{
  "id": 8554490,
  "name": "CITY OF CHARLOTTE, a Municipal Corporation Petitioner v. MARGARET C. McNEELY and Husband, SAM S. McNEELY, JR. Respondents",
  "name_abbreviation": "City of Charlotte v. McNeely",
  "decision_date": "1970-07-15",
  "docket_number": "No. 7026SC395",
  "first_page": "649",
  "last_page": "653",
  "citations": [
    {
      "type": "official",
      "cite": "8 N.C. App. 649"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "161 S.E. 2d 191",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "1 N.C. App. 270",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8552171
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/1/0270-01"
      ]
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  "analysis": {
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    "char_count": 10844,
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    "simhash": "1:91b6f70a3f24f1d8",
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  "last_updated": "2023-07-14T18:36:14.673474+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Mallabd, C.J., and HedeiCK, J., concur."
    ],
    "parties": [
      "CITY OF CHARLOTTE, a Municipal Corporation Petitioner v. MARGARET C. McNEELY and Husband, SAM S. McNEELY, JR. Respondents"
    ],
    "opinions": [
      {
        "text": "PARKER, J.\nThis proceeding was commenced prior to the effective date of Chapter 713 of the 1965 Session Laws, which was enacted 26 May 1965 and became effective 1 July 1965 and which revised the Charter of the City of Charlotte. Therefore, the provisions relating to the power of eminent domain as contained in the revised Charter are not here applicable, and for purposes of this case reference must be had to the prior City Charter provisions. These were contained in Chap. 366, Public-Local Laws of 1939, Section 51 of which was as follows:\n\u201cSec. 51. The City of Charlotte is hereby vested with all power and authority now or hereafter granted to municipalities under the Public Laws of North Carolina, with respect to condemnation of property, rights, privileges or easements for public use, and in the exercise thereof the said City of Charlotte shall follow exclusively the procedure outlined and provided by the Public Laws of North Carolina, as the same may now or hereafter be enacted; ...\u201d\nBy virtue of this section of its Charter, which was in effect at the time the present proceeding was commenced, the petitioner derived its powers with respect to condemnation from, and in the exercise of those powers was required to follow exclusively the procedure outlined and provided by, the Public Laws of North Carolina. For municipal corporations, these are contained in General Statutes, Chap. 160, Municipal Corporations. For purposes of the questions raised by this appeal, pertinent portions of that Chapter are as follows:\nG.S. 160-204. \u201cWhen in the opinion of the governing body of any city . . . having and exercising . . . the management and control of the streets, . . . any land, right of way, .. . . privilege, or easement . . . shall be necessary for the purpose of opening, . . . widening, ... or operating any \u25a0such streets, . . . such governing body ... of such city may purchase such land, right of way, . . . privilege, or easement from the owner or owners thereof and pay such compensation therefor as may be agreed upon.\u201d\nG.S. 160-205. \u201cIf such governing body ... of such city are unable to agree with the owners thereof for the purchase of such land, right of way, privilege, or easement, for the purposes mentioned in the preceding section, . . . condemnation of the \u25a0same for such public use may be made in the same manner and under the same procedure as is provided in chapter Eminent Domain, article 2; and the determination of the governing body, ... of such city of the land necessary for such purposes shall be conclusive.\u201d\nG.S. 160-207. \u201cWhen it is proposed by any municipal corporation to condemn any land, rights, privileges or easements for the purpose of opening, extending, widening, altering or improving any street ... an order or resolution of the governing body of the municipality at a regular or special meeting shall be made stating generally, or as nearly as may be, the nature of the proposed improvement for which the land is required. . . . The governing body shall appoint a time and place for its final determination thereof, and cause notice of such time and a brief description of such proposed improvement to be published in some neiospaper published in said municipality for not less than ten days prior to said meeting. At said time and place said governing body shall hear such reasons as shall be given for or against the making of such proposed improvement, and it may adjourn such heating to a subsequent time. . . .\u201d (Emphasis added.)\nThe record before us in the present case does not reveal that there has been compliance with these statutory requirements. Appellants contend compliance may be found in the minutes of meetings of the Charlotte City Councel held 10 September 1962 and 15 February 1965. The first of these shows adoption of a motion authorizing expenditure of funds for surfacing Alleghany Street at locations other than involved in the present condemnation proceeding,, which resolution included a statement that \u201cin the interim that we contact the property owners affected and get the street opened to-Wilkinson Boulevard in a joint effort.\u201d The second resolution,, adopted at the 15 February 1965 meeting, merely authorized condemnation \u201cof 8,142.10 sq. ft. of property on the east side of Alleghany Street, between Wilkinson Blvd., and Havelock Avenue, owned by Margaret C. McNeely and Sam S. McNeely, Jr.\u201d These resolutions, which are the only ones to which appellant has directed our attention and the only ones which, insofar as the record before us reveals, were ever adopted by the Charlotte City Council relating to the widening of Alleghany Street over the lands of respondents, fall short of meeting the statutory requirements. There is no indication that the Charlotte City Council ever adopted a resolution stating \u201cthe nature of the proposed improvement for which the land is required,\u201d or that it ever \u201cappointed a time and place for its final determination thereof,\u201d or that it caused \u201cnotice of such time and a brief description of such proposed improvement to be published in some newspaper published in said municipality for not less than ten days prior to said meeting,\u201d all as required by G.S. 160-207.\n\u201cThe exercise of the power of eminent domain is in derogation of common right, and all laws conferring such power must be strictly construed.\u201d Redevelopment Comm. v. Abeyounis, 1 N.C. App. 270, 161 S.E. 2d 191. In the present case, when the City undertook to exercise the power of eminent domain which had been granted to it by the Legislature, it was necessary thjat it both allege and prove compliance with statutory procedural requirements. It has failed to carry its burden of proof in this respect. The trial court\u2019s Finding of Fact No. 24 is supported by the record. That finding in turn supports the conclusion and judgment that the City is not entitled to condemn the lands of the respondents and that the present proceeding be dismissed.\nCertain other findings of fact made by the trial court are irrelevant, but do not vitiate the judgment of dismissal and may be treated as surplusage. Dismissal of the present proceeding in no way bars the City, it if is so advised, from widening Alleghany Street or any other street in the City as the City\u2019s governing body may decide, and for such purpose the City may institute new condemnation proceedings in compliance with currently applicable charter and statutory procedural requirements.\nThe judgment dismissing the present proceeding is\nAffirmed.\nMallabd, C.J., and HedeiCK, J., concur.",
        "type": "majority",
        "author": "PARKER, J."
      }
    ],
    "attorneys": [
      "W. A. Watts for petitioner appellant.",
      "Haynes & Baucom, by Lloyd F. Baucom and Elbert E. Foster for respondent appellees."
    ],
    "corrections": "",
    "head_matter": "CITY OF CHARLOTTE, a Municipal Corporation Petitioner v. MARGARET C. McNEELY and Husband, SAM S. McNEELY, JR. Respondents\nNo. 7026SC395\n(Filed 15 July 1970)\n1. Eminent Domain \u00a7 7 \u2014 \u25a0 condemnation by municipality \u2014 compliance with statutory procedures \u2014 dismissal\nA municipality was not entitled to condemn a right-of-way over a strip of respondent\u2019s land for purpose of widening a street, and consequently its condemnation proceeding was properly dismissed, where there was no indication that the municipality had ever adopted a resolution stating the nature of the proposed improvement for which the land is required, or that it had appointed a time and place for its final determination, or that it had caused notice of such time and a brief description of the improvement to be published in a local newspaper \u2014 all as required by G.S. 160-207.\n2. Eminent Domain \u00a7 1\u2014 nature of the power\nThe exercise of the power of eminent domain is in derogation of common right, and all laws conferring such power must be strictly construed.\n3. Eminent Domain \u00a7 4\u2014 delegation of power \u2014 allegation and proof of compliance with statute\nWhere a municipality undertook to exercise the power of eminent domain which had been granted to it by the Legislature, it was necessary that the municipality both allege and prove compliance with statutory procedural requirements.\nOn Certiorari to review a judgment of Bryson, J., 7 July 1969, Schedule \u201cA\u201d Civil Session of MecKlenburg Superior Court.\nThis is a condemnation proceeding instituted on 2 April 1965 in which petitioner, a municipal corporation, seeks to condemn a right-of-way over a strip of land 20 feet wide from the western portion of property belonging to the feme respondent for the purpose of widening Alleghany Street in the area between Wilkinson Boulevard and Denver Avenue in the City of Charlotte, N. C. The petitioner alleged prior good faith efforts to buy and that \u201cthe necessity of acquiring the right-of-way for public use for the aforesaid purposes has been duly determined by the City Council of the City of Charlotte.\u201d Respondents filed answer on 30 April 1965 in which they admitted prior efforts of the City to purchase, but denied they had received any notice of any proposal being sent to the City Council of the City of Charlotte to take and condemn any of their lands and alleged that if any such action was taken, it was arbitrary and constituted a taking of their property without due process of law. After hearings, the clerk of Superior Court filed judgment on 2 August 1966, making 30 findings of fact. Finding of Fact Number 24 was as follows:\n\u201c24. There is no evidence that the City Council has officially or specifically authorized the widening and paving of Alleghany Street between Wilkinson Boulevard and Denver Avenue, but did approve condemnation proceedings to take the Respondents\u2019 land for that purpose.\u201d\nUpon the findings of fact, the Clerk made the following conclusions of law:\n\u201c1. That there is no public convenience and necessity to support and substantiate condemning the lands of the Respondents.\n\u201c2. That Petitioner, through its City Council, acted arbitrarily, without adequate determining principle, and in abuse of its legal discretion in directing and ordering condemnation of Respondents\u2019 lands described in the Petition filed herein.\n\u201c3. That the City Council of the City of Charlotte is not entitled to condemn the lands of Respondents described in the Petition.\u201d\nUpon these findings and conclusions, the court ordered that the petition be dismissed. Upon appeal by the petitioner to the judge of Superior Court, the parties stipulated that the judge might hear the matter upon the transcript and exhibits which had been introduced before the clerk of Superior Court. After hearing, Judge Bry-son filed judgment on 11 August 1969 in which he adopted all findings of fact and conclusions of law made by the clerk of Superior Court and affirmed the order which had been entered by the clerk of Superior Court. Petitioner filed notice of appeal to the Court of Appeals. Subsequently the Court of Appeals granted petitioner\u2019s petition for writ of certiorari to perfect a late appeal.\nW. A. Watts for petitioner appellant.\nHaynes & Baucom, by Lloyd F. Baucom and Elbert E. Foster for respondent appellees."
  },
  "file_name": "0649-01",
  "first_page_order": 673,
  "last_page_order": 677
}