McDowell v. City of Asheville , 112 N.C. 747 ( 1893 )

^* AVERY, J., did not sit on the hearing of this appeal. Under a provision of its amended charter (section 37, chapter 111, Pr. Laws 1883) the defendant, on 20 August, 1887, condemned certain land of the plaintiffs and entered thereon and constructed a street, which it has continuously used ever since. The charter does not give the plaintiffs the right to institute proceedings for the assessment of damages, but, in case of disagreement, it imposes upon the defendant the duty of causing its marshal to summon six freeholders who shall ascertain such damages as well as any special advantage which may result to the owners by reason of the contemplated improvements. The report of these freeholders, when confirmed by the aldermen, may be appealed from by the owners, and the appellate court shall have power to increase or diminish the amount of damages, etc., but shall "in no wise adjudicate the necessity of the improvement." It is further provided that no appeal shall hinder or delay the aldermen in making the proposed improvements, provided the amount of damages assessed by the freeholders be paid into the office of the clerk of the court. The freeholders in this case reported that no damage had been sustained by the plaintiffs, and an appeal was taken to the Superior Court. Upon the hearing of the appeal at December Term, 1889, the defendant insisted that all of the proceedings which it had instituted subsequent to the condemnation and taking of the land were void, assigning as one of its reasons that the said freeholders were not summoned for (749) the purpose of assessing damages and benefits, but simply to "view and lay off a street." The plaintiffs assented to the proposition that the proceedings were void and a judgment was entered declaring the same. The appeal was dismissed at the cost of the plaintiffs, and from this part only of the judgment they appealed to this Court. That appeal was abandoned.

Thus it appears by the defendant's own admission that it has entered upon and is in the use and occupation of the plaintiffs' property without having taken any valid legal proceedings to have the damages, etc., assessed, and, although the plaintiffs have demanded that the defendant proceed to have such assessment made, it has refused and still refuses to do so. The plaintiffs pray that a mandamus issue compelling the defendant to perform the duty so plainly imposed upon it by its charter, but this is resisted upon several grounds, which we will now proceed to examine.

It is urged that the plaintiffs are estopped upon the principle of resjudicata. We do not think that the principle applies to the peculiar circumstances attending this case. It was the duty of the defendant to have instituted proper proceedings. This it failed to do, and at its own instance a judgment was entered with the consent of the plaintiffs declaring that the proceedings appealed from were void. The substance of the judgment was that the defendant had made no legal attempt to perform its statutory duty, and its effect was to leave the parties exactly in the same position they occupied before the proceedings were instituted.

It is, therefore, the plain duty of the defendant to proceed according to the provisions of the charter to have the damages assessed. It is insisted, however, that mandamus is not the proper remedy, inasmuch as the plaintiffs may have adequate relief at common law. The principle asserted is well established, but it must be borne in mind that in its application "the existing legal remedy relied upon as a bar to interference by mandamus must not only be an adequate remedy (750) in the general sense of the term, but it must be specific and appropriate to the particular circumstances of the case; that is, it must be such a remedy as affords relief upon the very subject-matter of the controversy." High Extraordinary Remedies, 19.

Now it may be true as contended by counsel that the defendant alone having the power to initiate statutory proceedings, and having failed to do so, may be treated as a trespasser and sued in ejectment (Mills Eminent Domain, 89), but it is clear that such a remedy would not be appropriate to the peculiar circumstances of this case. The defendant is still occupying the land as a street, claiming it under the right of eminent domain conferred by its charter, and the plaintiffs evidently prefer that the street should remain, and therefore do not elect to treat the defendant as a trespasser. Such being the case, the appropriate remedy is to compel the defendant to assess the damages as provided by its charter. In accordance with this view it has often been held that mandamus is a proper remedy in cases of this character. High (supra, 318) says: "The writ has frequently been granted to protect the rights of landowners to compensation for their lands taken in the construction of works of public improvement. And where a railway or other corporation is vested with the right of eminent domain, it may be compelled by mandamus to take the necessary steps for summoning a jury to assess damages for the property taken or damaged." To the same effect are Lewis on Eminent Domain, 614; Heard's Short Ex. Rem., 333, and 14 A. E., 162, and the numerous cases cited in the notes. These authorities abundantly sustain the position that where the statute does not provide that the owner may institute proceedings, the (751) party condemning, on whom is imposed the duty, may be compelled to do so by mandamus.

Being clearly of this opinion, we have deemed it unnecessary to enter into an elaborate discussion of all the authorities presented by the intelligent counsel.

AFFIRMED.