PENN et al.
v.
CAROLINA VIRGINIA COASTAL CORPORATION et al.
No. 23.
Supreme Court of North Carolina.
March 1, 1950.*819 Frank B. Aycock, Jr., Elizabeth City, Frank P. Hobgood, Reidsville, for petitioners-appellants.
Harry McMullan, Jr., Washington, for defendants-appellees.
WINBORNE, Justice.
Taking the facts alleged in the petition to be true, as is done in a civil action in this State, in considering the sufficiency of a pleading to withstand the challenge of demurrer, and applying applicable principles of law, the court properly held that the allegations of the petition are insufficient to state a cause of action.
The Act of the General Assembly of 1949, Chapter 1024 of 1949 Session Laws of North Carolina, authorizes the creation of, and prescribes the machinery by petition for creating a municipal corporation for the purpose of acquiring rights of way for and owning and operating a toll road or highway in this State in the public interest. The Act also provides in Section 6 that such municipal corporation, when so created and organized in the manner prescribed, is "authorized and empowered to lay out, open up, own and construct and operate a toll road over the route designated in the petition". And the Act further provides in Section 7 that: "In the event the said municipal corporation is unable to agree with the owner of the land across whose land a toll road or highway is to be constructed as to the acquisition of the right of way across such land for the use and operation of the said toll road, the said municipal corporation shall have the right to acquire such easement and right of way by eminent domain upon compliance with the provisions of the Public Works Eminent Domain Law, set forth in Article 3 of Chapter 40, of the General Statutes * * * or such right of way may be condemned in accordance with provisions of Article 2 of Chapter 40 of the General Statutes of North Carolina."
Thus it appears that the corporation is given the choice of remedies in the event it is unable to agree with the land owner.
And in the present action the petitioners, owners of the land, have undertaken to chart the course, on the theory that they, as owners of the land, may proceed under the provisions of Article 2 of Chapter 40 of the General Statutes of North Carolina. But it appears that petitioners have, in athletic parlance, "jumped the gun", that is, started this proceeding before their right to do so has accrued.
In this connection it is provided in Article 2 of Chapter 40 of the General Statutes, G.S. § 40-11, that "if any corporation, enumerated in G.S. § 40-2, possessing by law the right of eminent domain in this state, is unable to agree for the purchase of any real estate required for the purposes of its incorporation or for the purposes specified in this chapter, it shall have the right to acquire title to the same in the manner and by the special proceedings herein prescribed". In the next Section, G.S. § 40-12, it is declared that "for the purposes of acquiring such title the corporation, or the owner of the land sought to be condemned, may present a petition to the clerk of the superior court * * * in which the real estate described in the petition is situated, praying for the appointment of commissioners of appraisal". Thus it is clear that the corporation may proceed to put into execution the machinery for acquiring title to the land it seeks to condemn. But the statute does not state when "the owner of land sought to be condemned" may proceed to have the land appraised, etc. However, the right to have such appraisal must necessarily be predicated upon a taking of the property by the corporation possessing the right of eminent domain. And "taking" under the power of eminent domain may be defined as entering upon private property for more than a momentary period, and, under warrant or color of legal authority, devoting it to a public use, or otherwise informally appropriating or injuriously affecting it in such a way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof". 18 Am. Jur. 756, Eminent Domain Sec. 132.
Moreover, "what is a taking of property within the due process clause of the Federal and State constitutions", the *820 text writers say, "is not always clear, but so far as general rules are permissible of declaration on the subject, it may be said that there is a taking when the act involves an actual interference with, or disturbance of property rights, resulting in injuries which are not merely consequential or incidental". 18 Am.Jur. 757, Eminent Domain, Sec. 132.
Applying these principles to the allegations of the petition, challenged by demurrer, it is seen that petitioners do not allege a taking of their property by defendant Coastal Highway. The most that is alleged is that if the defendant Coastal Highway constructs a toll road or highway along the route for which it was created, the road will cross the land of petitioners, and that "defendants are threatening to take the said right of way". A threat to take, and preliminary surveys, G.S. § 40-3, are insufficient to constitute a taking on which a cause of action for a taking would arise in favor of the owner of the land.
Affirmed.