City of Wilmington By and Through Water Dept. v. Lord

• Decision Date: 28 May 1975
• Citation: 340 A.2d 182
• Parties: The CITY OF WILMINGTON, By and Through the WATER DEPARTMENT, Plaintiff, v. Edwin C. E. LORD, Jr., et al., Defendants.
• Court: Delaware Superior Court

Page 182

340 A.2d 182

The CITY OF WILMINGTON, By and Through the WATER DEPARTMENT, Plaintiff, v. Edwin C. E. LORD, Jr., et al., Defendants.

Superior Court of Delaware, New Castle County.

May 28, 1975.

Frederick H. Altergott, Robert Goldberg, Wilmington, for plaintiff.

William Poole, Robert K. Payson, David A. Anderson, Potter, Anderson & Corroon, Wilmington, for certain defendants.

OPINION

O'HARA, Judge.

This is a condemnation action brought by the City of Wilmington in an effort to acquire a site on the Greenhill Golf Course for the construction of a 500,000 gallon elevated water tank. The question before the Court is whether the City of Wilmington acting through its water department may, as a home rule city, condemn certain rights in parkland now held in trust. This Court has previously ruled that a municipality may not exercise the power of eminent domain over property already devoted to a public use unless the legislature has authorized the acquisition either expressly or by necessary implication. City of Wilmington, Water Department v. Lord, Del.Super., 332 A.2d 407 (1975). That decision was mandated by the need to construe strictly grants by the sovereign of the eminent domain power. In the course of that opinion, the Court raised several questions regarding the effect of Wilmington's home rule charter on its right to exercise eminent domain power. That issue has been briefed and is now decided by the Court.

Pursuant to the power granted by 22 Del.C. § 802, the City of Wilmington adopted a home rule charter which became effective July 1, 1965. Section 1--101 of the charter provides:

'the city shall have and exercise all express and implied powers and authority of local self-government and home rule, which, under the Delaware Constitution, it would be competent for the general assembly to grant the city by specific enumeration and which are not denied by general statute and the city shall have complete powers of legislation and administration in relation to municipal functions . . ..'

As a result of this new distribution of power the City became a sovereign power as far as local self-government was concerned. City of Youngstown v. Park and Recreation Com'n., 68 Ohio App. 104, 39 N.E.2d 214 (1939). The home rule charter accepts the grant of municipal sovereignty and like the state constitution is read as a limitation on the governmental unit's powers, not as a grant of specific powers. West Coast Advertising Co. v. City and County, Etc., 14 Cal.2d 516, 95 P.2d 138 (1939). Compare Paul Scotton Con. Co., Inc. v. Mayor & Coun. of Dover, Del.Ch., 301 A.2d 321 (1972, aff'd 314 A.2d 182 (1973). Thus, as a home rule city, Wilmington is to be considered the sovereign for the purposes of municipal functions. The General Assembly's authority to deny Wilmington powers through general statutes is not inconsistent with Wilmington's status as a sovereign any more than the federal legislature's power to restrain action by Delaware is inconsistent with the State's status as a sovereign.

As a sovereign Wilmington has the power to take public property by eminent domain for its own sovereign purposes. 1 Nichols on Eminent Domain, § 2.2. Piekarski v. Smith, 38 Del.Ch. 594, 153 A.2d 587 (1959) is not to the contrary. Piekarski involved the taking of public parkland by the State Highway Department. Although the Court noted the existence of an explicit statutory grant to the Highway Department authorizing it to condemn property already devoted to a public use it did not reach the question of whether the Department could take such property without specific legislative authorization. Moreover, the action there was by an agency of the sovereign rather than the sovereign itself.

As a sovereign Wilmington can condemn the public rights in its own parkland in order to construct the water tower. However, this condemnation action has been brought by and through the City's water department. The Court must decide whether the water department must have specific authority to condemn public parkland.

The case law relevant to this issue deals with an analogous problem, whether a state highway department needs specific authority in order to condemn public property. The cases are not in accord. They agree with the general rule that the sovereign may take public property for its own sovereign uses but that an agency of the sovereign to whom eminent domain has been delegated may only take public property if the legislature has manifested its consent to the taking of such property in express terms or by necessary implication. See e.g. State v. Ouachita Parish School Board, 242 La. 682, 138 So.2d 109, cert. denied 370 U.S. 916, 82 S.Ct. 1553, 8 L.Ed.2d 497 (1962); State v. Hoester, Mo.Supr., 362 S.W.2d 519 (1962). The difference in the cases involves the application of the rule. Thus, Ouachita held that the state highway department, as an agency of the state to which eminent domain power has been delegated, could not condemn public property without specific authority. Conversely, Hoester held that because the highways built by the highway commission were provided for the use and benefit of all the state's citizens, the highway department was acting for the state in condemning the right of way and, therefore, the taking was by the sovereign. See also Riley v. South Carolina State Highway Department, 238 S.C. 19, 118 S.E.2d 809 (1961) where the highway department was found to be, in essence, the sovereign for the purposes of taking land devoted to a public purpose.

The Court recognizes the strong and important policy of honoring valid restrictions placed on land given the...