Town of Morganton v. Hutton & Bourbonnais Co.

• Decision Date: 14 January 1960
• Docket Number: No. 305,305
• Citation: 112 S.E.2d 111,251 N.C. 531
• Court: North Carolina Supreme Court
• Parties: TOWN OF MORGANTON, v. HUTTON & BOURBONNAIS COMPANY, Inc., G. Norman Hutton and wife, Opal B. Hutton, Ralph W. Hutton and wife, Charlotte W. Hutton, Mrs. Doris Councill, a widow, A. B. Hutton, Jr. and wife, Marie Hutton, and Donald Hutton and wife, Eve Ballard Hutton.

Page 111

112 S.E.2d 111

251 N.C. 531

TOWN OF MORGANTON, v. HUTTON & BOURBONNAIS COMPANY, Inc., G. Norman Hutton and wife, Opal B. Hutton, Ralph W. Hutton and wife, Charlotte W Hutton, Mrs. Doris Councill, a widow, A. B. Hutton, Jr. and wife, Marie Hutton, and Donald Hutton and wife, Eve Ballard Hutton.

No. 305

Supreme Court of North Carolina.

Jan. 14, 1960

Womble, Carlyle, Sandridge & Rice, Winston-Salem, H. L. Riddle, Jr., Sam J. Ervin, III, Livingston Vernon, and John H. McMurray, Morganton, for plaintiff appellee.

Patrick, Harper & Dixon, Hickory, for defendant appellants Hutton & Bourbonnais Company, Inc., G. Norman Hutton and wife, Opal B. Hutton, and Ralph W. Hutton and wife, Charlotte W. Hutton.

Marshall V. Yount, Hickory, for defendant appellants Mrs. Doris Councill, A. B. Hutton, Jr. and wife, Marie Hutton.

RODMAN, Justice.

The first question presented by the assignments of error is: What estate did plaintiff acquire by the condemnation proceeding? Was it, as plaintiff contends, an unqualified estate in fee simple, or was it as defendants contend, an easement leaving the fee in defendants in the condemnation proceeding with the right to harvest the timber grown thereon?

The answer is to be found by determining the extent of the power which plaintiff had to take and the extent to which such power was exercised.

The power of eminent domain, that is, the right to take private property for public use, is inherent in sovereignty. Our Constitution, art. I, sec. 17, requires payment of fair compensation for the property so taken. This is the only limitation imposed on sovereignty with respect to taking.

The taking must, of course, be for a public purpose, but the sovereign determines the nature and extent of the property required for that purpose. It may take for a limited period of time or in perpetuity. It may take an easement, a mere limited use, leaving the owner with the right to use in any manner he may desire so long as such use does not interfere with the use by the sovereign for the purpose for which it takes, or it may take an absolute, unqualified fee, terminating all of defendant's property rights in the land taken. Raleigh & G. R. Co. v. Davis, 19 N.C. 451; Torrence v. City of Charlotte, 163 N.C. 562, 80 S.E. 53; Yarborough v. North Carolina Park Commission, 196 N.C. 284, 145 S.E. 563; Brooklyn Park Commissioners v. Armstrong, 45 N.Y. 234, 6 Am. Rep. 70; Sanitary Dist. of Chicago v. Manasse, 380 I11. 27, 42 N.E.2d 543; City of Newton v. Perry, 163 Mass. 319, 39 N.E. 1032; Chesapeake & Ohio Canal Co. v. Great Falls Power Co., 143 Va. 697, 129 S.E. 731; Newton v. City of Newton, 183 Mass. 226, 74 N.E. 346; Wright v. Walcott, 238 Mass. 432, 131 N.E. 291, 18 A.L.R. 1242; Carroll v. City of Newark, 108 N.J.L. 323, 158 A. 458, 459, 79 A.L.R. 509; Greenwood County v. Watkins, 196 S.C. 51, 12 S.E.2d 545; Eldridge v. City of Binghamton, 120 N.Y. 309, 24 N.E. 462; Ramsey v. Leeper, 168 Okl. 43, 31 P.2d 853, 853; McConihay v. Wright, 121 U.S. 201, 7 S.Ct. 940, 30 L.Ed. 932; 18 Am.Jur. 740.

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. Virginia & C. S. R. Co. v. Seaboard Air Line R. Co., 165 N.C. 425, 81 S.E.617; Clifton v. Duplin Highway Comm., 183 N.C. 211, 111 S.E. 176.

Plaintiff, a municipal corporation, is invested with such sovereign power as has been delegated to it by its charter, c. 104, Private Laws 1913, or by general statute applicable to all municipalities. Sec. 3 of art. 10 of plaintiff's charter authorizes it to acquire and hold 'rights of way, water rights, sewerage outlets, and other property' for the purpose of maintaining and furnishing a pure and adequate water supply.

Apparently no statute of general application authorizing the condemnation of land for the storing of water existed prior to 1903. By c. 159, P.L.1903, the Legislature authorized water companies to 'acquire by condemnation such lands and rights in land and water as are necessary for the successful operation and protection of their plants.' This Act was codified as Rev. 3060. The Act was amended by c. 62, P.L.1911, to include municipalities and as amended was codified as C.S. 7119. It is now G.S. § 130-162.

The Municipal Corporation Act of 1917 expressly authorized any municipality to own and operate a water system. G.S. § 160-255. To accomplish that and other authorized purposes it granted authority to municipalities to purchase 'any land, right of way, water right, privilege, or easement, either within or outside the city' as the municipality deemed necessary. G.S. § 160-204. It further provided that if the municipality was unable to agree with the owners 'for the purchase of such land, right of way, privilege, or easement,' it might acquire by codemnation. G.S. § 160-205.

The Legislature, in each of the statutes authorizing the town to acquire by purchase or condemnation, granted it the right to take and hold either the land or rights in land or easement, as it might deem necessary for the development of the project. Clearly, as here used, the words do not have the identical meaning. The word 'land' manifestly had a larger significance than the words 'easement' or 'interest therein.' Each word used is presumably used for a purpose, and in ascertaining the meaning of the statutes we are properly required to give significance to each word which the Legislature has used.

Appellants urge in support of their assertion that only an easement could be acquired because the condemnation statute which prescribes the procedure, C.S. § 1723 (now G.S. § 40-19) so declares. That section dealing with procedure provides in part, upon payment of the compensation fixed 'all persons who have been made parties to the proceedings shall be divested and barred of all right, estate and interest in such easement in such real estate during the corporate existence of the corporation aforesaid.' This phrase first appeared in the Revisal of 1905. The manner of acquiring by eminent domain was placed by the codifiers of the Revisal in the chapter on railroads. This Court had, prior to 1905, repeatedly held that railroads acquired not a fee but a mere easement since that was all that was needed for that purpose. Hodges v. Western Union Tel. Co., 133 N.C. 225, 45 S.E. 572; Shields v. Norfolk & C. R. Co., 129 N.C. 1, 39 S.E. 582; Railroad Co. v. Sturgeon, 120 N.C. 225, 26 S.E. 779; Atlantic Coast Line R. Co. v. Bunting, 168 N.C. 579, 84 S.E. 1009.

The Legislature did not, we think, intend, by referring to the procedure to be used in acquiring by condemnation, to restrict the power of acquiring in fee when necessary for the enumerated purposes. The reference was merely for procedural purposes. Greenwood County v. Watkins, supra; Sanitary Dist. of Chicago v. Manasse, supra.

Concluding as we do that the town had the power to acquire all of the estate and interest of defendants by condemnation, we must ascertain what estate and interest plaintiff sought and was granted. Notwithstanding its power to take all, it was not required to do so.

The proceeding to condemn was begun in August 1922 against the corporate defendant. The petition alleged the town was operating a water system for the benefit of its inhabitants, that its source of supply was not sufficient for its needs, and that it was necessary to acquire an additional supply, 'and to that end to acquire the lands of the defendant hereinafter mentioned and described in order to protect from contamination the water which your petitioner is preparing to bring from the Upper South Fork River in the South Mountains to the Town * * *' Section 3 of the petition alleges 'That the lands of defendant which your petitioner desires to acquire contain 2131.59 acres, and are described as follows:' Then follows a detailed description of the land. Section 5 alleges petitioner had sought 'to purchase the lands of defendant hereinbefore described,' 'that the defendant has refused to sell said land to plaintiff for a reasonable price, and has refused to name a price for said lands * * *' Everywhere in the petition the property to be taken is referred to as land, not an easement or an interest in the land. The defendant answered and asserted that it was not necessary 'to take defendants' land or so large a portion of it for such supply * * *' The answer repeatedly refers to 'the land sought to be condemned.' It denies that 'all of said boundary of land sought to be condemned is 'unfit for agricultural purposes."' It avers that the land possesses 'very great value' and asks 'if its property is to be taken for the use of the petitioner that it be paid a reasonable and fair value for the same, all elements of damage considered.' The individuals who were cotenants with the corporation were made parties defendant and adopted the company's answer. The town took possession in 1922; the defendants sought to remove to the Federal courts; the right to remove was denied and this denial was affirmed by this Court at the Spring Term 1924. Morganton v. Hutton & Bourbonnais Co., 187 N.C. 736, 122 S.E.842.

Commissioners were appointed by the clerk to appraise. The land sought to be condemned was part of a larger tract owned by defendants. The Commissioners reported: 'we visited the premises and land in controversy, and after taking into full consideration the quality and quantity of the land aforesaid, the timber and mineral interests on said land and all other inconconveniences likely to result to the owner, we have estimated and do assess the damages aforesaid at the sum of $25,800.00.' (Emphasis added here and above.)

The report followed the form prescribed by the statute, C.S. § 1722 (G.S. § 40-18) but carried the superadded declaration that the sum to be paid included the timber and minerals on the land. Defendants in due time filed exceptions to the report. The exceptions are based on the...