Can the State by virtue of chapter 48 of Public Laws of 1927 abandon a condemnation proceeding instituted to acquire land in accordance with said statute ?
Section 25 of the Park Act provides in part: “The said commission shall at all times have the power and authority to cause the said proceedings to be dismissed as to any landowner or landowners or any particular tract or portion thereof described in the petition without prejudice to its rights as to other lands so described in said petition or the right to condemn the same: Provided, however, that no tract of land shall be condemned herein unless all of the known owners shown by the record or those claiming an interest therein shall be made parties thereto.
After the final judgment is rendered if, in the opinion of said commission, the award is so excessive as to make the acquisition of the title to said lands undesirable by the State of North Carolina, then the said commission shall be authorized to designate in writing filed in said proceedings its election not to acquire the title to such lands and not to pay the award therefor and such action on its part shall be without prejudice as to any other lands sought to be condemned therein, and in case the election is so made not to pay the award for any of said lands, then the petitioner shall pay to the defendant its costs incurred in said proceedings on account of the lands so rejected by the commission.”
The practical effect of the statute is to authorize the State or Park Commission, the agency of the State, to abandon the condemnation of any particular parcel of land upon filing a written election so to do before the payment of the award and by paying the costs. The result achieved thereby is to leave the landowner in full possession of his land, and when the costs are paid he has suffered no pecuniary injury by reason of the institution of the proceeding. In the case at bar the State had not taken actual possession of the land and had not attempted to exercise any control or dominion thereof. It is not contended that chapter 48, Public Laws of 1927, is unconstitutional. Indeed, the constitutionality of the act has been expressly upheld by this Court in Yarborough v. Park Commission, 196 N. C., 284, 145 S. E., 563. Consequently a valid and constitutional act prescribed a method of statutory abandonment.
The defendants rely upon the consent judgment set out in the record. However, an examination of the decree discloses that it was not intended or contemplated as a final adjudication of all the rights of the parties, because it is expressly declared therein: “It is further ordered that this cause be, and the same is hereby expressly retained for the purpose of determining the question of title to said Ravensford School property, and *767tbe person or persons to whom tbe money shall be paid by tbe clerk, as compensation for said land.”
Manifestly, tbis consent judgment does not constitute an estoppel against tbe State. Therefore, tbe petitioner was entitled to tbe decree of abandonment, and tbe refusal of tbe trial judge to sign tbe same was error.
Reversed.