Redevelopment Com'n of Greensboro v. Hagins

128 S.E.2d 391 (1962)

258 N.C. 220

REDEVELOPMENT COMMISSION OF GREENSBORO, Petitioner, v. Bernice T. HAGINS, (Hagan) and husband J. G. Hagins, Respondents (two cases). REDEVELOPMENT COMMISSION OF GREENSBORO, Petitioner, v. Bernice T. HAGINS (Hagan) and husband, J. G. Hagins, Respondents.

No. 600.

Supreme Court of North Carolina.

December 12, 1962.

*393 Cannon & Wolfe, by J. Archie Cannon, Jr., Greenboro, for petitioner, appellee.

Major S. High, Greensboro, C. O. Pearson, Durham, for respondents, appellants.

HIGGINS, Justice.

The power of eminent domain is one of the attributes of a sovereign state. The right to take private property for public use exists independently of constitutional provisions. In fact, such provisions are limitations on the state's power to exercise the right. 18 Am.Jur., p. 634; 29 C.J.S. Eminent Domain § 3, p. 781; DeBruhl v. State Highway & Public Works Comm., 247 N.C. 671, 102 S.E.2d 229; 14th Amendment to the Constitution of the United States; Article I, Section 17, Constitution of North Carolina.

When the State of North Carolina, or one of its subdivisions or agencies thereto lawfully authorized by proper legislation, undertakes to condemn private property, the court will determine as a matter of law whether the proposed use is for a public purpose. Charlotte v. Heath, 226 N.C. 750, 40 S.E.2d 600, 169 A.L.R. 569. This Court, in Redevelopment Commission of Greensboro v. Security National Bank, 252 N.C. 595, 114 S.E.2d 688, has determined that lands acquired for the purposes and in the manner set forth in Chapter 160, Article 37, General Statutes, meet the public purpose test. Justice Parker's well documented opinion in Redevelopment Commission of Greensboro v. Security National Bank, supra, permits no other conclusion. See especially, Berman v. Parker, 348 U.S. 26, 75 S. Ct. 98, 99 L. Ed. 27.

Having determined that slum clearance as contemplated by G.S. § 160, Article 37, qualifies as a public purpose, we hold the act fixes safeguards and standards sufficiently definite to enable the petitioner, the City of Greensboro and its agencies, to set up and establish a slum clearance project embracing blighted areas in the city. In order to *394 establish petitioner's right to take the respondents' property by condemnation, the petition must affirmatively show compliance with the statutory requirements. These requirements are set forth in the act. They are fully discussed in Redevelopment Commission of Greensboro v. Security National Bank, supra. Among the requisites are: a properly approved redevelopment plan showing the boundaries of the area, existing uses, proposed uses, population density, proposed changes in zoning ordinances, street layouts, a feasible plan for the relocation of displaced families, and "(7) A statement of the estimated cost and method of financing of acquisition of the redevelopment area, and of all other costs necessary to prepare the area for redevelopment." G.S. § 160-463, 1961 Cumulative Supplement.

Subsection (c) provides: "A commission shall not acquire real property for a development project unless the governing body of the community in which the redevelopment project area is located has approved the redevelopment plan, as hereinafter prescribed." The section then sets out what the plan must include.

The adoption of the plan is equivalent to a cease and desist order preventing any development, rental, or sale of the property within the area. In order that property owners may be protected against threatened taking which is never consummated, the act wisely requires a showing that the acquiring agency has a lawful plan by which, among other things, it may lawfully finance the whole area. Each landowner has the right to know that the taking agency has on hand the money to pay for his property or, in lieu thereof, has present authority to obtain it. Having held the acquisition is for a public purpose, we must not be understood as holding that the acquisition is for a necessary public purpose.

The petitions in these proceedings fall far short of the showing required. This Court considered a similar deficiency in the case of Durham & N. R. R. Co. v. Richmond & D. R. R. Co., 106 N.C. 16, 10 S.E. 1041: "The foregoing references are made for the purpose of showing the true spirit and purpose of these laws, and that the performance of the preliminaries required is indispensably necessary before proceedings to condemn can be instituted. It is said that, although the petition in this case fails to allege the performance of these conditions, the omission is not fatal, and that it is but a defective statement of a good cause of action. We do not concur in this view. The exercise of the power of eminent domain is in derogation of common right, and all laws conferring such power must be strictly construed. By the very terms of the law under consideration, these allegations must be made in the petition; and we think that they are as much jurisdictional in their character as is the fact that the land-owner and the railroad company have failed to agree. `If the petition does not state the facts required by the statute to be stated, an objection in that regard can be raised preliminarily * * * by way of demurrer, * * *.'"

Each of the two small parcels of land here involved is the subject of a separate condemnation proceeding. The two proceedings appear to have been joined because the respondents owned both lots. We may seriously question whether the Legislature contemplated a separate judicial proceeding for each lot or parcel of land any more than it contemplated a separate plan for each parcel. It seems obvious the plan embraces the whole area as a unit. Certain it is that ability to finance the acquisition of one or two tracts is not a showing of a proper plan for financing the development, including the arrangements for relocating displaced families.

Reason does not appear why the condemnation proceedings covering the whole planned area may not be instituted and all interested parties served with process and all defenses heard, leaving only the question of just compensation due each respondent to be determined in a separate inquiry. *395 Condemnation under the power of eminent domain is a proceeding in rem against the property. 18 Am.Jur., § 112, p. 738. Each owner is entitled to defend upon the ground his property does not qualify for the purpose intended, or that its selection was the result of arbitrary or capricious conduct on the part of the taking agency. The case of North Carolina ex rel. Myers et al., Transportation Advisory Commission v. Wilmington-Wrightsville Beach Causeway Company, Tidewater Power Company, Shore Acres Company, Pennsylvania Company et al., 199 N.C. 169, 154 S.E. 74, is authority for a single condemnation proceeding against property belonging to different individuals.

"Where it is sought to condemn several tracts of land belonging to different owners, all the owners may be joined in one proceeding, in the absence of any statutory provision to the contrary. Such a course is convenient, and can injure no one if damages are separately assessed to each owner." 29 C.J.S. Eminent Domain § 236, p. 1204.

"In Virginia, there being no statute requiring a separate proceeding as to each landowner, several owners of land sought to be condemned may be convened in one proceeding." City of Richmond v. Dervishian, 190 Va. 398, 57 S.E.2d 120. See also, Dexter & N. R. Co. v. Foster, 203 N.Y. 637, 97 N.E. 1103; City of Houston v. Culmore, 154 Tex. 376, 278 S.W.2d 825.

In Rudacille v. State Commission, 155 Va. 808, 156 S.E. 829, the Supreme Court of Appeals sustained a single condemnation proceeding involving the property of many owners within the Shenandoah National Park area: "It is next said that the landholders affected should not be convened in one proceeding. It appears that there are something like two thousand of them living within the proposed park area. Individual petitions would be needlessly expensive, and would serve no good purpose. All that can be asked is that there be in each case a separate assessment of damages."

If, however, the petitioner elects to institute a separate and distinct proceeding for each parcel of land taken, it must, in each instance, allege all the facts necessary to justify the taking.

The petitions in these proceedings were fatally defective. The respondents were permitted to file demurrers ore tenus challenging the sufficiency of the petitions. Even without the demurrers, it would be our duty ex mero motu to take notice of the defects which appear upon the face of the records. Skinner v. Empresa Transformadora De Productos Agropecuarios, S.A., 252 N.C. 320, 113 S.E.2d 717; Woody v. Pickelsimer, 248 N.C. 599, 104 S.E.2d 273; Fuquay Springs v. Rowland, 239 N.C. 299, 79 S.E.2d 774.

The judgment of the superior court is

Reversed.