# Red Springs City Board of Education v. McMillan

> Supreme Court of North Carolina · June 12, 1959 · 250 N.C. 485

URL: https://www.frixlaw.com/law-library/cases/9844924

## Case

- **Full name:** The RED SPRINGS CITY BOARD OF EDUCATION v. MARY C. McMILLAN, CORNELIA S. McMILLAN, HAMILTON McMILLAN, MIGNON McMILLAN, JANE McMILLAN, MARY E. PALMER and Husband, MELVIN PALMER, and CATHERINE M. TUDOR and Husband, CHARLES TUDOR
- **Court:** Supreme Court of North Carolina
- **Decided:** June 12, 1959
- **Citations:** 250 N.C. 485; 108 S.E.2d 895; 1959 N.C. LEXIS 684
- **Precedential status:** Published
- **Opinion:** Concurrence by Parker
- **Judges:** Winborne, Parker, Higgins
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9844924

## How later opinions describe it (automated extraction)

- holding that the injured party has the burden of the issue on damages and must convince the jury by a greater weight of evidence that he has been damaged.

## Opinion text

PARKER, J.,
concurring in the result. This proceeding was instituted on 10 June 1957. As I read the Record, petitioner did not make an actual entry upon the McMillan respondents’ land, and exercise dominion over it prior to the trial in the Superior Court. The taking of the McMillan land by petitioner occurred, it would seem from the judgment entered herein, immediately after the trial in the Superior Court.
This Court said in Penn v. Coastal Corp., 231 N.C. 481 , 57 S.E. 2d 817 , quoting from 18 Am. Jur., p. 757 -8: “What is a taking of property within the due process clauses of the Federal and State Constitutions is not always clear, but so far as general rules are permissible of declaration on the subject, it may be said that there is a taking when the act involves an actual interference with, or disturbance of, property rights, resulting in injuries which are not merely consequential or incidental.”
There is conflict in authority as to the right to recover interest upon the judgment in condemnation proceedings taking private property for public use. Nichols’ On Eminent Domain, 3rd Ed., (1953), Vol. 6 §26.64; 29 C.J.S., Eminent Domain, §333.
In the above cited section of Nichols, it is said: “The right to interest upon the judgment in condemnation has been held generally to depend upon statutory authorization although, even in the absence of legislative sanction, it has been said that the constitutional provision for just compensation requires the allowance of such interest. In any event, such interest has generally been allowed.”
In Winston-Salem v. Wells, 249 N.C. 148 , 105 S.E. 2d 435 , a condemnation proceeding, it is held that the respondents are entitled to interest"on judgment for $10,000.00 from the date of the taking until paid.
I concur in the result here that the McMillan respondents are en *492 titled to interest on the judgment from the date of its rendition until paid.
In my opinion, when private property is taken under the power of eminent domain for public use, Article I, §17, of the North Carolina Constitution requires the payment of interest on the judgment until paid, for without it there is no just compensation. This constitutional prohibition against taking private property for public use without the payment of just compensation is self-executing, and neither requires any law for its enforcement, nor is susceptible of impairment by legislation. Sale v. Highway Commission, 242 N.C. 612 , 89 S.E. 2d 290 ; People ex rel. Wanless v. Chicago, 378 Ill. 453 , 38 N.E. 2d 743 , 138 A.L.R. 1298 ; People ex rel. Markgraff v. Rosenfield, Director of Public Works and Buildings, 383 Ill. 468 , 50 N.E. 2d 479 ; State Highway Commission v. Mason, 192 Miss. 576 , 6 So. 2d 468 ; Parker v. State Highway Commission, 173 Miss. 213 , 162 So. 162 ; Virginia Hot Springs Co. v. Lowman, 126 Va. 424 , 101 S.E. 326 ; Nelson County v. Loving, 126 Va. 283 , 101 S.E. 406 ; Angelle v. State, 212 La. 1069 , 34 So. 2d 321 , 2 A.L.R. 2d 666 ; Schmutte v. State, 147 Neb. 193 , 22 N.W. 2d 691 ; Rose v. State, 19 Cal. 2d 713 , 123 P. 2d 505 ; Tomasek v. State, 196 Or. 120 , 248 P. 2d 703 ; Milhous v. State Highway Dept., 194 S.C. 33 , 8 S.E. 2d 852 , 128 A.L.R. 1186 ; 16 C.J.S., Constitutional Law, pp. 149-150 (when Constitutional Law was in one volume-of C.J.S., this was 16 C.J.S., Constitutional Law, p. 102). The sounder oases cited in Nichols and Corpus Juris Secundum in the sections above cited support, I think, my view.
In Yancey v. Highway Commission, 222 N.C. 106 , 22 S.E. 2d 256 , a taking of private property for public use, this Court held that the respondent was not required to pay interest on the judgment, because no statute authorized such payment. In my judgment, the decision is wrong, and does violence to Article I, §17, of the State Constitution, and to the 14th Amendment ¡to the United States Constitution. See United States v. Rogers 255 U.S. 163 , 65 L. Ed. 566 . The decisions in Winston-Salem v. Wells, supra, and in the instant case have disemboweled the Yancey case without referring to it by name. I would administer the coup de grace to the Yancey decision by specifically overruling it.
HiggiNS, J., joins in concurring opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9844924. Public record. Not legal advice.