State v. . Lumber Company , 197 N.C. 4 ( 1929 )

Special proceeding, instituted by virtue of chapter 48, Public Laws 1927, to condemn lands for park and recreational purposes in the Great Smoky Mountains of North Carolina.

The substance of the petition is:

1. That the State of North Carolina is one of the sovereign States of the United States of America, clothed with the right of eminent domain, subject to its Constitution and laws enacted in pursuance thereof, and that by virtue of an act of the General Assembly of North Carolina, ratified 25 February, 1927, entitled "An act to provide for the acquisition of parks and recreational facilities in the Great Smoky Mountains of North Carolina," the same being chapter 48, Public Laws 1927, the petitioner is vested with the power of acquiring in the name of and in behalf of the State of North Carolina, and to condemn for park purposes, lands and other properties, located or situate within the area of the Great Smoky Mountains as described and set out in the act above mentioned.

2. That the respondents are the owners of certain tracts of land situate in said area, and that the Suncrest Lumber Company is now engaged in cutting the timber on the lands sought to be condemned, which will enormously diminish its value for park purposes unless restrained from such cutting.

Wherefore, the petitioner asks for condemnation against the respondents and restraint from further timber-cutting on the part of the Suncrest Lumber Company.

The petition is verified by the chairman of the North Carolina Park Commission, who alleges that he is duly authorized to make such verification.

A demurrer was interposed by the respondents on the grounds:

1. That there is a defect of parties plaintiff, in that, the proceeding, if validly authorized at all, should have been instituted by the North Carolina Park Commission and not by the State itself.

2. That the petition does not state facts sufficient to constitute a cause of action against the respondents, or any one of them, as the State of North Carolina has not been duly authorized to institute the proceeding, and further it does not appear from the petition that the chairman of the North Carolina Park Commission is an officer of the State or has any power or authority to verify said petition.

From a judgment overruling the demurrer and continuing the restraining order to the hearing, the respondents appeal, assigning error. After stating the case: The constitutionality of chapter 48, Public Laws 1927, was asserted in Yarborough v. Park Commission, 196 N.C. 284,145 S.E. 563, and Suncrest Lumber Co. v. North Carolina Park Commission,29 F.2d 823, S. c., 30 F.2d 121.

These cases also hold that the North Carolina Park Commission, while denominated in the act as a "body politic and corporate," is not a municipal or private corporation in the ordinary sense, but rather an agency of the State clothed with the power of eminent domain to be exercised on behalf of the State of North Carolina and in its name. Section 18. The demurrer, therefore, was properly overruled on the first ground.

Likewise, on authority of these same cases, the demurrer was properly overruled on the second ground set out therein. It would serve no useful purpose to repeat what has been so recently said in the cases cited. They apparently dispose of all the questions debated before us.

In considering the present appeal, we are restricted to the grounds specified and designated in the demurrer. C. S., 512; Glass Co. v. HotelCorp., post, 10; Seawell v. Cole, 194 N.C. 546, 140 S.E. 85.

Affirmed.