Progress Energy v. Strickland

• Decision Date: 20 February 2007
• Docket Number: No. COA06-20.,COA06-20.
• Citation: 640 S.E.2d 856
• Court: North Carolina Court of Appeals
• Parties: PROGRESS ENERGY CAROLINAS, INC., Petitioner, v. William Howell STRICKLAND, Respondent.

640 S.E.2d 856

PROGRESS ENERGY CAROLINAS, INC., Petitioner, v. William Howell STRICKLAND, Respondent.

No. COA06-20.

Court of Appeals of North Carolina.

February 20, 2007.

Appeal by respondent from judgment entered 15 August 2005 by Judge William C. Gore, Jr. in Columbus County Superior Court. Heard in the Court of Appeals 13 November 2006.

Womble Carlyle Sandridge & Rice, PLLC, by Burley B. Mitchell, Jr., John C. Cooke, and Elizabeth T. Smith, and The Yarborough Law Firm, by Garris Neil Yarborough, Raleigh, for petitioner-appellee.

Vandeventer Black LLP, by David P. Ferrell, Raleigh, for respondent-appellant.

MARTIN, Chief Judge.

Petitioner sought to condemn an easement across respondent's property as part of a plan to build a 230 kilovolt power line across Columbus County, North Carolina, running from a point of delivery southeast of Chadbourn, North Carolina, to Nichols, South Carolina. After a hearing before the North Carolina Utilities Commission, petitioner received a certificate of environmental compatibility and public convenience and necessity. Subsequently, petitioner filed a petition for condemnation and appointment of commissioners with the Columbus County Clerk of Superior Court on 2 February 2005. Petitioner alleged, inter alia, that it has the right of eminent domain, that acquisition of an easement over respondent's property is necessary and in the public interest, and that the easement needs to allow petitioner to construct, operate, and maintain electric and communication facilities. Respondent answered the petition alleging that the proposed easement would condemn his burial ground, usual dwelling house and yard, kitchen, and garden in contravention of the eminent domain statutes. Respondent further alleged that the easement would obstruct and interfere with two airstrips located on his property.

On 7 June 2005, the matter was transferred to the Superior Court Division. After a hearing on 5 July 2005, the court granted the petition and made the following findings: no one is buried within the proposed easement area and the easement to be taken does not affect any burial ground as the property existed on 2 February 2005, the easement to be taken does not affect the kitchen and reasonable size garden of the respondent as the property existed on 2 February 2005, and the easement to be taken will affect in some way one or both of respondent's two airstrips. The court concluded that petitioner has the right to condemn the property and remanded the matter to the Clerk of Superior Court for the appointment of commissioners and for further proceedings through the normal condemnation process, which would include valuation of the rights being condemned.

Respondent filed a notice of appeal and made fifty-two assignments of error relating to three legal issues: whether petitioner has the authority to condemn by eminent domain any portion of respondent's garden for the purpose of erecting an electric transmission line, whether petitioner sufficiently described the easement to be condemned and has the legal right to condemn the rights described in the petition, and whether petitioner can exercise the power of eminent domain in light of North Carolina law prohibiting the obstruction of private airports and runways. In its reply brief, petitioner argues that the respondent's appeal is interlocutory and must be dismissed.

I. Right to Appellate Review

We first consider whether respondent's appeal in this case is an interlocutory appeal requiring dismissal. "A ruling is interlocutory `if it does not determine the issues but directs some further proceeding preliminary to final decree.'" Dep't of Transp. v. Rowe, 351 N.C. 172, 174, 521 S.E.2d 707, 708 (1999) (quoting Greene v. Charlotte Chem. Lab., Inc., 254 N.C. 680, 693, 120 S.E.2d 82, 91 (1961)), rev'd on other grounds, 353 N.C. 671, 549 S.E.2d 203 (2001). In the present case, the Superior Court determined the issue of whether to grant petitioner the right to condemn the easement but remanded the matter to the Clerk of Superior Court for the appointment of commissioners and for further condemnation proceedings; thus, the appeal is interlocutory.

"There is generally no right to appeal an interlocutory order." Gregory v. Penland, ___ N.C.App. ____, ____, 634 S.E.2d 625, 628 (2006). However, "a party may appeal an interlocutory order that `affects some substantial right claimed by the appellant and will work an injury to him if not corrected before an appeal from the final judgment.'" Rowe, 351 N.C. at 175, 521 S.E.2d at 709 (quoting Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950)). The Supreme Court recognized in N.C. State Highway Comm'n v. Nuckles, 271 N.C. 1, 155 S.E.2d 772 (1967) that "orders from a condemnation hearing concerning title and area taken are `vital preliminary issues' that must be immediately appealed pursuant to N.C.G.S. § 1-277, which permits interlocutory appeals of determinations affecting substantial rights." Rowe, 351 N.C. at 176, 521 S.E.2d at 709; see also Nuckles, 271 N.C. at 14, 155 S.E.2d at 784; N.C. Dep't of Transp. v. Stagecoach Village, 360 N.C. 46, 48, 619 S.E.2d 495, 496 (2005).

The Supreme Court defined the concept of vital preliminary issues in two eminent domain cases, Nuckles and Rowe. The issue before the Court in Nuckles was which tracts the State Highway Commission was taking by eminent domain. When considering whether this was a vital preliminary issue, the Court noted:

Obviously, it would be an exercise in futility . . . to have the jury assess damages to tracts 1, 2, 3, and 4 if plaintiff were condemning only tracts A and B, and the verdict would be set aside on appeal for errors committed by the judge in determining the "issues other than damages."

Nuckles, 271 N.C. at 14, 155 S.E.2d at 784. By contrast, in Rowe the landowners appealed the issue of the unification of four of their tracts through condemnation. The Court noted: "Defendants contest only the unification of the four remaining tracts, not what parcel of land is being taken or to whom that land belongs. Thus, we hold that the trial court's interlocutory order does not affect any substantial right of these defendants." Rowe, 351 N.C. at 176, 521 S.E.2d at 709. The Court went on to limit the Nuckles holding to "questions of title and area taken." Id.

Applying this vital preliminary issue analysis to the case before us, the order is immediately appealable if it decided questions of title or area taken. The order in this case decided whether petitioner had the right to condemn the area of land described in the proposed easement, considering the proximity of respondent's garden and airstrips to the affected land. These are questions of area taken. Here, as in Nuckles, it would be futile for a jury to assess damages to respondent when the easement taken could be set aside because it unlawfully takes a garden or obstructs an airport. Since the order decided vital preliminary issues concerning the area to be condemned, the interlocutory order is appealable pursuant to N.C.G.S. § 1-277.

II. Respondent's First Issue: The Garden

We next consider whether the court erred in finding that respondent's reasonable size garden was not affected by the easement and whether the law allows petitioner to condemn the proposed easement for an electric transmission line. The court found: "The easement to be taken by condemnation over Respondent's property does not affect the kitchen and reasonable size garden of the Respondent as said property existed on the date the Petition was filed, February 2, 2005." Respondent argues that the evidence does not support the court's finding and that the finding does not support the court's conclusion that "Petitioner has the right to condemn the property in the manner noted in the Findings of Fact." As a preliminary matter, we note that, in this particular case, respondent bore the burden of proving that the court should not grant the petition, according to N.C.G.S. § 40A-25. Section 40A-25 applies to eminent domain proceedings by private condemnors, and it states:

On presenting such petition to the clerk of superior court, . . . all or any of the persons whose estates or interests are to be affected by the proceedings may answer such petition and show cause against granting the prayer of the same. The clerk shall hear the proofs and allegations of the parties, and if no sufficient cause is shown against granting the prayer of the petition, shall make an order for the appointment of three commissioners . . . .

N.C. Gen.Stat. § 40A-25 (2005) (emphasis added). Petitioner Progress Energy Carolinas, Inc. is a private condemnor as described in N.C.G.S. § 40A-3(a), which includes corporations, bodies politic, or persons whose purpose is to construct power lines and other facilities related to power generation and distribution. N.C. Gen.Stat. § 40A-3(a)(1) (2005).

The statutory authority found in § 40A-25 is distinguishable from cases cited by both respondent and the dissent in support of their assertion that petitioner bears the burden of proof. See Redevelopment Comm'n of City of Washington v. Grimes, 277 N.C. 634, 643-44, 178 S.E.2d 345, 350-51 (1971); City of Charlotte v. McNeely, 8 N.C.App. 649, 653, 175 S.E.2d 348, 351 (1970). Both Grimes and McNeely involved public condemnors, who are not governed by § 40A-25. See N.C. Gen.Stat. § 40A-3(b)-(c) (2005) (defining public condemnors); N.C. Gen.Stat. § 40A-19 (2005) (limiting the application of § 40A-25 to "[a]ny private condemnor enumerated in G.S. 40A-3(a)"). Furthermore, both Grimes and McNeely cite to Chapter 40 of our General Statutes, which was repealed in 1981. 1981 N.C. Sess. Laws ch. 919, § 1. Public condemnation proceedings are governed by what is now Article 3 of Chapter 40A, while private condemnation proceedings are governed by Article 2 of Chapter 40A.

Having established the proper burden of proof, we consider the merit of respondent's...