Opinion
(September Term, 1894.)
Eminent Domain — Condemnation of Lands for Streets — Laying Out Streets — Necessity for — Power of Town — Authority Conferred by Legislature.
1. Where an act of the General Assembly expressly authorizes the laying out a certain street across certain lands, the owner of the land cannot be heard to complain that the street is not necessary for public purposes.
2. Whether a particular use for land is public or not, within the meaning of the Constitution, is a question for the judiciary; and whether a public highway, which is for public use, is a necessity or not, is a question for the legislative department to determine.
3. An act authorizing the laying out of a certain street is not affected by a prior judgment of the Superior Court that such street is not a public necessity.
4. By section 2, ch. 306, Private Laws 1893, the General Assembly provided that a certain street directed by section 1 of said act to be laid out in the town of Wilkesboro should be located under the law providing for the location of streets and rights-of-way as provided in the charter of said town: Held, that this was not intended to restrict the town to the powers existing under its charter, but to regulate the procedure in ascertaining the most practical way of laying out the street.
ACTION, commenced on 8 April, 1893, heard upon a temporary restraining order issued by Boykin, J., at chambers at Mocksville, N.C.
(342) The restraining order was dismissed, and plaintiff appealed.
W. W. Barber for plaintiff.
Watson Buxton for defendant.
On 6 March, 1893, the General Assembly passed chapter 306, Private Laws 1893, as follows:
"Section 1. That the board of town commissioners of the town of Wilkesboro are hereby authorized to lay off, locate and establish a public street in the town of Wilkesboro, not less than sixteen feet wide, commencing at the southeast approach of the iron bridge across the Yadkin River, between Wilkesboro and North Wilkesboro, thence down the bank of said river, the most practical way, to Garrett Vine's saw and lumber mills.
"Sec. 2. That said street shall be located under the law providing for the location of streets and rights-of-way, as provided in the charter of said town.
"Sec. 3. All laws and clauses of laws in conflict with this act are hereby repealed.
"Sec. 4. This act shall be in force from and after its ratification."
The first section of the above act expressly authorizes the laying off the street which is the subject of this controversy, and it is not open to the plaintiff to say that the said street is not necessary (343) for public purposes. The Constitution provides that private property shall not be taken except for public use, and it is well settled "that whether a particular use is public or not, within the meaning of the Constitution, is a question for the judiciary." Lewis on Em. Domain, 185; Mills Em. Domain, 10, 11. It cannot be doubted that a public highway like the one under consideration is a public use; and, this being determined, the question as to its necessity or expediency is a matter which rests entirely with the legislative department. Lewis, supra, 238; Mills, supra, 10, 11.
According to these principles, the plaintiff is, as we have said, precluded from denying the necessity for the street, and the fact that previous to the passage of the act of Assembly the Superior Court had adjudged that no such necessity existed, cannot defeat the express grant of authority by the Legislature. The act (sec. 1) in its terms substantially locates the street, and there is nothing in the plaintiff's contention that section 2 has the effect of so qualifying the provisions of section 1 as to restrict the town authorities to the same powers only that existed under the charter of 1889. The act explicitly grants the authority to lay off the street, and section 2 was intended simply to regulate the procedure, as to ascertain "the most practical way," and other incidents attending the exercise of the right of the power of eminent domain. The judgment of the court below is
Affirmed.
Cited: Stratford v. Greensboro, 124 N.C. 133; Cozard v. Hardwood Co., 139 N.C. 296; Jeffress v. Greenville, 154 N.C. 498.
(344)