City of Charlotte v. Heath

• Decision Date: 27 November 1946
• Docket Number: 523
• Citation: 40 S.E.2d 600,226 N.C. 750
• Parties: CITY OF CHARLOTTE v. HEATH et al.
• Court: North Carolina Supreme Court

40 S.E.2d 600

226 N.C. 750

CITY OF CHARLOTTE v. HEATH et al.

No. 523

Supreme Court of North Carolina

November 27, 1946

The residents of a considerable area on the watershed in the immediate vicinity of the corporate limits of the City of Charlotte, at the time consisting of 65 or 70 persons, had been using a common septic tank, which, as the population increased, proved insufficient for its purpose, overflowed and became so offensive and such a menace to the health of those inhabiting the city and its environs that the county health authorities demanded removal of the condition as dangerous to the public health. Finding that the condition could not be satisfactorily remedied otherwise, these persons made an agreement with the City of Charlotte in accordance with its charter provisions whereby they undertook to install an addition to the sewerage system of the city and connect the same with the outfall of the city sewerage plant, the addition thereupon to become the property of the city and to be operated by it as other such facilities, City Charter Public-Local Laws of 1939, Chapter 366, sec. 65.

In their efforts to carry out the project they negotiated with the defendants, M. Lee Heath and D. Morgan Heath, for the purchase of a right-of-way over certain intervening land partly within and partly without the city limits, which the Heaths were supposed to own. They were unable to purchase the right, although they were offered two lots upon which such a right-of-way might be constructed at the price of $1500.00 which they declined to pay.

Thereupon after a proper survey, they caused the sewerage line to run across other lots, including a portion of the area marked on the map as 'Space Reserved'--(which appears thereon to be dedicated as a street)--and a portion of another lot (No. 34 on the map) not owned by the defendants Heath but as to which they now claim an adverse interest because of certain restrictive provisions in the deeds constituting the chain of title thereto that the property should be used for residential purposes only.

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When the sewerage line had been partially completed the defendants Heath brought an injunction proceeding against the promoters, asserting the alleged restrictions as repugnant to the use intended and asking that the defendants therein be perpetually enjoined from interference therewith.

Upon a hearing of that matter before Hamilton, J., February 3, 1944, the restraining order was dissolved on the ground that the plaintiff had no interest in the lands, and the plaintiff in that proceeding took a nonsuit. The sewerage system was then completed and connected to the main sewerage system of the city, at least to the outfall thereof, within the 'Space Reserved.' Some time afterwards the defendants, M. Lee Heath and D. Morgan Heath, claiming to have purchased the area so designated,--'Space Reserved,'--for $100.00,--(as plaintiff contends with the knowledge of the foregoing facts)--brought an action of trespass against Cooper and others who had caused the sewerage line to be built as aforesaid, demanding a removal of the same. To this action the City of Charlotte, then operating the new line, was not made a party.

Shortly thereafter the City of Charlotte brought this proceeding against the defendants Heath and other defendants herein, not now appealing, asking to condemn a right-of-way for the sewer line already in operation, through the lands claimed by the Heaths and those in which they claimed adverse restrictive interests, for the purpose of serving those accessible to it, both within and without the city limits, with sewerage facilities.

The right-of-way sought lies partly within and partly without the city limits as designated on the accompanying map. The 'sanitary sewer' lines referred to are existing, in situ, and operating. Reference to the 'new' sewer line is the sewer along the right-of-way sought to be condemned. The proposed right-of-way does not encroach on lot 35 owned by the defendants Heath but does cross for a distance of 35.5' the 'Reserved Space' in which they claim an interest by purchase since the sewer was completed and in operation. The 12' sewer line crossing this 'Space Reserved' is part of the city system which has been in operation for many years. The appealing defendants claim an enforceable adverse interest in lot 34 by reason of the above mentioned restrictions in mesne conveyances that it shall be used only for residential purpose. The lot was originally owned by the Heaths and the restriction occurs in their deed.

The matter was once heard by the Clerk, appealed from him to the Superior Court of Mecklenburg, thence remanded to the Clerk for further hearing, with a favorable result to the plaintiff, and upon appeal again reached the Superior Court for final hearing. Upon such hearing by Olive, J., judgment was entered against the plaintiff, in which judgment the following occurs:

'The Court being of the opinion that upon all the evidence, and taking all the evidence as being true, the purpose for which the said defendant Heaths' property is sought to be condemned in this action is a private use and not a public use; the Court finding as a fact that the property is sought to be condemned for the private use and convenience of the owners of seventeen residences, all of which are located without the City of Charlotte.

'The Court finds as a matter of law, upon the facts found as aforesaid, that the plaintiff is without power and authority to condemn the property of the defendants, M. Lee Heath and D. Morgan Heath, in this action:'

The petition was denied and the action dismissed and the plaintiff taxed with the costs. From this judgment plaintiff appealed.

Where it is necessary to refer to statutes, case history, or evidence particularly bearing upon the decision and not above set out, such matter will be embodied in the opinion.

John D. Shaw, Goebel Porter, and Frank H. Kennedy, all of Charlotte, for appellant.

C. D. Taliaferro and J. M. Scarborough, both of Charlotte, for appellees.

SEAWELL Justice.

Preliminarily to the statement of the question, we observe that the choice of a route in a condemnation proceeding is primarily within the political discretion of the grantee of the power and will not be reviewed on the ground that another route may have been more appropriately chosen unless it appears that there has been an abuse of the discretion. Yadkin River Power Co. v. Wissler, 160 N.C. 269, 76 S.E. 267, 43 L.R.A., N.S., 483. Ann.Cas. 1914C, 268; Selma v. Nobles 183 N.C. 322, 325, 111 S.E. 543.

In the exercise of the right of eminent domain, private property can be taken only for a public purpose and upon just compensation. Long v. Rockingham, 187 N.C. 199, 121 S.E. 461; MacRae v. City of Fayetteville, 198 N.C. 51, 150 S.E. 810.

But in any proceeding for condemnation under the power of eminent domain, what is a public purpose, or, more properly speaking, a public use, is one for the Court. Deese v. Town of Lumberton, 211 N.C. 31, 188 S.E. 857; Yarborough v. North Carolina Park Commission, 196 N.C. 284, 145 S.E. 563; North Carolina State Highway Commission v. Young, 200 N.C. 603, 607, 158 S.E. 91; McQuillin, Municipal Corporations, s 1600, p. 517; 29 C.J.S., Eminent Domain, s 30, pp. 820, 821. Where the particular application of this principle requires an ascertainment of fact, whether by court or jury, when the facts are determined the issue no longer rests in fact but in law.

In the case at bar the facts essential to judicial determination are not disputed. The judge, taking the whole evidence to be true, absolved all parties from bad faith, but found as a fact and repeated as a conclusion of law that the condemnation was sought for a private purpose; for the sole benefit of a group of home owners, indefinitely described living outside the city limits. Either it is assumed that this group was not large enough to constitute a community, or to be credited with the necessity of a public use; or that the municipality was without power...