concurring: The defendants are indicted for a criminal trespass and questions which might be open for discussion and decision, if there had been a direct attack made upon the proceedings for a condemnation of the land, by appeal or otherwise, are not to be considered in this collateral proceeding. It may be regarded as settled law that the power to take private property for public uses belongs to every independent government exercising sovereign power, for it is a necessary incident to its sovereignty and requires therefore no constitutional recognition. U. S. v. Jones, 109 U. S., 513. No provision for condemnation has ever been inserted in our Constitution, but the right of eminent domain or the right to condemn private property for public uses has always been conceded as essential to the due exercise of the powers of government and to the promotion of the public welfare. Legislation in the exercise of this inherent power, though subject to judicial control, is said *622to be practically unlimited, if tbe purpose be a public one and sufficient provision is made for compensation to tbe owner of tbe property proposed to be taken. Railroad v Davis, 19 N. C., 451; Lecombe v. Railroad, 23 Wallace, 108. Tbe mode of exercising tbe power of eminent domain, unless otherwise provided in tbe organic law, rests in tbe sound discretion of tbe Legislature, subject, however, to tbe principle just stated, that there must be sure and adequate provision for compensating tbe owner. McIntyre v. Railroad, 67 N. C., 278; Lecombe v. Railroad, supra; Searl v. School Dist., 133 U. S., 553; Cherokee Nation v. Railroad, 135 U. S., 641. If tbe facts of this case are examined in tbe light of tbe foregoing principles, it cannot be doubted that tbe Legislature has assumed to exercise its unquestionable right 'to have land condemned in the town of Creedmoor for public streets. Tbe Legislature has conferred upon tbe town commissioners general authority to act in tbe premises where lands are required for tbe purpose of opening and laying out streets or for other public purposes and has also provided a perfectly fair and sufficient method for ascertaining and paying just compensation to the land owners, whose property may be taken for tbe purpose. Priv. Laws 1905, chap. -398. In this case tbe prosecutor did not see fit to avail himself of the privilege given him to appoint one of tbe appraisers, but wilfully and obstinately refused to do so. He thus set tbe law at defiance. Not only did be attempt to shorten and weaken, but actually to paralyze tbe arm of tbe law when stretched forth in an effort to promote tbe public welfare, and for no good reason whatever. There is and cannot be any suggestion in this case, that be was about to be wrongly or oppressively treated or that bis property was about to be taken without due process of law. When such has been tbe case, stout resistance to tbe last in protection of bis own property and in vindication of bis constitutional right, is justifiable. Such conduct is not stub*623bornness, bnt lawful resistance. Wilful and unreasonable obstruction to tbe due and orderly course of government and 'to tbe administration- of law as declared by tbe proper authority is not only unwarranted, but entitles tbe offender to little or no consideration at tbe hands of tbe court, where there has been no clear violation of bis rights. If be has lost any advantage secured to him'by tbe statute, through bis refusal to accept it, why should we bear him now complain of tbe alleged imperfect execution of tbe law growing out of bis own misconduct, unless we propose to reverse or abolish tbe salutary maxim, that no man shall be permitted to take any benefit of bis own wrong, by which principle, if it is to stand unimpaired, he should be judged. Tbe statute gave him a perfectly fair and adequate remedy for tbe full protection of bis property, and for tbe recovery of just compensation if tbe public good required that it should be taken. Will the courts allow him to thus triflb with tbe law, and to make bis trifling tbe foundation of bis complaint that it was not well executed ?
But apart from these considerations, be has not lost any right by tbe supposed irregularity in tbe proceedings. Tbe object in appointing tbe appraisers, is to ascertain tbe measure of compensation and nothing else. If be is dissatisfied with tbe decision of the appraisers, be is given tbe right of appeal and of this right be has availed himself. Tbe way is now open to him for tbe ascertainment of bis damages by a jury, the most impartial body known to tbe law, before whom bis rights can be determined both as to tbe facts and tbe law. That be cannot complain under such circumstances, has been definitely and conclusively settled by this court, if we are not to disregard, but to follow its solemn adjudications and one in particular, which seems to me to dispose of all tbe disputed questions in this case and, a decision too which received full consideration from a court'of exceptional learning and ability. In Johnston v. Rankin, 70 N. C., 550, *624it appears that the sheriff had not only notified the landowner of the day on which the appraisement of his land proposed to be condemned for a street would be made, but, worse than this, he notified him that the jury would appraise it on' one day, when in fact they appraised it on a different day, thus not only failing to give him notice, but misleading him. The court said he was not bound by the proceeding and “he might perhaps have regarded all after proceedings as trespasses, being under a warrant which was void as to him for want of notice,” or he might have had the proceeding quashed. “But,” says the court, “he appeals and thus vacates tire assessment during the pendency of the appeal. By voluntarily becoming a party, he waives the irregularity of want of notice, and gives the appellate court jurisdiction to hear the case on the merits.” He clearly waived, by appealing, any objection to the defect in the proceedings, which would otherwise have invalidated them, says the court in another part of its opinion. This case also definitely decides that the commissioners are the sole judges of the public use and of the necessity for taking the land and that the appeal involves nothing but the amount of compensation. “There is therefore nothing to forbid the defendants fyom proceeding with the improvement pending the appeal. The law of this State does not require compensation to be first made, as that of some States does.” I have examined the charter then under review and find that it nowhere expressly authorizes entry upon the land before compensation is made, but it provides that, on payment of the amount of the appraisement, the streets may be opened. In McIntyre v. Railroad, 67 N. C., 278, the court says: “If the owner of land overflowed by a mill dam could bring his action on the case for damages every day, no public mill could be established. In like manner if the owner of land taken by a railroad for its track, could bring his action of trespass every day, no railroad could be built * * * If the *625officers of the company cannot enter on lands and make surveys without a trespass, they could never locate the road. And if the road were located, and its construction delayed until the damages to all the land owners on'the route were ascertained under the act, the delay would be indefinite, and of no benefit to anyone. To hold, that during the pendency of a proceeding by the company to have the lands condemned, it could not prosecute its works without being exposed daily to an action of trespass, would effectually defeat the policy of the act.” To the same effect are Railroad v. McCaskill, 94 N. C., 746; Railroad v. Davis, 19 N. C., 451. In Phifer v. Railroad, 72 N. C., 433, it is held that the appeal carried the whole case into the Superior Court, “where the plaintiffs (the landowners) can have every right which they seek in the action adjudged and determined.” And in State v. McIver, 88 N. C., 686, it was said to be the rule in this State in reference to the taking of private property for public uses, that the compensation to the owner need not precede the act of appropriation, if adequate provision is made for an assessment of his damages. Numerous other cases of like import might be cited, but those already mentioned will suffice to show the result of actual decision by this court upon the subject, and they are conclusive against the contention of the prosecution.
The words of this act, that if an appeal is not taken within 10 days “the land so appraised shall stand condemned for the use of the town and the price fixed by the appraisers shall be paid from the funds of the town,” evidently mean that the appraisement shall stand as fixed by the appraisers and not that the town shall have no right to take the land until the time for appealing has expired, for condemnation always precedes appraisement. Much stronger language was used in the charter of Asheville, construed in Johnston v. Rankin, supra, and yet the court held in that case that the town could enter 'and proceed with the work of *626laying out the street. But giving to the words we have quoted their broadest meaning, that the title did not pass until the time for appealing had expired, the town was not thereby forbidden to go upon the land for the purpose of laying out and constructing the street. We ■ should always go to the farthest permissible length in protecting the rights and property of the citizen from unlawful interference, but some regard must also be had for the rights of the public, and we should be careful to see that the public welfare is not prejudiced by an undue consideration for private interests.