{
  "id": 8650773,
  "name": "THE TOWN OF HENDERSON v. OWEN DAVIS et al.",
  "name_abbreviation": "Town of Henderson v. Davis",
  "decision_date": "1890-02",
  "docket_number": "",
  "first_page": "88",
  "last_page": "95",
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    {
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      "cite": "106 N.C. 88"
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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    {
      "cite": "100 N. C., 497",
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      "cite": "68 N. C., 297",
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      "reporter": "N.C.",
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  "last_updated": "2023-07-14T20:21:20.066111+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "THE TOWN OF HENDERSON v. OWEN DAVIS et al."
    ],
    "opinions": [
      {
        "text": "MeeeiMON, C. J.:\nThe objection that the Mayor\u2019s Court did not have jurisdiction of the action because \u201c the title to land was put in issue and involved,\u201d is without force. The title to real estate was not in controversy, in the sense of the Constitution (Art. IY, \u00a727), or of the statute (The Code, \u00a7\u00a7 834, 836, 837). The substance. of the controversy was, whether or not a public street of the plaintiff had been established, and whether or not the defendants had obstructed the same, in violation of the ordinance specified, and thus incurred the penalty sued for. If the street were established, it was not material to inquire who had title to the land subject to 'the right of the public. Then, obviously, the Mayor had jurisdiction of the action. (Private Acts 1868-69, ch. 79, \u00a7 15; The Code, \u00a73818).\nNor can the second exception be sustained. The minutes of the proceedings of the commissioners of the town of Henderson pertinent were put in evidence without objection. They show that an election was held \u201cin accordance with\u201d the section of the statute requiring it to be held, the number of votes cast \u201cfor the charter,\u201d and the number cast \u201cagainst the charter,\u201d and the majority in favor of accepting the same, and they recite, and the commissioners certifjq \u201c that the election was held, in all respects, in accordance with the provisions of said charter,\u201d &c. The minutes are such as the statute (Private Acts 1868-69, ch. 79, \u00a751) requires, and certainly imply sufficiently that the notice of election required was given. Besides, the minutes showing that an election was held as directed by the statute, the presumption is that notice was given as required. It does not appear that there was any irregularity as to the election referred to, but if there had been, the Legislature cured the same by recognizing and amending the charter of the plaintiff by the statute (Acts 1883, ch. 51). Besides the charter had prevailed and been observed for nearly twenty years. Moreover, the election could not be attacked in a collateral proceeding. If the defendant was not satisfied with the result of the election mentioned, he should have contested it by proper action brought for the purpose in apt time.\nThe record in this case is very informal and confused, and the statement of the case on appeal for this Court is imperfect, particularly in stating material evidence that it seems must have been produced on the trial. It does not appear, unless by very vague inference, that a street called \u201c Breckenridge street\u201d \u2014 that alleged to have been obstructed by the defendant \u2014 was ever located, laid out, established and used by the public at all in the plaintiff town. \u201c The condemnation proceedings as. recorded by\u201d the Board of Commissioners of the plaintiff put in evidence, show that on the 22d of June, 1870, an order was made by'such commissioners, not to lay out such street, but that three free-holders, named, \u201c Be requested to act as appraisers to assess the advantages and disadvantages in opening Breckenridge street from Chestnut street to William street\u201d ; that the free-holders so appointed made report, and that their report was adopted by the commissioners. It further appears that the freeholders so appointed returned their valuation and report in respect thereto to the Superior Court of the county of Gran-ville, as the statute required them to do. In that report they state that having been appointed assessors \u201cby the Commissioners of the town of Henderson, being duly sworn to view and assess the advantages and disadvantages to the owners of the land arising from the laying off and widening of certain streets in said town of Henderson, and they say that they have viewed the premises on Breckenridge street, from Garnett street to Chestnut, and find that no damage accrues to the owners of land on the right-hand side of Breckenridge street, going down from Garnett to Chestnut streets by reason of widening said streets as proposed. * * * Calvin Betts, who owns a lot in this Breckenridge street at its mouth on Garnett street, the majority of the assessors think is damaged $250, and we so award,\u201d &c.\nThe proceedings, the substance of which is thus stated, constitute all the evidence, so far as appears from the record, produced to show that \u201cBreckenridge street\u201d was indeed such. It does not appear that the free-holders, assessors, or any other authority whatever gave the land-owners, whose land and advantage and disadvantage' they assessed, any notice by personal service or otherwise, of their purpose to assess the same, or that they had made such assessment and made report thereof to the commissioners and to the Superior Court of Granville County. It does not appear that this street was opened for public use, or that it was used as a public street at any time. It does not sufficiently appear, as it should do, that the commissioners of the plaintiff exercised their jurisdiction and authority conferred by its charter (Private Acts 1868-69, ch. 79, \u00a742),to obtain required right-of-way, and open new streets, as to the alleged street in question. If it appeared that it had been laid out \u2014 opened\u2014 used by the public \u2014 that the town authorities had exercised control over it, then there might arise a strong presumption that it had been established by proper authority. In that case, all persons interested would have been put on notice, and they might have taken steps to question, by proper legal methods, the regularity and validity of the action of the commissioners in so opening the street.\nIt appears in State v. Davis, 68 N. C., 297, cited by the counsel of the plaintiff, that the road in question in that case \u201cwas definitely established as a public highway, and an overseer was appointed.\u201d And in State v. Lyle, 100 N. C., 497, a survey had been made under the direction of the town authorities and the owner of the lot affected had notice; the street commissioners had been directed, by order, to notify all persons as to encroachments on the streets, &c. In those and like cases it appeared that the proper authorities had exercised their authority, had laid out the road, and were proceeding to widen the street. It may be that the plaintiff\u2019s proper officers did so, but it should appear that they did. If it so appeared, possibly it might be inferred that the assessment in favor of Calvin B^tts had been paid, and all proper intendments and presumptions would prevail in favor of the regularity and validity of their action. We are constrained to hold that there -was not evidence to go to the jury to prove that there was a street of the plaintiff called \u201c Breckenridge street,\u201d and that the defendants had obstructed the same as alleged. Hence, there is error, and the defendants are entitled to a new trial, and we so adjudge.\nError. Venire de novo.",
        "type": "majority",
        "author": "MeeeiMON, C. J.:"
      }
    ],
    "attorneys": [
      "Messrs. A. W. Graham, R. W. Winston and A. G. ZolUcoffer, for plaintiff.",
      "Messrs. II. T. Watkins, E. G. Smith (by brief), G. II. Snow and T. C. Fuller, for defendants."
    ],
    "corrections": "",
    "head_matter": "THE TOWN OF HENDERSON v. OWEN DAVIS et al.\nJurisdiction \u2014 Title to Land \u2014 Action for Penalty for Obstructing Street \u2014 Election, validity of \u2014 Proceeding to Open Street \u2014 Notice to Land-owners \u2014 Insufficient Evidence.\n1. The title' to land is not in controversy in a proceeding to recover a penalty prescribed by a town charter for obstructing a street.\n3. The charter of a town provided that an election on the question of accepting the charter should be held after ten days\u2019 notice. The minutes of the Commissioners showed that an election was held in accordance with the provisions of the charter, the number of votes cast, and the affirmative majority: Held, th\u00e1t the required notice was sufficiently implied.\n3. The regularity and validity of an election cannot be collaterally attacked.\n4. Where, on the trial of an action to recover a penalty for obstructing a street, it did not appear that notice had been given to adjacent land-owner of the purpose of the assessors to assess the advantage and disadvantage, or that such assessment and report thereof had been made, or that the street was opened for public use, or that it was used as a public street at any time: Held, that there was not sufficient evidence to go to the jury to prove the existence of the street, or that the defendant had obstructed it.\nCivil action, originally begun before the Mayor of the town of Henderson, and tried before Armfield, J., at Spring Term, 1889, of the Superior Court of Vance County.\nThis action was begun to recover the penalty of ten dollars incurred by an alleged violation of an ordinance of the plaintiff, whereof the following is a copy:\n\u2022 \u201cArticle 3, \u00a71. Any person or persons allowing obstructions to remain or continue in any street, or streets, or alleys in the town of Henderson, after having been notified by the town constable, shall be fined ten dollars for each day said obstructions shall be allowed to remain.\u201d\nOn tlie trial before the Mayor, the defendant suggested \u201cthat the land in controversy is not a street, but the property of the defendant and others,\u201d and he insisted that, therefore, the Mayor had no jurisdiction. There was judgment for the plaintiff in the Mayor\u2019s Court, and the defendant appealed to the Superior Court. The following is a copy of so much of the case stated on appeal as need be reported:\nThe defendants moved to dismiss the action because the Mayor had no jurisdiction to try the same, because, upon defendants\u2019 answer, the title to land was put in issue and involved. His Honor overruled the motion, and defendants excepted.\nThe plaintiff then offered the charter of the town of Henderson, ratified by the General Assembly April 1st, 1869, and, to show an acceptance of said charter as required by the fifty-first section thereof, introduced the minutes of the proceedings of the Commissioners of the town of Henderson, dated April 10th, 1869.\nThe defendants objected to the reading of said charter, because it appeared affirmatively by the minutes that the election to accept the charter was not held after the ten days\u2019 notice required by law.\nThe plaintiff then introduced an act of the General Assembly (ch. 51, Laws 1883), amendatory of the charter of said town. His Honor thereupon overruled defendants\u2019 objection, and allowed, the charter to be read, and defendants excepted.\nThe plaintiff then offered to show that the land in controversy had been duly condemed for the purpose of a street in said town, and, to that end, offered a paper marked \u201cD.\u201d\nThe defendants objected to the reading of said paper\u2014\n1. Because it did not appear that there was ever any cause constituted between the plaintiff and defendants in Gran-ville Superior Court in this behalf.\n2. It did not appear that there was any cause constituted in said Superior Court at all.\n3. That it did not appear that there was any law authorizing the report of the action of the commissioners appointed to open or widen streets in Henderson to be recorded in said Granville County.\n4. It did not appear that the defendants were parties to said so alleged record.\n5. That said paper was a record of Granville Superior Court.\nObjection overruled. The paper was read, and defendants excepted.\nThe defendants then objected to the alleged condemnation of said land because it did not appear that the damages assessed in favor of the several parties, to-wit, Reavis and Calvin Betts, had ever been paid to them in hand, or paid into the office of the Clerk of the Superior Court of Gran-ville County, as provided by the charter.\nHis Honor overruled the objection and the defendants excepted.\nIt was admitted by the defendants that, in the summer of 1885, they openly, and under a claim of title, entered upon the land in controversy, which is a portion of what is called Breckenridge street, in Henderson, built houses thereon, and have had continuous possession thereof up. to the time of suing out the warrant in this cause.\nDefendants then offered to show that they had perfect title to the land in controversy, claiming the same through Calvin Betts, among others, and that he was the same Calvin Betts for whom the sum of two hundred and fifty dollars was assessed as damages to said land ; and also that said sum has never been paid to said Betts, nor the ancestors of the defendants, who were the immediate grantors of said Betts, nor was ever deposited in the Clerk\u2019s office of Gran-ville Superior Court.\nHis Honor refused to allow any of said evidence to be offered, and defendants excepted.\nThe plaintiff offered, without objection, the minutes of the Board of Commissioners of the town of Henderson, dated June 22d, 1870, June 23d, 1870, and July 11th, 1870, showing the condemnation proceedings as recorded by said board, in addition to a transcript of the record of the report of the three assessors, the said transcript being objected to.\nThe defendants failed to offer any testimony as to the payment of the money due Betts into the office of the Clerk of the Superior Court.\nA copy of the ordinance passed May 10th, 1888, was handed to the defendants in three weeks after the ordinance was passed.\nThe defendants did not offer to prove title, except through Calvin Betts.\nHis Honor charged the jury that, if they believed the evidence, they should find the issue in favor of the plaintiff, to which charge the defendants excepted.\nThe jury found the issue for the plaintiff.\nThe Court gave judgment for the plaintiff, and the defendants appealed.\nMessrs. A. W. Graham, R. W. Winston and A. G. ZolUcoffer, for plaintiff.\nMessrs. II. T. Watkins, E. G. Smith (by brief), G. II. Snow and T. C. Fuller, for defendants."
  },
  "file_name": "0088-01",
  "first_page_order": 114,
  "last_page_order": 121
}