State v. Core Banks Club Properties, Inc.

• Decision Date: 19 May 1969
• Docket Number: No. 19,19
• Citation: 275 N.C. 328,167 S.E.2d 385
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. CORE BANKS CLUB PROPERTIES, INC.

Page 385

167 S.E.2d 385

275 N.C. 328

STATE of North Carolina v. CORE BANKS CLUB PROPERTIES, INC.

No. 19.

Supreme Court of North Carolina.

May 19, 1969.

Robert Morgan, Atty. Gen., Parks H. Icenhour, Asst. Atty. Gen., Rafford E. Jones, Raleigh, Real Property Attorney, for the State.

McLendon, Brim, Brooks, Pierce & Daniels, by Hubert Humphrey, Greensboro, for defendant appellee.

SHARP, Judge.

Defendant demurs to the complaint upon the following grounds: (1) It discloses no statutory authority for the State to condemn its property for the purpose alleged--a federally owned park; (2) it reveals that the condemnation is not for a State public use; and (3) it fails to allege compliance with statutory requirements, which are conditions precedent to the institution of this action.

We postpone at the outset the basic question whether the law now authorizes the condemnation in suit and advert to defendant's third ground for demurrer, I.e., that plaintiff has not alleged compliance with statutory procedural requirements. Such allegations are a prerequisite in any action to condemn land. Redevelopment Commission v. Hagins, 258 N.C. 220, 128 S.E.2d 391.

G.S. § 146--22 through G.S. § 146--36, the authority under which plaintiff alleges its right to condemn the land in suit, provides that All acquisitions of land by the State or any State agency shall be made by the Department of Administration (Department) and approved by the Governor and Council of State. Before Department can acquire land by purchase or condemnation the following steps must be taken: (1) The agency must file with Department an application setting forth its need for the requested acquisition. (2) Department must 'investigate all aspects of the requested acquisition' (including the availability of the necessary funds) as detailed in G.S. § 146--23. (3) After investigation, Department must determine that the best interests of the State require that the land be acquired. (4) Department must then negotiate with the owners for the purchase. If terms are agreed upon and the Governor and Council of State approve them, Department buys the land. (5) If negotiations are unsuccessful and the Governor and Council of State give permission, Department institutes condemnation proceedings as provided in G.S. § 146--24 and G.S. § 136--103.

G.S. § 136--103 requires, Inter alia, that the complaint shall contain 'a statement of the authority under which and the public use for which said land is taken.'

Defendant concedes that plaintiff has alleged the performance of conditions (4) and (5) as enumerated above. It contends, however, that the performance of conditions (1), (2), and (3) are not alleged; that the requirement of G.S. § 136--103 that the complaint contain a statement of the authority under which the land is taken was omitted; and that these omissions render the complaint fatally defective and require the dismissal of the action.

Plaintiff's contention is that allegation of these statutory requirements is not necessary since the State itself--not one of its agencies--seeks to obtain title to unique property for a Federal park. Notwithstanding, the stark allegations of the complaint are unsatisfactory and incomplete. Nevertheless, we pass defendant's contention that the failure to allege compliance with statutory procedural requirements is fatal and consider these questions: (1) Does G.S. § 146--22 et seq., the 'authority' under which plaintiff states it brings this action, authorize the condemnation? (2) If not, does any authority empower plaintiff to condemn the land for the purpose alleged? We deem this course to be in the public interest.

The complaint alleges no federal law authorizing a 'National Seashore' in Carteret County. Although the purpose of such a seashore is stated in general terms, the complaint alone would leave us to deduce from the location of the land that plans for a National Park are in the offing. Plaintiff-appellant's brief confirms this deduction and directs our attention to the following acts of the Legislature and the Congress.

(1) A Joint Resolution Endorsing The Cape Lookout National Seashore Project. Resolution 66, S.L.1965. This resolution states in part:

'WHEREAS, the President of the United States has proposed the establishment of the Cape Lookout National Seashore on the coast of North Carolina; and

'WHEREAS, the State of North Carolina has offered the Federal Government suitable land for the establishment of this facility; and

'* * * 'WHEREAS, the history of Cape Hatteras National Seashore Recreational Area has proved the immeasurable esthetic, economic, and recreational value of such an asset within North Carolina; and

'WHEREAS, the increase in both population and leisure time in the United States add each day to the importance of outdoor areas for public use:

Now, therefore, be it resolved by the Senate, the House of Representatives concurring:

'Section 1. That the General Assembly does hereby endorse the Cape Lookout National Seashore project and encourage the Governor and all affected agencies of State Government to encourage and assist the project to the end that its establishment may be assured at the earliest possible date.

'* * *'

(2) 16 U.S.C.A. § 459 (1960). By this enactment, approved 10 March 1966, the Congress of the United States authorized the establishment of the Cape Lookout National Seashore (Seashore) 'in order to preserve for public use and enjoyment' the Outer Banks of Carteret County, N.C., between Ocracoke Inlet and Beaufort Inlet. In brief summary, pertinent provisions of the Act are (enumeration ours):

(a) Non-federal land within the seashore, except Shackleford Banks and a very small area on Lookout Bight, adjoining Cape Lookout Lighthouse, may be acquired by the Secretary of the Interior Only through donation. (The boundaries of the proposed Seashore are shown on map VS--CL--T101B on file in the office of the National Park Service, Department of Interior.)

(b) When title to the lands, acquired under the preceding section, has been vested in the United States, the Secretary of the Interior shall declare the establishment of the Seashore and define its boundaries. Following such establishment, and subject to the limitations and conditions of the Act, the Secretary may acquire the remainder of the lands within the Seashore.

(c) The Secretary may exchange federally owned property in North Carolina for nonfederal property within the Seashore and may equalize the values by paying or receiving cash.

(d) A sum not to exceed $3,200,000 is 'authorized to be appropriated' for the acquisition and development of the Seashore in accordance with the purposes of this Act.

(Other sections of the Act provide for state and federal control of hunting and fishing, shore erosion control, and general administration by the Secretary of Interior.)

Plaintiff does not rely upon specific legislative authority to condemn property for the Seashore. Its thesis seems to be: (1) The State, not one of its political subdivisions or administrative agencies, here seeks to exercise its own sovereign right to condemn. (2) Under G.S. § 146--22 the Department is the agency designated to exercise the State's power of eminent domain. (3) This designation not only authorizes the Department to institute condemnation proceedings in the name of the State, but empowers it to declare a necessary public use. In other words, plaintiff contends that it has the discretion and the power to condemn land for a federal park without specific legislative authorization. This contention is insupportable.

The right to take private property for public use, the power of eminent domain, is one of the prerogatives of a sovereign state. The right is inherent in sovereignty; it is not conferred by constitutions. Its exercise, however, is limited by the constitutional requirements of due process and payment of just compensation for property condemned. Redevelopment Commission v. Hagins, Supra; Morganton v. Hutton & Bourbonnais Co., 251 N.C. 531, 112 S.E.2d 111; 3 N.C. Index 2d, Eminent Domain §§ 1, 4 (1967); 29A C.J.S. Eminent Domain § 3 (1965).

In Hedrick v. Graham, 245 N.C. 249, 256, 96 S.E.2d 129, 134, and Lloyd v. Venable, 168 N.C. 531, 533, 84 S.E. 855, 856, this Court noted and acknowledged this universally accepted principle: Under our division of governmental power into three branches--executive, legislative, and judicial--only the legislative can authorize the exercise of the power of eminent domain and prescribe the manner of its use. The right of eminent domain lies dormant in the State until the legislature, by statute, confers the power and points out the occasion, mode, conditions and agencies for its exercise. Accord, Society of the New York Hospital v. Johnson, 5 N.Y.2d 102, 180, N.Y.S.2d 287, 154 N.E.2d 550 (1958); Oregon State Highway Commission v. Stumbo, 222 Or. 62, 352 P.2d 478, 2 A.L.R.3d 1028, 1032 (1960); 29A C.J.S. Eminent Domain § 2 (1965); Annot., 22 L.R.A. (NS) 1, 11--22 (1909); See also Annot., 79 A.L.R. 515 (1932).

In Hedrick v. Graham, Supra, Parker, J., (now C.J.), cited with approval 18 Am.Jur. Eminent Domain § 9 (1938), which contains the following statement: 'The executive branch of the government cannot, without the authority of some statute, proceed to condemn property for its own uses * * *. Once authority is given to exercise the power of eminent domain, the matter ceases to be wholly legislative. The executive authorities may then decide whether the power will be invoked and to what extent, and the judiciary must decide whether the statute authorizing the taking violates any constitutional rights; and the fixing of the compensation is wholly a judicial question.' Accord, 26 Am.Jur.2d Eminent Domain § 5 (1966).

Plaintiff argues that G.S. § 146--22 et seq. and G.S. § 143--341(4)(d) give Department (with the approval of the Governor and Council of State) carte blanche to condemn property. The...