State Ex Rel. Myers v. Wilmington - Wrightsville Beach Causeway Co. , 199 N.C. 169 ( 1930 )

CoNNOR, J.

There was no error in the refusal of the trial judge to dismiss this action, in accordance with the motion of defendants, which was in effect a demurrer ore terms to the complaint. The facts alleged in the complaint are sufficient to constitute a cause of action on which plaintiff is entitled to the relief prayed for, (1) either that upon these facts it be adjudged that the plaintiff, the State of North Carolina, is the owner of the land described in the complaint, having such- title thereto as is paramount to any title which may have vested in the defendants or in either of them, and is therefore entitled to enter into-possession of said land and to use the same for the purpose desired,, without compensation to the defendants or to any of them, notwithstand ing any title which the said defendants may have to said land; or (2) if it shall be adjudged in this action that defendants or any one of them is entitled to compensation for the taking of said land by the State of North Carolina, by reason of its ownership of the same, that said land be condemned, and that the sum of money which said defendant is entitled as just and adequate compensation for the taking of said land by the State of North Carolina be ascertained as provided by law, to the end that the State of North Carolina may pay such sum of money, and thus acquire such title to said land as plaintiff is required to have in order that said land may be used for the purpose desired. The contention of the plaintiff that neither of the defendants is the owner of the land described in the complaint or of any part thereof, as against the State of North Carolina, is bona fide. Whether this contention is well founded or not, depends upon the facts as they may be established at the trial of the action. If the contention is not sustained, then it is admitted by the defendants that the' State of North Carolina, under the power of eminent domain inherent in said State by reason of its sovereignty, has the right to take said land for the purpose desired, upon the payment of full and adequate compensation to such of the defendants as may be adjudged the owners of the land. Thus it is contended by the plaintiff that the State of North Carolina has the right to take possession of the land and to use it for the purpose desired, either without compensation to defendants, if it shall be finally adjudged in this action that the title of the State is paramount to any title which the defendants or any of them have to the land, or with compensation if it shall be finally adjudged in this action that defendants or any of them are entitled to compensation, as owner or owners of the land. We know of no principle of law which requires that plaintiff shall abandon either of these bona fide contentions in order that it may recover the relief, if any, to which it is entitled. If it shall be found that the State has the right to take and hold possession of the land, only by the exercise of its power of eminent domain, then the action may be transferred to the clerk of the Superior Court of New Hanover County, in order that the sum to which defendants who are owners of the land are entitled as just and adequate compensation may be ascertained in accordance with the provisions of chapter 33 of the Consolidated Statutes insofar as said provisions are applicable. S. v. Lumber Co., post, 199. Every right which the defendants or any of them have in or to the land described in the complaint can be and will be fully protected in this action. It is expressly provided by the statute under which the relator is prosecuting this action (section 2, chapter 44, Public Laws of North Carolina 1927), that “all sums which may be assessed in favor of the owner of any property condemned hereunder, shall constitute and remain a fixed and valid claim against the State of North Carolina until paid and satisfied in full, but the judgment in any condemnation proceeding shall divest the owner of the land condemned of all right, title, interest and estate in and to such land and property when entered.” Thus the faith and credit of the State is pledged for the payment of any sum or sums which may be assessed in favor of the defendants as compensation for the land taken by virtue of this action, if it shall be adjudged that said defendants are entitled to compensation. We, therefore, hold that there was no error in the refusal of the court to dismiss this action.

The order from which defendants have appealed, as we construe its provisions, is only to the effect that the State of North Carolina has the right to the immediate possession of the land described in the complaint, for the purpose desired, and that it shall hold such possession under such title as the court may hereafter determine, in this action, the State of North Carolina has to said land when the issues of law and of fact arising on the pleadings have been tried and decided. The order does not undertake to decide these issues.

Many interesting and important questions are discussed in the briefs filed on this appeal. We are of the opinion that these questions are not now presented for discussion or for decision. We have, therefore, not discussed or decided them. As we find no error in the order entered in this action, it is

Affirmed.