JOHNSTON v. RANKIN et al., Commissioners, &c.

conscience, keep the land, and take the benefit of having his debt paid off by the plaintiff?

These questions were all cut off by the exclusion of the evidence as to the endorsements upon the venditioni exponas. We are of opinion his Honor erred in rejecting this evidence. Judgment reversed.

PER CURIAM.

Venire de novo.

WM. JOHNSTON v. J. E. RANKIN and others, Commissioners, &c. Although there is no clause in the Constitution of North Carolina which expressly prohibits private property from being taken for public use without compensation; and although the clause to that effect in the Constitution of the United States applies only to acts by the United States, aud not to the governments of the States, yet the principle is so ground in natural equity, that it has never been denied to be a part of the law of North Carolina. State v. Newsom, 5 Ired. 50; Davis v. The R. & G. Railroad Co., 2 Dev. and Bat. 451; State v. Glenn, 7 Jones, 321; Cornelius v. Glenn, Ib. 512

The Act of 1863, Private Acts, chap. 47, authorizing the Commissioners of the town of Asheville to extend the streets, &c., is not unconstitutional because of the manner therein prescribed, providing compensation to the owners of the land taken or injured by extending such

streets.

A plaintiff, whose land has been taken by the Commissioners of a town for public use, waives all irregularities in the proceedings condemning such land, when he appeals from the assessment of damages by the persons appointed to assess them.

Such appeal from the assessment of damages, carries up no other ques tion than the amount of the compensation which the plaintiff may be entitled to; and the Commissioners are not guilty of a trespass in proceeding with their improvements pending the appeal.

CIVIL ACTION, motion to dissolve a restraining order, heard by Cloud, J., at the Fall Term, 1873, of TRANSYLVANIA SUperior Court.

JOHNSTON V. RANKIN et al., Commissioners, &c

The facts pertinent to the points decided are fully stated in the opinion of the Court.

From the judgment of the Court below, continuing the injunction to the hearing, the defendants appealed.

J. H. Merrimon, for appellants, submitted:

This was an application for an injunction to suspend the ordinary business of a corporation. The injunction was granted contrary to the provisions of the Code of Civil Procedure. See sec. 194, C. C. P.

When a municipal corporation is authorized to make improvements and a mode of ascertaining and making compensation for private property therefor is provided, that remedy is exclusive. An action for damages for the injury done in taking such property is not maintainable. Abbott's Dig. Law of Corporations, 500, 535, and cases there cited; Ibidem 192; McEntyre v. The Western N. C. R. R. Co, 67 N. C. R 278, and cases there cited and approved; Dillon on Municipal Corporations, sec. 478. See particularly Jerome v. Ross, Johnson's N. Y. Chancery R., vol. 6, p. 315.

As to the mode of getting the proceedings of municipal corporations before the Courts; see Dillon on Cor., sec. 476; High on Inj., sec. 348.

Nuisances: The jurisdiction to grant relief by injunction against nuisances, whether public or private, is founded on the right to restrain the exercise or erection of that from which irreparable damage to individuals or great public injury would It is exercised with great caution. Drewry on Inj. 238; High on Inj., sections 486 to 489.

ensue.

Equity will not interfere to prevent a contingent nuisance. Drewry on Inj. 248-9; Simpson v. Justice, 8 Ire. Eq. 115; Eason v. Jerkins, 2 Dev. Eq. 38; Barnes v. Calhoun, 2 Ire. Eq. 199; Attorney Genaral v. Lea, 3 Ire. Eq. 301; Ellison v. Commissioners of Washington, 5 Jones Eq. 57.

It is no grou d for an injunction against an execution at law that the judgment on which it issued was irregular and void;

JOHNSTON V. RANKIN et al., Commissioners, &c.

for as to that the Court of law could give complete relief. Emmons v. McKesson, 5 Jones' Eq. 92; Partin v. Lutterloh, 5 Jones' Eq. 341.

An injunction to stay proceedings at law cannot, except under very special circumstances, be granted before answer unless the defendant is in contempt. Drewry on Inj. 351. Ib. 248: Courts of Equity will not ordinarily restrain proceedings of other Courts.

Irregularities of the proceedings by the town authorities : 1. Can be remedied by appeal. See sec. 14 of the act of 1863, cited in the pleadings.

2. The plaintiff in this action did appeal and thereby waived the irregularity of the notice, if there was any. Little v. May, 3 Hawks. 599; 3 Dev. & Bat. 358; Taylor v. Marcus et al., 8 Jones 402; Abbott's Dig. Law of Cor. 187, secs. 70, 71.

3. An injunction will not be granted on account of irregularities. See High on Iuj., sec. 782. The irregularities can be remedied by certiorari or appeal. Dillon on Cor., secs. 470, 476.

As to the mode of procedure by the town authorities:

The provisions in the Constitution in relation to trial by jury have no relation to cases of this kind. Sedgwick on Stat. and Com. Law, 529 and 549.

The tribunal to determine amount of compensation must be created by positive law. Dillon on Cor., sec. 482.

The power of the Legislature to delegate the right to take private property for public use. Dillon on Cor., sec. 467.

As to the validity of the act of the Legislature cited in the answers of the town authorities:

See Sapona Iron Company v. Holt, 64 N. C. R. 335 ; Brodnax et al. v. Groom et al., Com., 64 N. C. R. 247; Neely v. Craige and Hall, Executors, Phil. Law, 187. These cases establish the validity of acts passed during the war.

See an ordinance declaring what laws in force, &c., ratified Oct. 18, 1865. Convention Doc., p. 56, at the latter part of the book.

JOHNSTON v. RANKIN et al., Commissioners, &c.

The town authorities the sole judge of the necessity of making improvements. Dillon on Cor., secs. 465, 466.

Not ordinarily controlled in the exercise of their powers. Dillon on Cor., 58, 59.

As to the kind of compensation. Sedgwick Stat. and Com. Law, 502, 503, 531.

When the injury inflicted is of a character that can properly be met by pecuniary compensation, equity will not interfere. Drewry on Inj., 245.

The want of jurisdiction may be taken advantage of by answer. C. C. P., sec. 98.

McCorkle & Bailey, for plaintiff, submitted the following briet:

[Case arising under Private Acts of 1862-63, ch. 47, p. 47, Adjourned Session.]

I. We submit, first, that the act in so far as the right of eminent domain is concerned is unconstitutional, as it deprives persons of their "freeholds," &c., otherwise than "by the law of the land."

(1.) By providing for a jury partial in its very essence and constitution to one of the parties.

(2.) By ignoring the right of challenge.

(3) By failing to provide notice of the selection. Dillon on Mun. Corp. sec 471, at p. 455, also secs. 455, 482.

II. We further submit, that the proceedings were void. It was a law suit in which the plaintiff never "had a day in Court."

(1.) The notice of drawing the jury was for the 26th, and the jury drawn on the 29th.

(2.) No right to draw except as the day designated in the

warrant.

(3.) No notice to the plaintiff of the view. Dillon, sec. 471. III. Though an appeal was taken, the defendants continue their irreparable trespasses.

IV. There was no compensation assessed. We are relieved

JOHNSTON V. RANKIN et al., Commissioners, &c.

from discussing the question as to what effect the Fourteenth Amendment to the Federal Constitution has produced in extending the operation of the fifth amendment, which provides that "private property shall not be taken for public use without just compensation," as the charter contemplates the payment of compensation, and by section 12 the payment is made a condition precedent to the acquisition of the property. No damages were assessed upon the idea that general benefit could be taken into consideration, but independent of the circumstance that the charter contains no provision for deduction even in those which do. This Court has held that general benefits enjoyed in common with others cannot be taken into consideration. Fredle v. N. C. R. R. Co., 4 Jones, 89. Judge DILLON, in his invaluable treatise, arrives at the same conclusion. Sec. 477.

V. The injury threatened and commenced was in its nature irreparable, amounting to destructive trespass, and injunction is the property remedy to prevent the irreparable tort.

The true ground for equitable jurisdiction is not that there is no legal remedy but no adequate. As to right to injunction we cite Dillon, sec. 478; Gower v. Philadelphia, 35 Pa. 231, and especially so where the power of taxation is quite limited, &c. Keene v. Bristol, 26 Pa. 46.

RODMAN, J. In this action, the plaintiff seeks to recover damages, for a trespass on his land by the defendant and his servants and agents, in extending over the land and through the plaintiff's enclosure, a street of the town of Asheville. As auxiliary to such remedy, and to prevent irreparable damage, he asks for an injunction. The injunction was ordered, and at Transylvania Superior Court the defendants moved to vacate it, which the Judge refused to do, and from that refusal an appeal was taken.

The defendants, in their answer, admit the alleged trespass, but justify by pleading that defendant Rankin was at the time

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