State Highway Commission v. Greensboro City Bd. of Ed., 704

• Decision Date: 23 July 1965
• Docket Number: No. 704,704
• Citation: 265 N.C. 35,143 S.E.2d 87
• Parties: STATE HIGHWAY COMMISSION, v. The GREENSBORO CITY BOARD OF EDUCATION, Greensboro High School Stadium Corporation.
• Court: North Carolina Supreme Court

Page 87

143 S.E.2d 87

265 N.C. 35

STATE HIGHWAY COMMISSION, v. The GREENSBORO CITY BOARD OF EDUCATION, Greensboro High School Stadium Corporation.

No. 704.

Supreme Court of North Carolina.

July 23, 1965.

Atty. Gen. Thomas Wade Bruton, Asst. Atty. Gen. Harrison Lewis, and Trial Atty. Andrew McDaniel, Raleigh, and Associate Attys. Stern, Rendleman & Clark, Greensboro, for plaintiff appellant.

Moseley & Edwards by Robert F. Moseley and Cooke & Cooke by William Owen Cooke, Greensboro, for defendant Greensboro City Board of Education.

PARKER, Justice.

At the outset it should be understood that we are not here passing upon the right of a municipal corporation to exercise the power of eminent domain to condemn property already devoted to a public use, as was the case in Southern R.R. v. City of Greensboro, 247 N.C. 321, 101 S.E.2d 347; City of Goldsboro v. Atlantic Coast R.R., 246 N.C. 101, 97 S.E.2d 486; Yadkin County v. City of High Point, 217 N.C. 462, 8 S.E.2d 470, cases relied on by the City Board of Education. 'The State is not a municipality within the meaning of the Constitution.' Bridges v. City of Charlotte, 221 N.C. 472, 20 S.E.2d 825.

The State Highway Commission is a State agency or instrumentality, and as such exercises various administrative and governmental functions. G.S. § 136-1; Smith v. State Highway Commission, 257 N.C. 410, 126 S.E.2d 87; Equipment Co. v. Hertz Corp., 256 N.C. 277, 123 S.E.2d 802; Carpenter v. Atlanta & C.A.L. R.R., 184 N.C. 400, 114 S.E. 693. Its powers and duties are set forth in G.S. Chapter 136, Article 2. It is the State agency created for the purpose of constructing, developing, and maintaining 'a state-wide system of roads and highways commensurate with the needs of the State as a whole * * *.' G.S. § 136-1.

The Greensboro City Board of Education was created and exists by virtue of G.S. Chapter 115, Article 5. By virtue of G.S. § 115-27, it is a body corporate, and has the authority to purchase and hold real and personal property for school purposes, and to prosecute and defend suits against it. It has the authority, by virtue of G.S. § 115-125, to acquire by condemnation sites for school houses or other school facilities.

The statutory machinery for the operation of the public school system of this State is codified in Chapter 115 of the General Statutes. G.S. § 115-8 sets up two coordinate classes of local administrative units: (1) county units, and (2) city administrative units. This statute provides 'The governing board of a city administrative unit is 'the . . . city board of education,'' with its executive officer designated a 'superintendent,' and its executive head a 'principal.' This Court said in Smith v. Hefner, 235 N.C. 1, 68 S.E.2d 783 (1951): 'By application of this principle, a subordinate division of the state, or agency exercising statutory governmental functions like a city administrative school unit, may be sued only when and as authorized by statute.' In the Burlington City Board of Education v. Allen, 243 N.C. 520, 91 S.E.2d 180 (1956), the Court said: 'The petitioner is an administrative agency of the government.'

This is a description of the 129.19 acres of land owned by the City Board of Education as set forth in plaintiff's declaration of taking:

'Those certain lands lying and being in Morehead Township, Guilford County, North Carolina, and being that parcel of land conveyed to Greater Greensboro School District by deed dated November 5, 1927, recorded in Book 571, page 359; deed to Board of Education of Greater Greensboro School District dated July 11, 1928, recorded in Book 606, page 557; and deed to The Greensboro City Board of Education dated November 16, 1960, recorded in Book 1923, page 406, Guilford County Public Registry; said referenced descriptions being specifically incorporated herein.'

We are concerned in the instant case with the power of the sovereign State of North Carolina, acting by the State Highway Commission, its State agency and in essence the sovereign State of North Carolina itself, and in behalf of the State and for its immediate sovereign purposes, to condemn, under the provisions of G.S. § 136-89.52, for a 'controlled-access facility' to a controlled-access State highway project property owned by the Greensboro City Board of Education and devoted to a public use, which City Board of Education is 'a subordinate division of the state, or agency exercising statutory governmental functions,' and vested with the power of eminent domain. This is not an action, if there ever should be such, in which the State Highway Commission seeks to acquire by condemnation property owned by, and with title in, the State of North Carolina, and already devoted to a public use.

The power of eminent domain is one of the essential attributes of a sovereign state, and an inherent power necessary to the very existence of government. It comes into being eo instante with the establishment of government, and continues as long as the government endures. It does not require recognition by constitutional provision, but exists in absolute and unlimited form, and under this doctrine, therefore, positive assertion of limitations upon the power is required. Such assertion of limitations is a limitation upon a sovereign state's such inherent power. Redevelopment Commission of Greensboro v. Hagins, 258 N.C. 220, 128 S.E.2d 391, and authorities there cited; Burlington City Board of Education v. Allen, supra; 1 Nichols on Eminent Domain, rev. 3d ed., 1.14, p. 18. In Burlington City Board of Education v. Allen, it is said: 'It is the exclusive prerogative of the Legislature--limited only by our organic law which requires that just compensation shall be paid for the land so appropriated--to prescribe the method of taking land for the public use.'

The following finding of fact made by Judge Gambill is not challenged by the parties: 'West Wendover Avenue at the place where the State Highway Commission plans to have it cross over the property of The Greensboro City Board of Education will be a limited access highway consisting of four traffic lanes, two for traffic traveling east and two for traffic traveling west with ramps at Westover Terrace and Benjamin Boulevard.' This unchallenged finding of fact shows that the State Highway Commission is seeking to condemn land of the City Board of Education for 'controlled-access facilities' within the intent and meaning of G.S. § 136-89.49(2), which reads: "Controlled-access facility' means a State highway, or section of State highway, especially designed for through traffic, and over, from or to which highway owners or occupants of abutting property, or others, shall have only a controlled right or easement of access.' Barnes v. North Carolina State Highway Commission, 257 N.C. 507, 126 S.E.2d 732.

G.S. § 136-89.49 is codified under G.S. Chapter 136, Article 6D.

G.S. § 136-89.52, which is codified under G.S. Chapter 136, Article 6D, reads in relevant part: 'For the purpose of this article, the Commission may acquire private or public property and property rights for controlled-access facilities and service or frontage roads, including rights of access, air, view and light, by gift, devise, purchase, or condemnation in the same manner as now or hereafter authorized by law to acquire such property or property rights in connection with highways. The property rights acquired under the provisions of this article may be in fee simple or an appropriate easement of right of way in perpetuity.' (Emphasis supplied.)

In 1 Nichols on Eminent Domain, rev. 3d ed., § 2.2, p. 203, it is stated: 'In the determination of the question whether or not property already devoted to a public use can be subjected to the process of eminent domain the primary factor to be considered is the character of the condemnor. If the sovereign, such as the state or the United States, on its own behalf and for its own sovereign purposes, seeks to acquire such property by eminent domain, the character of the 'res' as public property, generally, has no inhibiting influence upon the exercise of the power.'

Likewise it is stated in 29A C.J.S. Eminent Domain § 74. pp. 326-328: 'As a general rule, property already devoted to a public use cannot be taken for another public use which will totally destroy or materially impair or interfere with the former use, unless the intention of the legislature that it should be so taken has been manifested in express terms or by necessary implication, mere general authority to exercise the power of eminent domain being in such case insufficient; and this is so whether the property was acquired by condemnation or by purchase. The rule also applies to property about to be lawfully appropriated, although the appropriation is not complete. However, the general rule does not ordinarily apply where the power of eminent domain is being exercised by the sovereign itself, such as the state or federal government, for its immediate purposes, rather than by a public service corporation or a municipality.' To the same effect, Jahr, Eminent Domain, § 20.

The factual situation in the case of State of Louisiana through the Department of Highways v. Ouachita Parish School Board, 242 La. 682, 138 So.2d 109, reh. den. 2 February 1962, cert. den. 370 U.S. 916, 82 S.Ct. 1553, 8 L.Ed.2d 497, is quite similar to the factual situation in the instant case. In that case the proceeding was instituted by the Department of Highways for the expropriation for a controlled-access highway facility of a tract of land owned by the Ouachita Parish School Board, consisting of an entire square in the city of Monroe with buildings and improvements. The tract sought to be expropriated at the time of the suit was being used by the school board in connection with a junior high school with 1200 pupils, and lies in the center of the school facility between the classroom building and the gymnasium. The Supreme Court, after first holding that...