#### STATE HIGHWAY AND PUBLIC WORKS COMMISSION v. C. B. BASKET et al.

(Filed 13 October, 1937.)

Eminent Domain § 6 — Highway Commission may condemn top soil for x’oad construction.

The State Highway and Public Works Commission is authorized by eh. 2, see. 22, Public Laws of 1921 (N. C. Code, 3846 [bb]) to acquire by condemnation top soil deemed necessary and suitable for road construction, “top soil” being included in the generic term “earth,” and its power to acquire top soil is not limited to lands contiguous to the highway upon which it is to be used.

Conroe, J., dissenting.

This was a condemnation proceeding, instituted in YaNce Superior Court and beard by Parker, J., at Chambers, on 10 July, 1937, in Halifax.

Affirmed.

Charles Ross for petitioner, appellee.

J. H. Bridgers and Jasper B. Hicks for respondents, appellants.

ScheNCK, J.

On 3 July, 1937, tbe petitioner procured from Harris, J., an order temporarily restraining tbe respondents from interfering with its taking top soil from tbe lands of tbe respondents with which to construct a public highway, and on 5 July, 1937, tbe respondents procured from Parker, J., an order temporarily restraining tbe petitioner from taking top soil from tbeir lands for tbe purpose of constructing a public highway. Both orders were returnable to Parker, *222Resident Judge, wbo, after bolding a joint bearing tbereon, dissolved tbe order procured by tbe respondents and continued in effect tbe order procured by tbe petitioner, and directed “tbat tbis cause be retained on tbe special proceeding docket for tbe purpose of determining tbe amount of compensation wbicb tbe defendants may be entitled to.” From tbis ruling tbe respondents appealed, assigning errors.

Tbe proceeding of the petitioner was instituted under section 22 of chapter 2 of tbe Public Laws of 1921 (being sec. 3846 [bb], N. C. Code of 1935, Michie), creating tbe State Highway Commission, and containing tbis specific grant of power: “Tbe State Highway Commission is vested with tbe power to acquire such rights of way and title to such land, gravel, gravel beds or bars, sand, sand beds or bars, rock, stone, boulders, quarries, or quarry beds, lime, or other earth or mineral deposits or formations, and such standing timber as it may deem necessary and suitable for road constructions, maintenance, and repair, and tbe necessary approaches and ways through, and a sufficient amount of land surrounding and adjacent thereto, as it may determine to enable it to properly prosecute tbe work, either by purchase, donation, or condemnation, in tbe manner hereinafter set out: . . .”

It is tbe contention of tbe respondents, first, tbat tbe statute does not vest in tbe petitioner tbe power to acquire top soil, deemed necessary and suitable for road construction, and, second, even if tbe statute does vest tbe power to acquire top soil, tbat it does not vest such power to acquire top soil from lands not contiguous to tbe highway upon tbe construction of which such soil is to be used.

We are of tbe opinion, and so bold, tbat neither of these contentions can be sustained.

Tbe statute uses tbe word “earth,” wbicb, as used, is a generic term and includes top soil, á species of earth. Hoke, J., in Jennings v. Highway Commission, 183 N. C., 68, in interpreting tbis statute, says: “And in chapter 2, section 22, they have also given defendant board tbe right to acquire material, gravel beds, sand bars, rocks, or other soil, mineral deposits, etc., necessary and suitable for tbe construction and maintenance of such roads. . . .”

There is nothing in tbe statute tbat limits tbe taking of tbe earth deemed necessary and suitable for road construction, maintenance, and repair to lands contiguous to tbe highway upon wbicb it is to be used.

Tbe judgment of tbe Superior Court is

Affirmed.

CoNÑOR, J.,

dissenting:

It is provided by statute tbat “Tbe State Highway Commission is vested with power to acquire such rights of way and title to such lands, gravel, gravel beds or bars, sand, sand beds or *223bars, rock, stone, boulders, quarries, or quarry beds, lime or other earth, or mineral deposits or formations, and such standing timber as it may deem necessary and suitable for road construction, maintenance, and repair, and the necessary approaches and ways through, and a sufficient amount of-land surrounding and adjacent thereto,' as it may determine, to enable it to properly prosecute the work, either by purchase, donation, or condemnation in the manner hereinafter set out.” N. C. Code of 1935, sec. 3846 (bb).

This statute, which authorizes the State Highway Commission, as an agency for the State, to take private property for public use, by the exercise of the power of eminent domain, should be construed strictly. The words “and other earth,” used in the statute, should be construed in accordance with the doctrine of ejusdem generis, which is fully discussed in 59 C. J., at page 981.

Thus construed, the words do not, in my opinion, include “top soil,” which is valuable for growing crops. I cannot think that it was the intention of the General Assembly that the State Highway Commission should have the power under the statute to enter upon cultivated land and to remove therefrom the “top soil” to be used in the construction of a highway at last three miles distant from the land.

I think there is error in the judgment for which it should be reversed.