Lowman v. . Comrs

*150 Clarkson, J. Tbe learned counsel for plaintiff, no doubt advertent to tbe decisions of tbis Court, drew bis complaint to> be sure of one cause of action — trespass in taking “topsoil” off tbe land of plaintiff and putting it on tbe improved road. Tbe road board of Lovelady Township, under Public-Local Laws 1915, cb. 426, part sec. 4, bad tbe power “that tbe board shall in all cases, where they deem it necessary to make changes or lay out new roads, have tbe power of eminent domain, to take such lands as they may deem necessary for such changes or new roads, and they shall not be enjoined or stopped in such work by any landowner, but such landowner may, if be thinks himself damaged, file a claim for such damages at any time within six months from tbe completion of such change or new road, but not later,” etc. Tbe act further provides bow claim for damages shall be paid — assessment by arbitration with right of appeal. There is nothing in the act giving the road board of Lovelady Township the power of authority to go on plaintiff’s land and take “topsoil,” to put on the changed or new road. The remedy that the defendants say is sole and exclusive, given by the statute, can have no application when the statute does not authorize the taking of “topsoil.” There is a provision under “Eminent Domain,” C. S., 1712, as follows: “For the purpose of constructing and operating its work and necessary appurtenances thereof, or of repairing them after they shall have been made, or of enlarging or otherwise altering them, the corporation entitled to exercise the powers of eminent domain may, at any time, enter on any adjacent lands, cut, dig, and take therefrom any wood, stone, gravel, water or earth, which may be deemed necessary: Provided, that they shall not, without the consent of the owner, destroy or injure any ornamental or fruit trees.” Under Public Laws 1921, chapter 2, sec. 22, large' powers are given the State Highway Commission: “The State Highway Commission is vested with the power to acquire such rights of way and title to such land, gravel, gravel beds, or bars, sand, sandbeds or bars, rock, stone boulders, quarries, or quarry beds, lime,- or other earth or mineral deposits or formations, and such standing timber as it may deem necessary and suitable road construction, maintenance and repair, and the necessary approaches and way through, and a sufficient amount of land surrounding and adjacent thereto, as it may determine to enable it to properly prosecute the work, either by purchase, donation or condemnation, in the manner hereinafter set out,” etc. Wade v. Highway Com., 188 N. C., 210. There are no such broad and explicit powers in the road act for Lovelady Township. We do not think the courts should go beyond the language of the statute. *151 In Clifton v. Highway Com., 183 N. C., 211, it was said: “It will be observed that tbis act contains no such limitations as is provided in the statutes hereinbefore referred to with respect to dwellings, trees or yards. In the absence of constitutional or statutory restriction, the power of the State to appropriate private property to public use extends to every species of property within the territorial jurisdiction.” This decision was rendered on the facts that there was a building in the highway as laid out and it could be removed to build the road. This right is restricted in some statutes and if so the statute must be followed. The plaintiff, as we construe the complaint, presents definitely a cause of action in taking the “topsoil.” In the complaint he speaks “of the wrong hereinafter alleged” and definitely sets out the wrong, taking the “topsoil,” and asks for fixed damages of $300. In the prayer he asks for $1,000 damages. Our practice is liberal, but we cannot put in the complaint language that the pleader has not. We can only hold on the complaint that the action is for trespass in taking the “topsoil” and that is the only action definitely alleged. Under Eoads and Highways, chapter 70, article 4, O. S., 3668, (see, also, sections 3817, 3818), right is given to township road board to take “topsoil,” but the remedy is different from the Lovelady Township road law. C. S., 3668, supra, is as follows: “The county road commission created by this article, or any other road commission or board, or the board of county commissioners, having charge of the road work in any county, township, or road district, or the State Highway Commission, is hereby authorized through its agents to enter upon any land in said county, to cut and carry away any timber except trees or groves on improved land planted or left for shade or ornament, dig or cause to be dug and carry away any gravel, sand, clay, dirt, or stone which may be necessary for the proper repair and construction of roads in said county, and make or cause to be made such drains or ditches upon any land adjoining or lying near any road in said county that the said commission or board may deem necessary for the better condition of the road; and the drains and ditches so made shall not be obstructed by the occupants of such land or any other person; and any person obstructing such drains and ditches shall be guilty of a misdemeanor. Before entering upon land as authorized by this section, it shall be the duty of the said commission or hoard, through its representatives, to serve notice upon the owner or owners of said land, notifying them that certain material authorized to be taken by this section is required for the road work.” *152 Yolume III, 0. S., 3748a, applies to “road commission or other road authorities in any county,” not to Lovelady Township. See 0. S., chap. 70, Art. 7, and Public Laws, Ex. Session, 1920, chap. 60. The defendant road hoard gave no notice under 3668, sufra, before taking the “topsoil.” C. S., 3670, says the owner “may present to the authorities” the claim. We think, taking into consideration all the statutes on the subject, the action is properly brought for “topsoil” in the Superior Court. Under the allegations in the complaint and the facts and circumstances of this case, we cannot hold the township road board individually liable. Templeton v. Beard, 159 N. C., 63; Hipp v. Farrell, 169 N. C., 551; S. c., 173 N. C., 167; Carpenter v. R. R., 184 N. C., 400; Jenkins v. Griffith, 189 N. C., 633; Noland Co. v. Trustees, 190 N. C., 250; Hyder v. Henderson Co., 190 N. C., 663. We think the judgment of the court below should be modified, and we hold, under the law as we construe it: (1) That the complaint states a cause of action in trespass for the recovery of damages for “topsoil” and the Superior Court has jurisdiction. (2) There is no sufficient allegation in the complaint to hold the road board individually liable. For the reasons given, the judgment of the court below is Affirmed as to board. Reversed as to individuals.