compensation for his land and obtain the street improvements also without paying a just assessment. The second cause of action of plaintiff’s complaint sets forth an action to recover damages for the land that plaintiff alleges that defendant has unlawfully and wrongfully taken and in the same action asks that the assessment lien he removed as a cloud on the title. Under the facts and circumstances of this cause, fair dealing would require that the defendant be awarded the right to levy a just assessment when defendant pays the damages for the land to plaintiff under the second cause of action. The judgment is Affirmed.