Johnston v. . Rankin

RodMAN, J. In this action, the plaintiff seeks to recover damages, for a trespass on his land by the defendant and his servants and agents, in extending over the land and through the plaintiff’s enclosure, a street of the town of Asheville. As auxiliary to such remedy, and to prevent irreparable damage, he asks for an injunction. The injunction was ordered, and at Transylvania Superior Court the defendants moved to vacate it, which the Judge refused to do, and from that refusal an appeal was taken. The defendants, in their answer, admit the alleged trespass, but justify by pleading that defendant Rankin was at the time *555 of the trespass, Mayor of the town of Asheville, and as sneh, by- virtue of an act of Assembly, ratified 11th February, 1863, (Private Acts of 1883, ch. 47,) had power to extend the streets of said town, as therein prescribed, and that he acted in conformity to said power, and in doing so, committed the trespass complained of. The plaintiff contends: 1. That the act of 1863 was unconstitutional, in that it authorized-the taking of private property, without providing any sufficient means for making compensation. 2. That the defendant did not proceed in accordance with that act, but irregularly, and so he became a trespasser. 3. That plaintiff having appealed from the verdict in the proceedings, had under that act, the defendant, in proceeding after such appeal, and during the pendency thereof, became a trespasser. If I have, in any wise mistaken the points taken by the counsel for the plaintiff, or stated them less clearly or forcibly than he would have done, it is his own fault, inasmuch as he has failed to state them succinctly himself, as it was his right and duty to do. 1. Notwithstanding there is no clause in the Constitution of North Carolina which expressly prohibits private property from being taken for public use without compensation ; and although the clause to that effect in the Constitution of the United States applies only to acts by the United States, and not to the government of the State, State v. Newsom, 5 Ired. 50, yet the principle is so grounded in natural equity, that it has never been denied to be a part of the law of North Carolina. Davis v. Raleigh & Gaston Railroad Co., 2 D. & B. 451; State v. Glenn, 7 Jones, 321; Cornelius v. Glenn, 7 Jones, 512. The act of 1863, does provide compensation for one whose property is taken or injured by extending the streets of Ashe-ville. The plaintiff contends, however, that the provision of the act, (sec. 12) that the damages shall be assessed by a jury composed of citizens of the town is unfair and partial, and so *556 does not secure adequate compensation. No man may be a judge or a juror in an action in which he is interesteij ; but that remote and indirect interest, which every person has in an action, by reason of his residence within a municipality, which is a party to, or interested in the action, has never been held to disqualify him as either. Otherwise a Justice of the Peace, or a Judge living in a town or county, could never hear an action to which the town or county was a party, an objection altogether novel. The plaintiff also contends, that inasmuch as the jury found no damages to him, they must have acted on the principle of setting off the benefits he would receive from the improvement, against the damages to him, which mode of assessment is erroneous. As the act prescribes no rule for assessing the damages, the fact that the jury assessed them upon a wrong •principle, cannot render the act unconstitutional. The plaintiff may have benefit of his proposition, if he is entitled to any, when the damages shall be assessed in the action in which he appealed, and which is still pending. It is unnecessary, therefore, to consider now, what is the rule in such cases. 2. The proceedings were irregular and void, because the sheriff did not proceed with the jury to view the lands and assess the damages on the day named in the notice to plaintiff, but on a subsequent day, of which the plaintiff had no notice. If this objection had not been waived by the plaintiff’s appeal from the assessment of damages, it would have been good. The sheriff had no jurisdiction to enter on the lands until the plaintiff was made a party to the proceedings by service of notice. The neglect to proceed on the day named, without notice of the postponement to the plaintiff, operated as a discontinuance as to him and put him out of Court. He might perhaps have regarded all after proceedings as trespasses, being under a warrant which was void as to him for want of notice, or he might have brought up the proceedings to the Superior Court by reeordari, and had them quashed, and then at least, have brought his action for the trespass. But he appeals, and *557 thus vacates the assessment during the pendency of the appeal. By voluntarily becoming a party, he waives the irregularity of want of notice, and gives the Appellate Court jurisdiction to bear the case on the merits. 3. Upon this question we were referred to no authority. If the mayor and commissioners were the sole judges of the public use, and of the necessity of the occasion, as according to the authorities, it seems that in general, and in absence of special circumstances, they are, Dillon Mun. Corp. see. 465, then the appeal took up nothing for review, but the amount of compensation. No want of Iona fides is suggested in the defendant, nor any special fact to take the case out of the general rule. We think, therefore, that the only ‘question carried up was the amount of compensation, and this being so, there is nothing to forbid the defendants from proceeding with the improvement pending the appeal. The law of this State does not require compensation to be first made, as that of some States does. See McIntyre v. Western N. C. R. R. Co., 67 N. C. 278. We think there was error in refusing to vacate the injunction. The judgment is therefore reversed and the injunction vacated. But as the ease is only in this Court upon the interlocutory \>rder, it must be remanded, in order that the Superior Court may proceed according to this opinion, which will be certified. The defendants will recover costs in this Court. Per Oubiam. Judgment reversed.