#### F. B. EFIRD v. CITY OF WINSTON-SALEM.

(Filed 16 June, 1930.)

1. Pleadings D a — Demurrer challenges plaintiff’s right to maintain the action in any view of matter.

A demurrer to the complaint challenges the right of the plaintiff: to maintain his action in any view of the matter, admitting for the purpose the truth of the allegations.

2. Municipal Corporations G a, G d — Ownership of street is prerequisite to power of city to levy street assessments for improvements.

The ownership by the city of a street is a prerequisite to the power of the city to levy an assessment for street improvements against abutting owners thereon, O. S., 2703, and where the plaintiff: in an action to have the street assessments removed as a cloud upon his title alleges in his complaint that the strip of'land along which the plaintiff’s lands abut is owned by him and not by the city as a street, a demurrer, filed on the ground that the owner should have proceeded under C. S., ch. 56, by objecting to the assessment roll at the time, admits the private ownership of the property, and will not be sustained.

3. Same — Upon paying damages for condemnation of street the city may assess abutting owner of property for improvements.

Where the plaintiff alleges a cause of action against a city for talcing his lands and demands compensation therefor, a recovery of the damages would entitle tlie city to assess the remaining property of the plaintiff abutting the land condemned for street improvements.

*34 4. Municipal Corporations G b: Eminent Domain D a — City may condemn land for street and levy assessments for street improvements in same action.

Under tbe provisions of C. S., 2792 (Sup., 1924), a city may in tbe same action proceed to acquire land for a street by condemnation and to bave tbe assessment made for street improvements on tbe lands of tbe abutting owner.

Appeal by defendant from Schenclc, Jat February Term, 1930, of Fosstti-i.

Affirmed.

For a first cause of action plaintiff alleges: That be is tbe owner and in possession of a tract of land of approximately 50 acres, describing same, and about one-tbird is witbin tbe corporate limits of tbe city of Winston-Salem. That on 4 March, 1927, defendant purporting to act under tbe authority of chapter 56, Public Laws of 1915, upon the assumption that it was a public street across a portion of tbe plaintiff’s land, whereas it was not, levied an assessment thereon of $8,152.20, tbe cost of improving and paving said assumed street. That prior to the levy of tbe assessment and paving of tbe street, plaintiff protested to tbe defendant against tbe proposed work and plaintiff denied tbe legal right of defendant to make an assessment against bis property on account of said paving; that tbe assessment is illegal and invalid and casts a cloud upon tbe title of said tract of land.

For a second cause of action plaintiff alleges, after making tbe above allegation as to ownership: That in June, 1926, tbe defendant took possession of a strip of plaintiff’s land 50 feet wide and 550 feet in length lying in the corporate limits of defendant over plaintiff’s protest and objection and paved same, assessing against the remainder of said tract for tbe cost of said pavement $8,152.20, and also laid across tbe said tract of land sewer and water lines. That defendant entered and took possession of said land and brought no proceedings for tbe purpose of vesting title in defendant, and there was no effort on tbe part of defendant to agree with plaintiff upon tbe purchase of tbe land or to acquire tbe right to enter thereon. That defendant’s conduct was unlawful and wrongful; that plaintiff has been damaged in tbe sum of $2,500; that defendant declines to pay plaintiff any damages and refuses to institute condemnation proceedings to acquire title to tbe said land or a right to enter thereon. Pursuant to tbe provision of section 94 of defendant’s charter tbe claim in writing was filed with defendant for $5,500 damages. “Wherefore, be prays that said assessment be declared illegal and invalid; that tbe entry thereof upon tbe record of tbe city of Winston-Salem be canceled and that said city, pending further proceedings herein, be enjoined and restrained from taking any further steps in connection with said assessment or its collection, and especially that said city be enjoined and restrained from advertising and selling *35tbe land herein described in satisfaction of said assessment; that be recover of tbe defendant tbe sum of $2,500, with interest, and tbe costs of tbis action to be taxed by tbe clerk.”

Tbe demurrer of defendant is as follows: “Now comes tbe defendant, city of Winston-Salem, and demurs to tbe first cause of action filed in tbe complaint filed in tbis cause, upon tbe ground that tbe cause of action alleged therein, if any, should have been called to tbe attention of tbe board* of aldermen of tbe city of Winston-Salem, when and where objections would have been beard, and tbe said assessment could have been corrected. That tbe plaintiff did not appear as tbe law provides before tbe board of aldermen, or in anywise protested to tbis assessment, or in anywise appealed from tbe judgment making tbe assessment a lien on bis property which is provided for under Public Laws 1915, chapter 56, and tbe defendant further moves the court to strike from tbe second cause of action that portion of paragraph 3 contained in parenthesis, tbe same being irrelevant.” Tbe allegation requested to be stricken out is as follows, in second cause of action: “Assessing against tbe remainder of said tract, for tbe cost of said pavement, approximately tbe sum of $8,152.20.”

Tbe judgment of tbe court below is as follows: “Tbis cause coming on to be beard, and being beard before bis Honor, Michael Scbenck, judge presiding, at tbe February, 1930, Term of tbe Superior Court of Forsyth County, on tbe demurrer of tbe city of Winston-Salem to tbe first cause of action set out in tbe complaint, tbe grounds for tbe demurrer being that tbe plaintiff did not except to, or appeal from tbe confirmation of tbe assessment roll of tbe board of aldermen, in accordance with chapter 56 of tbe Consolidated Statutes of North Carolina, and the court being of tbe opinion that tbe demurrer should be overruled; it is therefore ordered, adjudged and decreed that tbe demurrer, and tbe same is hereby overruled, and tbe defendant is allowed twenty days from tbe entry of tbis judgment, or if appealed to tbe Supreme Court and decided adversely to tbe defendant, twenty days from tbe certificate of tbe Supreme Court in which to answer or otherwise plead.”

Tbe defendant excepted to tbe judgment for tbe reason set forth in tbe demurrer, assigned error and appealed to tbe Supreme Court.

Oscar O. Efird and Manly, Hendr&n & Wornble for plaintiff.

Parrish & Deal for defendant.

ClaeKSON, J.

“A demurrer goes to tbe heart of a pleading and challenges tbe right of tbe pleader to maintain bis position in any view of tbe matter, admitting for tbe purpose tbe truth of tbe allegations of fact contained therein.” Meyer v. Fenner, 196 N. C., at p. 477; Winston-Salem v. Ashby, 194 N. C., at p. 390.

*36The material question presented on this appeal is set forth in defendant’s assignment of error: “That the confirmation of the assessment roll by the board of aldermen of the city of 'Winston-Salem precludes and bars the present contentions of the plaintiff as set out in the complaint, and that the plaintiff should have objected to the confirmation of the assessment roll at the time and place provided therefor, and should have appealed from the confirmation of the assessment roll in accordance with chapter 56 of Consolidated Statutes of North Carolina.” We cannot so hold.

It seems that defendant has no local statute on the subject and its right depends on the public statutes. From the allegations. set forth in the first cause of action, we think plaintiff’s complaint states a cause of action. It appears from the complaint that defendant entered and took possession of plaintiff’s land that it had no right of possession or title to, against his protest, paved the locus in quo and levied an assessment on his land. In the case of Greensboro v. Bishop, 197 N. C., 748, the condemnation and assessment were made in one action. See chapter 220, Public Laws of North Carolina, 1923, O. S., 2792 (Sup., 1924), a to p inclusive. In the present action, from the allegations of plaintiff’s complaint, the land taken by defendant and paved was his private property and not a public street.

It is well settled that if plaintiff’s land was in the city of Winston-Salem and the locus in quo was a street or alley of the city, the position contended for by defendant would be applicable. The statutory remedy would have to be followed. The whole street improvement statutes are bottomed on street and alley improvement, which implies ownership in the city. C. S., 2703; Brown v. Hillsboro, 185 N. C., 368; Gunter v. Sanford, 186 N. C., 452; Leak v. Wadesboro, 186 N. C., 683; Vester v. Nashville, 190 N. C., 265; A. C. L. Ry. Co. v. Ahoskie, 192 N. C., 258; Mfg. Co. v. Pender, 196 N. C., 744; In re Sou. Ry. Co. Paving Assessment, 196 N. C., 756; Jones v. Durham, 197 N. C., 127; Noland v. Asheville, 197 N. C., 300.

In R. R. v. Ahoskie, 192 N. C., at p. 260, the following is said: “Therefore, under our statute, one of the essential requisites of a valid assessment is the existence of a public street or alley. It is admitted that all of the requisites of a valid assessment appear except the one requiring the existence or establishment of a public street. The defendant contends that the property improved was a public street, and the plaintiff contends to the contrary. This was a fact to be established by evidence. An assessment, under the express language of our statute, implies the existence of a public street. If no public street existed, then no assessment can be legally laid upon abutting owners.”

*37In R. R. v. Ahoskie, supra, there was a dispute of fact as to whether the land was a public street or the property of the railroad. The railroad submitted itself to the assessment procedure, protested to the work being done as the property belonged to it and not to the town of Ahoskie, and appealed under C. S., 2714, from the confirmation. The Court said, at p. 262: “The conclusion of the whole matter, therefore, is whether or not this assessment was valid. If Eailroad Street is a public street of the town of Ahoskie, then the town had the right to make a valid assessment against abutting owners. If it is not a public street, then no assessment under our statute could he properly made. This is a question of fact to he determined and established by competent evidence, and, certainly, the validity of the assessment under our statutes can be challenged in the assessment proceedings.”

In the present action the demurrer admits the ownership of the land in plaintiff and there is no present dispute on the record as to that fact. If the defendant had proceeded under chapter 220, Public Laws of N. C., 1923; C. S., 2792 (Sup., 1924), a to p inclusive, the condemnation and assessment could be made in one action. Greensboro v. Bishop, supra.

The defendant demurred ore- tenus to the second cause of action. We think defendant’s contention untenable.

From the present record, under the second cause of action, compensation will have to be paid plaintiff for the land taken by defendant. When defendant acquires title to the land, it can make an assessment on the land for street improvements.

In Construction Co. v. Brockenbrough, 187 N. C., p. 77, we said: “As was said in Board of Commissioners, supra (183 N. C., p. 302) : ‘Subject to certain exceptions, the general rule is that the Legislature may validate retrospectively any proceeding it might have authorized in advance.’ The municipality can do the same.” Storm v. Wrightsville Beach, 189 N. C., at p. 683; Brown v. Hillsboro, 185 N. C., 377; Holton v. Mocksville, 189 N. C., 145.

It would be inequitable for plaintiff to receive compensation for his land and obtain the street improvements also without paying a just assessment.

The second cause of action of plaintiff’s complaint sets forth an action to recover damages for the land that plaintiff alleges that defendant has unlawfully and wrongfully taken and in the same action asks that the assessment lien he removed as a cloud on the title. Under the facts and circumstances of this cause, fair dealing would require that the defendant be awarded the right to levy a just assessment when defendant pays the damages for the land to plaintiff under the second cause of action. The judgment is

Affirmed.