Cannon v. City of Wilmington

89 S.E.2d 595 (1955)

242 N.C. 711

W. A. CANNON v. CITY OF WILMINGTON, North Carolina, and North Carolina State Highway and Public Works Commission.

No. 171.

Supreme Court of North Carolina.

October 12, 1955.

*596 W. P. Burkhimer, Wilmington, for plaintiff, appellant.

Wm. B. Campbell and Louis J. Poisson, Jr., Wilmington, for defendant City of Wilmington, appellee.

R. Brookes Peters, General Counsel, Raleigh, and Louis J. Poisson, Jr., Associate Counsel, Wilmington, for defendant North Carolina State Highway and Public Works Commission, appellee.

BOBBITT, Justice.

The State Highway and Public Works Commission is an unincorporated governmental agency of the State and not subject to suit except in the manner expressly authorized by statute. Moore v. Clark, 235 N.C. 364, 70 S.E.2d 182, and cases cited. Hence, the demurrer of the defendant Commission, grounded on the court's lack of jurisdiction to entertain this action against it, was properly sustained.

True, when private property is taken under circumstances such that no procedure provided by statute affords an applicable or adequate remedy, the owner, in the exercise of his constitutional rights, may maintain an action to obtain just compensation therefor. Sale v. State Highway and Public Works Comm., N.C., 89 S.E.2d 290; Eller v. Board of Education, N.C., 89 S.E.2d 144. But this exception to the general rule has no application here.

Here plaintiff alleges expressly, as set out above, that defendant Commission has *597 no valid claim of right of way over plaintiff's land. Rather, plaintiff seeks to remove as a cloud on plaintiff's title defendant Commission's alleged invalid adverse claims.

If and when defendant Commission, in the exercise of the power of eminent domain conferred upon it by statute, G.S. § 136-19 and G.S. § 40-12 et seq., takes plaintiff's land or any interest therein for highway purposes, plaintiff's remedy is by special proceeding as provided in G.S. § 40-12.

Plaintiff declares that he is aggrieved because defendants have done nothing "to limit, bound, and describe with particularity the boundaries of their said claims." Certainly, if defendant Commission claims a right of way over plaintiff's land, plaintiff is entitled as a matter of right to require that defendant define with particularity the location and extent of its claim; and, if it refuses or fails to do so, plaintiff can invoke the remedy of mandamus. The statutory procedure described in G.S. § 40-12 for the award of just compensation to the owner of private property appropriated to public use presupposes that the owner shall know with certainty the exact limits of the appropriation made by defendant Commission.

Defendant City of Wilmington demurred for that it appears upon the face of the complaint "that this action has been instituted to determine the taking of and the location of the highway right of way by the defendants over a portion of the area referred to in the Complaint, and that the Court has no jurisdiction of the parties with respect to the alleged cause of action and no jurisdiction of the alleged civil action as set out in the Complaint; and for that it further appears upon the face of the Complaint that the alleged cause of action is based upon trespass by the defendants, who separately and jointly are by law vested with the power of eminent domain."

The contention of defendant City that the court lacks jurisdiction to entertain this action is without merit. The rule applicable to defendant Commission does not apply to a municipal corporation. A municipal corporation may "sue and be sued in its corporate name." G.S. § 160-2.

Here plaintiff alleges that defendant City claims, without legal right thereto, a right of way on and over his land, and that such claim is a cloud on his title. The demurrer admits the facts stated in these allegations. Hence, nothing else appearing, the complaint contains allegations of fact sufficient to state a cause of action within the purview of G.S. § 41-10, which provides for an action to remove a cloud from title.

Since the complaint states one cause of action against defendant City, this is sufficient ground for overruling its demurrer. Kindley v. Privette, 241 N.C. 140, 84 S.E.2d 660, and cases cited. Hence, we do not discuss whether plaintiff has alleged facts sufficient to constitute a cause of action for damages against defendant City.

The motion by defendant City to dismiss the appeal under Rule 21 is denied. The appeal itself is considered an exception to the judgment and any other matters appearing upon the face of the record. The pleadings are part of the record proper. Gibson v. Central Mfrs.' Mut. Ins. Co., 232 N.C. 712, 62 S.E.2d 320.

The conclusions reached are: the judgment sustaining the demurrer of the defendant Commission is affirmed; and the judgment sustaining the demurrer of the defendant City is reversed. The costs on appeal are to be paid, one-half by the plaintiff and one-half by the defendant City.

As to demurrer of defendant State Highway and Public Works Commission: Affirmed.

As to demurrer of defendant City of Wilmington: Reversed.

WINBORNE and HIGGINS, JJ., took no part in the consideration or decision of this case.