Jennings v. State Highway Commission , 183 N.C. 68 ( 1922 )

Hoke, J.

Plaintiff excepts to the judgment, contending, as we understand his position, that the right to take and use his property can only be acquired by action or special proceedings duly instituted, and in which the kind and quantity of material to be taken shall be designated and fully described, but in our opinion the exception cannot be sustained.

The General Assembly has conferred on the Highway Commission the power to enter on and appropriate land of private owners for the purpose of constructing highways as part of the State system, on giving due notice to the owner. C. S., 3667 et seq. And in chapter 2, section 22, they have also given defendant board the right to acquire material, gravel beds, sand bars, rocks, or other soil, mineral deposits, etc., necessary and suitable for the construction and maintenance of such roads, where such beds, quarries, etc., are not presently open and operated liona fide by private enterprise, conferring upon defendant for the purpose indicated the powers of eminent domain, contained in C. S., 1715 et seq., and with the additional provision in enlargement and extent of such powers as follows: “In case condemnation proceedings shall become necessary, the State Highway Commission is authorized to enter the lands and take possession of same, and also take possession of such materials and timber as is required by it prior to bringing the proceedings for condemnation, and prior to the payment of the money for said property.” And further : “In the event that the owner or owners shall appeal from the report of the commissioner (of assessment, etc.), it shall not be necessary for the State Highway Commission to deposit the money assessed with the clerk, but it may proceed and use the property to be condemned until the final determination of the action.”

It is universally conceded that a government has, under the power and principles of eminent domain, the right to appropriate private property for a public use, on making due compensation therefor; that where the use is for a public purpose .the necessity for the exercise of the power in a given case and the extent of it, under all ordinary circumstances is for the Legislature, either directly or through subordinate agencies designated for the purpose. And the well considered cases on the stib-ject hold that when the Legislature has not defined the extent or limit of tbe appropriation, tbe authorities charged with tbe duty are restricted to such property in kind and quantity as may be reasonably suitable and necessary to tbe purpose designated. Dickson v. Perkins, 172 N. C., 359; Jeffress v. Greenville, 154 N. C., 490 ; S. v. Jones, 139 N. C., 613; Lynch v. Forbes, 161 Mass., 302; 1st Elliott on Roads and Streets (3 ed.), secs. 250-256; 15 Cyc., 632.

In tbe citation to Elliott, see. 256, tbe author says: “As we shall show in tbe following sections, tbe general rule, where tbe statute does not definitely determine tbe question, is that so much, and so much only, as is reasonably necessary may be taken, but where a municipality acts in good faith and does not exceed the amount of a reasonable discretion, with which it is invested, tbe courts will seldom if ever interfere.”

And these and other authorities are to the effect further that unless .the statute appertaining to the subject otherwise provides, it is not necessary to notify the owner that his property is to be appropriated, provided he is notified and given opportunity to appear and be heard on the question of the compensation that may be due him. S. v. Jones, supra; Kinston v. Loftin, 149 N. C., 255; 15 Cyc., 632.

In the case before us it appears from a perusal of the record that the Legislature has expressly conferred the power on defendant board to enter on plaintiff’s property and appropriate the material in question. On satisfactory proof the Court finds that such material is suitable and reasonably required for the public purposes designated, and under the provisions of the statute are a proper application of the principles referred to, we must approve the rulings of the court and affirm the judgment dissolving the injunction.

Affirmed.