Colonial Pipeline Co. v. Neill

• Decision Date: 05 February 1979
• Docket Number: No. 128,128
• Citation: 296 N.C. 503,251 S.E.2d 457
• Parties: COLONIAL PIPELINE COMPANY v. Jeanette M. NEILL.
• Court: North Carolina Supreme Court

Page 457

251 S.E.2d 457

296 N.C. 503

COLONIAL PIPELINE COMPANY v. Jeanette M. NEILL.

No. 128.

Supreme Court of North Carolina.

Feb. 5, 1979.

Adams, Kleemeier, Hagan, Hannah & Fouts by Joseph W. Moss and Daniel W. Fouts, Greensboro and Horack, Talley, Pharr & Lowndes by Benjamin S. Horack and Robert C. Stephens, Charlotte for petitioner-appellee.

Brooks, Pierce, McLendon, Humphrey & Leonard by James T. Williams, Jr., and Reid L. Phillips, Greensboro, for respondent-appellant.

BRANCH, Justice.

The single question presented by this appeal is whether G.S. 62-190 confers the right of eminent domain on interstate pipeline companies such as Colonial.

It is well settled that the power of eminent domain is inherent in sovereignty. Morganton v. Hutton & Bourbonnais Co., 251 N.C. 531, 112 S.E.2d 111 (1960). The Legislature has the right to determine what portion of this sovereign power it will delegate to public or private corporations to be used for public benefit. State v. Club Properties, 275 N.C. 328, 167 S.E.2d 385 (1969); Morganton v. Hutton & Bourbonnais Co., supra. The right of eminent domain must be conferred by statute, expressly or by necessary implication, and such statute must be strictly construed. State v. Club Properties, supra. Our inquiry then is to determine whether the Legislature has evidenced an intent to confer the right of eminent domain upon interstate pipeline companies whose pipelines originate outside North Carolina.

Prior to 1937, our Legislature had not granted to pipeline companies the right of eminent domain. This power was conferred upon pipeline companies, however, by Chapter 280 of the Session Laws of 1937, codified as C.S. 3542(d) (now G.S. 62-190). The act was entitled "AN ACT TO AMEND CHAPTER SIXTY-SEVEN (Railroads and Other Carriers) OF THE CONSOLIDATED STATUTES OF NORTH CAROLINA OF ONE THOUSAND NINE HUNDRED AND NINETEEN, AS AMENDED, AND TO CONFER UPON PIPE LINE COMPANIES THE RIGHT OF EMINENT DOMAIN AND OTHER POWERS AND RIGHTS." (Emphasis added) and provided:

Any pipe line company transporting or conveying natural gas, gasoline, crude oil, or other fluid substances by pipe line for the public for compensation, and incorporated under the laws of the State of North Carolina, may exercise the right of eminent domain under the provisions of Chapter thirty-three of the Consolidated Statutes of North Carolina and acts amendatory thereof, and for the purpose of constructing and maintaining its pipe lines and other works shall have all the rights and powers given railroads and other corporations by Chapters thirty-two and sixty-seven of the Consolidated Statutes of North Carolina of one thousand nine hundred and nineteen and acts amendatory thereof, provided the pipe lines of such companies transporting or conveying natural gas, gasoline, crude oil, or other fluid substances shall originate within this State. Nothing herein shall prohibit any such pipe line company granted the right of eminent domain under the laws of this State from extending its pipe lines from within this State into another state for the purpose of transporting natural gas into this State, nor to prohibit any such pipe line company from conveying or transporting natural gas, gasoline, crude oil, or other fluid substances from within this State into another state. All such pipe lines companies shall be deemed public service companies and shall be subject to the laws of this State regulating such corporations.

Chapter 108 of the 1937 Session Laws amended C.S. 1706 (now G.S. 40-2) of the chapter Eminent Domain by adding the underscored words in the following portion of the statute:

§ 1706. By whom right may be exercised. The right of eminent domain may, under the provisions of this Chapter, be exercised for the purpose of constructing their roads, canals, Pipe lines originating in North Carolina for the transportation of petroleum products, lines of wires, or other works, which are authorized by law and which involve a public use or benefit, by the bodies politic, corporation, or persons following:

1. Railroads, street railroads, plankroad, tramroad, turnpike, canal, Pipe lines originating in North Carolina for the transportation of petroleum products, telegraph, telephone, electric power or lighting, public water supply, flume, or incorporated bridge companies.

These statutes overlap to a certain degree. The right of eminent domain was conferred upon pipeline companies by C.S. 3542(d), and the existence of that right was recognized in C.S. 1706. In both statutes the right was limited to pipelines originating in North Carolina. There are, however, distinctions between the two. The right of eminent domain conferred by C.S. 3542(d) is limited to pipeline companies "incorporated under the laws of the State of North Carolina," whereas no such limitation appears in C.S. 1706. On the other hand, C.S. 3542(d) contains a broader grant of rights and powers than does C.S. 1706. Both statutes allow pipeline companies to exercise the right of eminent domain under the provisions of the chapter, Eminent Domain. In addition, C.S. 3542(d) provides that a pipeline company "for the purpose of constructing and maintaining its pipelines and other works shall have all the rights and powers given railroads and other corporations by chapters thirty-two (Electric, Telegraph and Power Companies) and sixty-seven (Railroads and Other Carriers) of the Consolidated Statutes of North Carolina . . . ."

In 1943, C.S. 3542(d) was renumbered G.S. 60-146 and C.S. 1706, G.S. 40-2. With respect to petroleum pipelines, the provisions of G.S. 40-2 have remained unchanged.

Such has not been the case, however, with regard to G.S. 60-146. That statute was amended in 1951 to extend the right of eminent domain to "foreign corporations domesticated under the laws of North Carolina . . . . Although the right was extended to domesticated foreign corporations, it remained limited to pipelines originating in North Carolina. The most significant amendment, for purposes of this appeal, was enacted in 1963. Chapters 56 (Electric, Telegraph and Power Companies), 60 (Railroads and Other Carriers) and 62 (Utilities Commission) were amended, revised, recodified and rewritten as Chapter 62 (Public Utilities). G.S. 60-146 was renumbered G.S. 62-190 and amended, by omitting the language requiring the pipelines to originate in this State, to read in its present form:

§ 62-190. Right of eminent domain conferred upon pipeline companies; other rights. Any pipeline company transporting or conveying natural gas, gasoline, crude oil, coal in suspension, or other fluid substances by pipeline for the public for compensation, and incorporated under the laws of the State, or foreign corporations domesticated under the laws of North Carolina, may exercise the right of eminent domain under the provisions of the Chapter, Eminent Domain, and for the purpose of constructing and maintaining its pipelines and other works shall have all the rights and powers given railroads and other corporations by this Chapter and acts amendatory thereof. Nothing herein shall prohibit any such pipeline company granted the right of eminent domain under the laws of this State from extending its pipelines from within this State into another state for the purpose of transporting natural gas or coal in suspension into this State, nor to prohibit any such pipeline company from conveying or transporting natural gas, gasoline, crude oil, coal in suspension, or other fluid substances from within this State into another state. All such pipeline companies shall be deemed public utilities and shall be subject to regulation under the provisions of this Chapter.

The language of the statute appears to confer the right of eminent domain upon Any pipeline company incorporated or domesticated under the laws of North Carolina. The statute does not by its terms limit the right to companies whose pipelines originate in North Carolina.

Appellant contends, however, that the right of eminent domain conferred upon pipeline companies by G.S. 62-190 is limited by the substantive provisions contained in Chapter 40, Eminent Domain, due to the reference in G.S. 62-190 to that chapter. Appellant, therefore, argues that by virtue of G.S. 40-2, only those companies whose pipelines originate in North Carolina have...