dissenting: I should be content to note my dissent from the conclusion reached in this case, but for the fact that I am deeply impressed with the conviction that the opinion, of course unconsciously, weakens the security of private property, and invites laxity, both of sentiment and conduct on the part of those to whom the' Legislature is constantly committing the exercise of the highest act of sovereignty. “Laws which authorize the taking of private property for public use should be strictly construed and closely scrutinized. Nothing justifies such an invasion of private right but an imperative public necessity, and the exercise of this right of Eminent Domain, under color of which so many iniquities have been committed, should bd held strictly within the bounds -provided by the Constitution and the laws.” Refining Co. v. Elevator Co., 82 Mo., 121. “The appropriation of private property under the right of Eminent Domain is an exercise of sovereign power, and when reliance is placed upon statutes conferring the right, those statutes being in derogation of common right must be strictly construed, and the right cannot' be exercised except in strict conformity to the power conferred.” Hurvey v. Railroad, 174, Ill., 295.
“The privilege sought to be obtained by the application is against common right and the law should be construed *627strictly against the privilege; and no question is better settled in this State than that where a special and limited jurisdiction is conferred by statute upon an individual or a court, the record must affirmatively show a compliance with all the requisitions of the statute.” Martin v. Rushton, 42 Ala., 289.
“The law is jealous of the right of property holders, and adopts these formalities of procedure for their protection * * * The right of Eminent Domain, that of taking the property of the private citizen without his consent and devoting it to the use of the general public, is an exercise of the highest act of sovereignty. It can only be called into existence by the authority of the Legislature and by the tribunal provided by law. This statute prescribes the mode and I have no doubt whatever that it is mandatory. The failure of the city council to comply with it is fatal.” City of Madison v. Daley, 58 Fed. Rep., 753.
“In cases like the present, it is always to be borne in mind that these acts of parliament are acts of sovereign and imperial power operating in the most harsh shape in which that power can be applied in civil matters. * * * Whoever considers the effect of this must see the consequences which frequently do happen to individuals. Property to which they have attached their whole fortunes and interests ¡may be taken from them by an absolute exercise of imperial power, and their whole circumstances and situation in life may be entirely altered for a sum of money to be fixed by somebody else * * * The hardships imposed on individuals, I think, and I am glad to think, has of late years been subject to a more anxious consideration than it used to be. Probably the frequency of applications for such acts of parliament and the vast expense of the works have occasioned that particular consideration * * * It would be a strong measure indeed to allow men’s property to be summarily taken from them, on the notion of the general benefit, *628when the parties taking it have not done those things which are incumbent on them to secure their capacity and ability to complete the whole undertaking.” Lord Langdale, M. R., in Gray v. Railway Co., 9 Beav., 391.
“So high a prerogative as that of divesting one’s estate against his will should only be exercised when the plain letter of the law permits it, and under a careful' observance of the fomalities prescribed for the owner’s protection.” Cooley Const. Lim., 763.
“All grants of power by the government are to be strictly construed, and this is especially true with respect to the power of Eminent Domain, which is more harsh and peremptory in its exercise and operation than any other, one judge saying, £An act of this sort deserves no favor; to construe it liberally would be sinning against the rights of property.’ ” Lewis Em. Dom., 254.
“In construing statutes which are claimed to exercise the right of Eminent Domain, a strict, rather than a liberal construction is the rule. Such statutes assume to call into active operation a power, which, however essential to the existence of government, is in derogation of the ordinary rights of private ownership and of the control which an owner usually has of his property.” Matter of Bridge Co., 108 N. Y., 483.
I have noted the expressions of these jurists and authors both in this country and in England (and hundreds more of like import can be found) to emphasize the fundamental rule of construction of statutes conferring upon corporations, either public or private, the power of eminent domain in respect to the matter of procedure. In the light of the decisions of this court, beginning with Railroad v. Davis, 19 N. C., 451, I concede that the Legislature may confer upon a corporation, having the right to condemn, the power to enter upon the land and subject it to the burden before compensation is made. In this opinion I do not care to controvert the proposition that power to enter may be conferred *629even before the assessment of damage is made. For the purpose of this discussion, I fully concede the right, in as full and complete measure, as it is asserted in the opinion of the court. My dissent is based upon the construction of the statute. While I do not concede the necessity of invoking the rule, I insist that, in the light of authority and upon sound reason, the statute must be construed strictly and all reasonable doubt resolved in favor of the owner.
It is said that the power to condemn is political and not judicial, and from this proposition, which is conceded, the conclusion is reached that immediately upon the exercise of the power, by a declaration of condemnation, ‘the right to enter upon and occupy the property is vested in the corporation without notice to the owner; that the institution of proceedings fixing the compensation and providing for the payment, is secondary both in point of time and importance. It seems to be conceded that the owner is entitled to some sort or kind of notice at this time. However this may be, the proposition, startling to the citizen who has been educated in the belief that he lives under a government of laws and not of men, has judicial warrant for its support. It would serve no good purpose to discuss the foundation of this power, which resides in all forms of government. In-view of the fact that the power is conferred upon all sorts and kinds of corporations at every session of the General Assembly, it would seem wise to require a substantial, if not a strict compliance with the requirement of the statutes in regard to procedure by which the State parts with and delegates to others the exercise of this sovereign power, so vitally concerning the rights of the citizen and the honor of the sovereign.
The real question in this case is whether the charter of the town of Oreedmoor confers upon the authorities the power to. enter upon the property of the citizen until it is condemned, and whether it is condemned until the assessment *630of damages is made by the persons and in the manner prescribed by the charter. Section 11, chapter 398, Private Taws 1905, being the charter of the town, provides that whenever it shall become necessary to condemn land for streets, the value of such land shall be assessed by “three freeholders of said town * * * one of said appraisers shall be appointed by the board of commissioners of said town, one by the landowner or his agent, and the third to be selected by the two so appointed.” It is provided that the appraisers shall be sworn and shall file their report with the mayor within one week after the appraisement, etc. “Said report shall be signed by not less than two of the appraisers, and shall lie in the mayor’s office for ten days and be subject to the inspection and examination of the landowner or his agent, and unless an appeal is taken, and such appeal shall lie to the Superior Court of Granville County in term time, during said period of ten days by the town or the landowner, the said land so appraised shall stand condemned for the use of the town, and the price fixed by the appraisers shall be fixed from the funds of the town.”
It will be observed that no power is expressly conferred upon the officers of the town to enter upon the land and open -a street. Of course such power is incident to condemnation and need not be expressly given.
I find in several charters granted to railroad companies in this State, the power to enter upon the land and construct the road before condemnation proceedings are instituted. Such power is given in the charter of the Raleigh & Gaston Railroad Company, which was before the court in Railroad v. Davis, supra. In the charter of the Wilmington & Raleigh, afterwards the Wilmington & Weldon Railroad Company, no such power is given; on the contrary, it is provided that if it be necessary to take land a petition shall be filed, etc.; after providing for the assessment of damages, etc., it is said that the corporation may “thereupon, and also if *631no damage is due, enter upon tbe land and construct, etc.” Power of entry to make surveys is given before condemnation. Section 49 of Tbe Code, providing for tbe organization of railroad companies and prescribing tbe manner in wbicb they shall proceed to condemn land, contains tbis language : “If tbe said company, at tbe time of tbe appraisal, shall pay into court the sum appraised by tbe commissioners, then and in that event tbe said company may enter, take possession of and bold said land, notwithstanding an appeal, etc. Section 1945. I note tbe provisions of these charters to show that when tbe Legislature intended to confer the right to enter before tbe assessment is made or the damage paid, it has so declared in express terms.
In tbis case, it is found by tbe special verdict that tbe commissioners met on May 16, 1905, and adopted a resolution declaring that it was necessary and convenient for tbe public that a street be opened through tbe land of Kogers, appointing an appraiser on tbe part of tbe town and directing that tbe owner be notified to appoint an appraiser, and fixing tbe time at wbicb they should meet and assess the damage. Tbe owner was notified by tbe mayor. He declined and refused to select an appraiser. Thereupon, on May 24, 1905, tbe board of commisisoners selected a second appraiser to act with tbe one formerly appointed. Tbe two selected a third appraiser, and tbe three persons thus selected went upon tbe premises and laid out tbe street, not in conformity to tbe resolution, and assessed tbe damages. They filed their report on May 25, 1905. At a meeting of .the board on May 27, the report was adopted, and on tbe 29th the prosecutor gave notice of an appeal. Tbe report stated that they bad taken 250 feet of laiid; whereas tbe true quantity included in tbe street was 800 feet. On tbe 29th of May tbe defendants entered upon the land in tbe manner set forth in tbe special verdict.
Tbe correctness of tbe judgment below depends upon tbe *632answer to the question, whether the land stood condemned on the 29th of May; and the answer to this is dependent upon the question, whether by the resolution of May 16, 1905, the land stood condemned. It cannot be successfully contended that any right of entry was given in the charter until condemnation was had. It would seem that the plain language of the statute would put an end to the controversy. When the appraisers have been appointed, have acted, and the report of their action has been in the mayor’s office ten days, eliminating the provision in regard to an appeal, “the said land so appraised shall stand condemned ” etc. The charter is the authority and the only authority by which the power is conferred, and by which its terms and extent are to be pleasured. How is it possible for the court to say that this language is of no effect. Was it not most natural for the prosecutor to put the only reasonable construction upon this plain language and to assert his ownership, until, by the law of the land, he has been divested of it? If the land stood condemned by the resolution, why should the Legislature have done a vain thing and declared that land already condemned should again “stand condemned?” If by the resolution of May 16, 1905, his land had been taken, it is immaterial for the purpose of this appeal to enquire whether the appointment by the board of two appraisers, when the statute empowered it to select only one, was authorized. If, on the contrary, the appointment and action of the appraisers are essential to the completion of the condemnation, it is important to enquire whether the refusal of the land owner to choose an appraiser, conferred the power on the board to do so. It is said that he was stubborn and by his stubbornness forfeited his right to have his property condemned according to the charter. The record does not disclose why the owner of the land refused to name an appraiser, nor is it of any moment in the decision of this case. It is sufficient to say, conceding that he was stubborn, this did not author*633ize the defendants to proceed otherwise than in accordance with the law, to take his property. Some of the most sacred rights of person and property have been preserved by men who were stubborn. Doubtless Hampden was so considered when he resisted the payment of ship money. We may not dismiss a man’s canse because in onr opinion he was stubborn. If those upon whom the Legislature has com ferred the' right to exercise .the highest acts of sovereignty, fail to proceed according to the charter, the citizen not only has a right, but it is his duty to be stubborn.
I do not question the motives of the defendants. I presume they were acting in good faith. But when we deal with the sacred rights of person and property, nothing short of full and complete authority will justify.
In other charters directing the appointment of appraisers, as this does, provision is made for the appointment by the sheriff or clerk, if the owner of the property refuses to name an appraiser. It is no answer to the objection that the law has not been complied with, to say that it is the fault of the property owner. The charter is the guide for the corporation. The Legislature has prescribed the terms upon which and the manner in which the corporation must accept the authority; the citizen is not consulted; he is told that the condemnation of his property is the exercise of sovereign power, and he is not entitled to be heard". Certainly, when he finds that in delegating that power to a corporation, the Legislature has fixed the tribunal, provided for its selection and prescribed the manner in which his property is to “stand condemned,” he may make this last stand for his rights, and should not be told that it is immaterial whether the corporation observes the provision of the charter. I respectfully, but firmly, insist that this is to dispense with fundamental principles founded upon the experience of the ages. I am at a loss to see what right the commissioners had to select two appraisers when the charter gave them power to select only *634one. That tbe manner of selecting the appraisers when prescribed by the charter is essential, and compliance therewith, a condition precedent to condemnation is abundantly sustained by the authorities. In Loucheim v. Hemsley, 59 N. J. L., 149, the statute directs that the appraisers be of different political parties. The court said: “Neither in the communication nor in the minutes is any reference made to the statutory qualifications of the commissioners. This omission is fatal. A special authority delegated by statute to particular persons to take away a man’s property and estate, against his will, must be strictly pursued, and must appear to have been so pursued on the face of the proceedings in which the authority is exercised.”
In Fore v. Hoke, 48 Mo. App., 254, the statute required the petition for condemnation and assessment to set forth that the parties could not agree. The petition failing to do so, the court said that the averment was jurisdictional. In Adams v Clarksburg, 23 W. Va., 203, Woods, J., says: “The taking of private property for public use, without the owner’s consent can only be justified for the uses in the modes upon the conditions and by the agencies prescribed by law for its appropriation. Whenever the private property of an individual is to be divested by proceedings against his will, a strict compliance must be 'had with all the provisions of law which are made for his protection and benefit, or the proceeding will be ineffectual. These conditions must be regarded as conditions precedent which are not only to be observed and complied with before the right of the property owner is disturbed, but the party claiming authority under the adverse proceeding must show affirmatively such compliance. All the authorities concur in holding, that as private property can be taken against the consent of -the owner, only in such cases, and by such proceedings as may be specially provided by law, and as these proceedings are contrary to the course of the common law, and are in derogation of common right, they are to be *635strictly construed and that the party who would avail himself of this extraordinary power, must comply fully with all the provisions of the law entitling him to exercise it.” In this case a provision required ten days’ notice to be served on the owners before the court could appoint the commissioners. The court held that a failure to give the notice rendered the proceeding void. This, because the statute required the notice. In Madden v. L. & N. R. R., 66 Miss., 258, the statute provided that the commissioners be “disinterested.” The court said: “This being the case, it is material to the validity of the appropriation that a strict compliance with the terms of the charter be apparent in the record. It nowhere appears, either in the appointment of the commissioners, in their return, or in any order entered therein that they were “disinterested.” And if they were not, there has not been any condemnation of the land. This case was upon a “suggestion of error,” re-argued, and the decision affirmed. In Mitchell v. R. R., 68 Ill., 286, it is said: “It is a-sound and inflexible rule of law, that when special proceedings are authorized by statute by which the estate of one person may be divested and transferred to another, every material provision of the statute must be complied with. The owner has the right to' insist upon a strict-performance of all the material requirements," and especially those designed for his security, and the non-observance of which may operate to his prejudice.” In Paret v. Boyonne, 139 N. J. L., 559, Depue, Jsays: “The officers of a corporation are agents, with only special powers such as are delegated to them by the act of incorporation, or such as are necessarily implied from the powers delegated. * * * In the performance of these functions they are required to conform strictly to the method of procedure prescribed.” In Stewart v. Wallis, 30 Barb., 344, it is said: “The form by which private property may be taken for public purposes, having been prescribed, it must be strictly pursued, or tire attempt will be ineffectual and the *636proceeding void, and all persons acting under tbe color of them will be trespassers.” We may apply the words of the court in Chi. & Alt. R. R. Co. v. Smith, 78 Ill., 96, to all works of public character. “Whilst all persons at that day were desirous to see railroads constructed, it was not intended that it should be done at the sacrifice of all private rights. Those acting for the company knew, or should have known, that, in acquiring their right of way they were pursuing an extraordinary and summary remedy and, in doing so, the law imperatively demanded that they should observe all of the requirements of the statute under which they were acting. And this is a requirement which lies at the foundation of our system of jurisprudence.” Railroad v. Railroad, 106 N. C., 16; 15 Cyc., p. 815. This is probably the first instance in which the property of the citizen has been taken against his consent, and its value fixed by appraisers, two of whom are selected by the party taking, they selecting the third. I submit that to sustain it is destructive of elementary principles of natural justice, and judicial procedure. It is no answer to say to the citizen deprived of his property at a valuation fixed by appraisers so appointed, that he may appeal. He is entitled in the first instance and at every step in the proceeding to demand a strict observance of the written law. The provisions in regard to the mode of procedure before the land shall “stand condemned,” are not empty forms; to so construe them puts the State in the attitude of keeping the promise to the ear, and breaking it to the sense. Let us suppose a similar provision in the charter of a railroad company or telegraph company, in regard to the appointment of appraisers, and there is no difference in principle, would it be contended that, if the owner, feeling that his rights were being unlawfully or unjustly invaded, refused to name an appraiser, that a superintendent, or other officer of the corporation could name two of the appraisers, and say to the owner if he was not satisfied, he could appeal. I do not so understand the *637guaranties wbicli the law throws around the citizen. The right to appeal is of value and not to be denied, but the right of the citizen to demand at all stages of the proceeding, due process of law, is not to be denied or abridged.
The appeal suspended further action by the board. It is usually provided that if the corporation deposit the amount of the award, an appeal shall not suspend the right of entry. I see no reasonable objection to such a provision. It is said, however, that the question is settled by this court in State v. Lyle, 100 N. C., 497. The extent to which a question becomes closed, and is crystallized into positive law by a single decision binding upon the same court, is often difficult to define. Without undertaking to do so, I think it permissible and safe to say that it should not extend beyond the clear and unmistakable language of the judge who writes the opinion. I should feel myself bound, both by reason of my respect for the opinion of the learned Chief Justice who wrote, and the Associate Justice who concurred in that opinion, as well as the learned judge who tried the case below, unless my convictions were so strong, that to adopt the conclusion did violence to my sense of duty as a judge. I do not think that I am placed in this embarrassing position in respect to that case.» Fully conceding that it is permissible to cite the case as in. some measure sustaining the conclusion reached by the court, I think that a careful examination of the opinion discloses that the question upon which this case turns, is not considered or decided. Smith:, C. J., says: “The controversy in the present case turns upon the construction of the charter, which has been recited in full, and whether, in providing the method for ascertaining the compensation to be paid the owner, and the means by which it is to be done, a prepayment is necessary before the property can be taken, and this following the condemnation in the mode pointed out in the enactment.” The discussion following this statement of the question in controversy, shows clearly that no other question was in the *638mind of the writer. This view is strengthened by the concluding portion of the opinion — citing Judge Cooley to sustain the proposition that the corporation may, if authorized, take “without first making payment(Italics in opinion). This is the only question discussed or decided, and, as said, it is not controverted.
In Freedle v. Railroad, 49 N. C., 89, and in McIntyre v. Railroad, 67 N. C., 278, the question presented here did not arise. In Johnston v. Rankin, 70 N. C., 550, the charter of Asheville is not set out. The only point decided in respect to the right to proceed with the work, is that the law did not require compensation paid before the taking. If, as contended, these cases hold that, without clearly expressed power in the charter, a board of town commissioners, or directors of a private corporation may, without notice to the owner, locate a street or road on his property, and immediately, withT out other notice to him than the appearance of a number of men on his premises, tear away his houses and fences, cut down his trees and take his property, then I most respectfully but earnestly dissent from them. To sustain tíre exercise of such arbitrary power, there should be unmistakable language used in the statute. How far the Legislature may permit it, is not, in my opinion, a closed question.
It may be said that it is of little importance to the owner, whose property is taken by an ex parte exercise of political sovereignty, either by a board of town commissioners or a board of non-resident directors of a corporation, to whom has been delegated this sovereign power, how, when or by whom the assessment is made; and it must be conceded that much judicial warrant is found to sustain the position. I cannot hope to change the current of judicial thought in this court, and it is doubtless a vain assumption on my part to question its correctness. I hope, however, that another department of .the government, to which it seems the citizen must look to safeguard his rights in this respect, will come to a state of *639mind which will enable us to say, in the language of the English Court of Chancery, “the hardship imposed on individuals, I think, and I am glad to think, has of late years been subject to a more anxious consideration than it used to be.” ,The material wealth and prosperity of the country should, and we hope will, continue to grow. The great principles by which the security of life, liberty and property has been preserved, the preservation of which is so essential, and has contributed so largely to the present happy condition in which we live, may not be either sacrificed or in the slightest degree weakened by the demands of corporations, either public or private, to trespass upon the land of the citizen, otherwise .than is permitted by the clearly expressed will of the lawmaking power. A man’s land should “stand condemned” when, and only when, every step, which the law prescribes to that end, has been taken. Every reasonable doubt should be yesolved in favor of the citizen. It is well known that charters are obtained by those most interested in securing the largest delegation of power possible. The owner, whose property is to be condemned, has no opportunity to be heard. The .constitutional provision requiring notice of the introduction .of private 'laws, has, by custom and construction, been practically abrogated.
Holding, therefore, that the assessment was of the essence of the condemnation proceeding, I am forced to the conclusion that the land did never “stand condemned” because there was never any lawfully constituted appraisers, and that the report should not under the terms of the charter be confirmed, until the expiration of ten days. It would seem also that power is ever aggressive and often indifferent to individual rights.
Eecognizing these truths taught by experience, the courts have wisely declared that all grants of power are to be construed strictly against the grant, and liberally in favor of the citizen.
*640In my opinion, under the clear terms of tbe charter, the land of the prosecutor did not “stand condemned” on May 29, 1905, and the entry thereon by the defendants was a trespass.
There are other phases of the case which I do not care to discuss. I do not dissent from what is said in regard to notice given.