The charter of the town of Selma, as amended by chapter 116, Private Laws of 1915, conferred upon the municipal government the right to condemn land for purposes of a cemetery, "in the same manner as lands are condemned by railroads and public utility companies, and with the same rights of appeal." Under C.S. ch. 33, these companies have the right to condemn lands desired for the construction of their roads, etc., by special proceedings as therein described, and section 1714 of the statute provides that such power shall not extend to the condemnation of a dwelling-house, yard, kitchen, garden, or burial ground without the consent of the owner, unless the same is expressly authorized by the charter or some provision of the Consolidated Statutes.
In construing this legislation, the Court has held that where the general power to condemn exists, the right of selection as to route, quantity, etc., is left largely to the discretion of the company or corporation, and does not become the subject of judicial inquiry except on allegations of fact tending to show bad faith on the part of the company or corporation or an oppressive and manifest abuse of the discretion conferred upon them by the law. Power Co. v. Wissler, 160 N.C. 269. As to the procedure in a case of this kind, our decisions are to the effect that notwithstanding the appearance of issuable matter in the pleadings, it is the duty of the clerk, in the first instance, to pass upon all disputed questions presented in the record, and go on to the assessment of the damages through commissioners duly appointed, and allowing the parties, by exceptions, to raise any questions of law or fact issuable or otherwise to be considered on appeal from him in his award of the damages as provided by law. R. R. v. Mfg. Co., 166 N.C. 168; Abernathy v. R. R., 150 N.C. 97; R.R. v. R. R., 148 N.C. 59.
In Abernathy's case, supra, the principle is stated as follows: "While in other special proceedings, when an issue of fact is raised upon the pleadings, it is transferred to the civil issue docket for trial, in (326) condemnation proceedings the questions of law or fact are passed upon by the clerk, to whose rulings exceptions are noted, and no appeal lies until the final report of the commissioners comes in, when, upon exceptions filed, the entire record is sent to the Superior Court, where all exceptions may be presented." The method of procedure indicated in these cases should hold, though there should be issues raised concerning an owner's dwelling-house and other, the cases excepted from the operation of the statute, and in such case, on proper showing, the rights of the parties may in the meantime be protected *Page 349 from interference by injunction issued by the judge, on application made in the cause. Retreat Asso. v. Development Co., ante, 43.
This being the law applicable, we see nothing in the pleadings, as presented before the clerk, that should prevent his proceeding to an award of damages, as the statute directs, the allegations being that the owner had laid off this property into streets and blocks, leaving this particular block as an open square, and that certain persons had bought property in reference to the plat made. This was throughout, as we understand the record, entirely a question of private ownership, the municipality never having accepted this as a dedication to the public, and though the claimants might very properly have been made parties, there is nothing to prevent or modify the power of condemnation given to the municipality by its charter.
Taking a different view of the matter, however, the clerk decided to transfer the cause for trial of the issues in the Superior Court, and refused to proceed further, whereupon plaintiff excepted and appealed.
The cause having then been brought before the Superior Court, under C.S. 637, the judge had "jurisdiction," and in the exercise of the powers so conferred, his Honor entered an order that the purchasers of portions of defendant's property abutting on the square should be and they were made parties defendant, and filed an answer alleging, among other things, that they had bought and built on the abutting property, and occupied same; that the town had not extended its water supply to that locality, but their water for drinking and other domestic purposes was obtained from wells on the premises; that the drainage was directly from the square in question on and through their premises, and an establishment of a cemetery on said block would create a nuisance, endangering the health of their families, etc.
It is held with us that the creation and maintenance of a nuisance which sensibly impairs the value of property is a taking within the principle of eminent domain, and condemnation proceedings thereunder.Hines v. Rocky Mount, 162 N.C. 409, and authorities cited. And if it should be established that the maintenance of a cemetery at the place contemplated creates such a nuisance, so affecting the homes of these defendants, this would bring the case within the exception (327) contained in section 1714, withdrawing dwellings from the effect of the statute, and the power to condemn would no longer exist. While no such issue was presented in the pleadings before the clerk, it is raised now by defendants, and being an issue in bar of plaintiff's right to proceed, and on the facts as presented, it was within the sound discretion of his Honor to have the same passed on by a jury before proceeding *Page 350 further, a course approved and substantially pursued in Clark v. Lawrence,59 N.C. 83.
Undoubtedly the Legislature could confer the power to condemn property for a public purpose, even to the extent of taking a man's home, for all private property is liable to be appropriated for the public use in the reasonable exercise of the police power. Thomas v. Sanderlin, 173 N.C. 329, citing 6 R.C.L. 193. And in no event should a public need of this kind be lightly stayed, but if it should be clearly established on an appropriate issue that the maintenance of a cemetery on the proposed site will create a nuisance, causing substantial damage to the homes of these defendants, then the plaintiff must fail in its petition, for in such case, as stated, the power to condemn the site has not been conferred.
His Honor, therefore, was well within his legal discretion in directing that this vital question should be predetermined by the jury.
Affirmed.
Cited: State v. Lumber Co., 199 N.C. 201; In re Estate of Styers,202 N.C. 718; Yadkin Co. v. High Point, 217 N.C. 466; Charlotte v. Heath,226 N.C. 754; Mount Olive v. Cowan, 235 N.C. 262; In re Housing Authority,235 N.C. 467; Raleigh v. Edwards, 235 N.C. 676; Bd. of Ed. v. Allen,243 N.C. 523.