Stephens Co. v. City of Charlotte

BkogdeN, J.

Does a provision of the charter of the city of Charlotte, requiring notice, apply to an action for compensation for the taking of private property for public use?

The plaintiff was permitted to amend the complaint by alleging “and that, by such taking and using, the defendant by virtue of an implied promise and agreement on its part to pay the plaintiff for said water mains, became indebted to the plaintiff in the amount of the value *261 thereof.” By virtue of such amendment the plaintiff contends that the suit is based upon contract, and hence the charter provision does not aPp]y because such provision is limited to actions for damages growing out of a tort.

The general subject of notice is discussed in McIntosh North Carolina Practice and Procedure in sections 187 and 389. See Pender v. Salisbury, 160 N. C., 363 , 76 S. E., 228 ;

Dayton v. City of Asheville, 185 N. C., 12 , 115 S. E., 827 , 30 A. L. R., 1186;

Graham v. City of Charlotte, 186 N. C., 649 , 120 S. E., 466 ;

Peacock v. City of Greensboro, 196 N. C., 412 , 146 S. E., 3 . See, also, Kirby v. Commissioners, 198 N. C., 440 , 152 S. E., 165 .

The defendant contends that the Dayton case is determinative, but it must be observed that the Dayton case did not involve the physical taking of property. The injury to plaintiff’s property in that case arose from negligent construction or operation of the incinerator, resulting in the emission of smoke, grease, ashes and noxious odors. That is to say, the injury arose from negligence, and hence in the ultimate analysis, the cause of action sounded in tort. From a careful perusal of all the cases bearing upon the subject, the Court is of the opinion that the statutory provision with respect to notice does not include a claim for compensation arising out of physical appropriation of private property for public use.

The second contention made by the defendant is that the plaintiff had nothing to sell to the city or nothing of value for which the city would be liable for the appropriation so made. This contention is determined adversely to the defendant by the decision of this Court in Realty Co. v. Charlotte, 198 N. C., 564 .

There are many exceptions in the record, but the essential merits of the case are determined by the propositions of law hereinbefore referred to.

No error.

Stacy, C. J., dissents.