Vance County v. Royster, 448
| Decision Date | 24 July 1967 |
| Docket Number | No. 448,448 |
| Citation | 271 N.C. 53,155 S.E.2d 790 |
| Parties | VANCE COUNTY, Plaintiff, v. Thomas S. ROYSTER and wife, Caroline H. Royster, Defendants. |
| Court | North Carolina Supreme Court |
Sterling G. Gilliam, Henderson, for petitioner appellant.
Broughton & Broughton, Raleigh, for respondent appellees.
The motion of the petitioner for permission to withdraw its appeal is allowed.
Upon the appeal of the respondents, the ultimate question for decision is not whether it would be beneficial to the economy of Vance County and the City of Henderson for an airport to be constructed at the proposed site. The question is whether the respondents' property can be taken from them, without their consent, for the purpose of constructing an airport as proposed by the county. It is not a light thing to take property from the owners against their will, even though they be paid therefor the full value of it in money. Such taking can be accomplished only through the exercise of the sovereign power of the State through lawful procedures for a public use which the taker is authorized by the sovereign to make of the property.
Private property can be taken by exercise of the power of eminent domain only where the taking is for a public use. State Highway Commission v. Batts, 265 N.C. 346, 144 S.E.2d 126; City of Charlotte v. Heath, 226 N.C. 750, 40 S.E.2d 600, 169 A.L.R. 569. As we have said in State Highway Commission v. Thornton, N.C., 156 S.E.2d 248, whether a proposed use of property is a 'public use,' such as will justify the taking of property without the consent of the owner, is a judicial question and is to be determined by considering whether the public will use the property, not by considering the benefits to the economy from a proposed private use of it.
If the taking is for a 'public use,' the economic feasibility of the proposed use is for the legislative or administrative body to determine. With that determination the courts may not interfere, except upon a clear showing of abuse of discretion such as to make the taking of the property an arbitrary and capricious interference with the right of the owner thereto. Yarborough v. Park Commission, 196 N.C. 284, 145 S.E. 563; Jeffress v. Greenville, 154 N.C. 490, 70 S.E. 919; 29 A C.J.S., Eminent Domain, § 89(2). Thus, in the absence of a showing of bad faith, which is not suggested in the present case, the courts will not interfere with the legislative or administrative determination that the taking of the particular property is necessary for the successful operation of the proposed project or prevent the taking on the ground that another site would be better, cheaper or otherwise preferable. 29A C.J.S. Eminent Domain § 90.
Nearly forty years ago, when flight scross the ocean was still a marvel and commercial air travel and transportation were in their infancy, the Legislature of this State authorized cities and counties jointly to acquire, construct and operate airports and to exercise the power of eminent domain to acquire land for that purpose. G.S. §§ 63--4, 63--5. The procedure followed in the present case is that prescribed by the statute. It is clearly established by the decisions of this Court that the acquisition of land for, and the construction and operation of, an airport for use by the public is a purpose for which a city or a county or both may appropriate and expend public funds and for which it or they may acquire land by the exercise of the power of eminent domain. Greenboro-High Point Airport Authority v. Johnson, 226 N.C. 1, 36 S.E.2d 803; Turner v. City of Reidsville, 224 N.C. 42, 29 S.E.2d 211.
In a taking of land for the construction of an airport, as in the case of a taking for the construction of a road, if the taking is, in reality, for the purpose of making the property available for use by the public, it is immaterial that, in the immediate future, only a small segment of the public will be likely to make actual use of it. See: Charlotte v. Heath, supra; Cozard v. Hardwood Co., 139 N.C. 283, 51 S.E. 932, 1 L.R.A.,N.S., 969. In Turner v. City of Reidsville, supra, the argument, similar to one of the contentions of the respondents here, was made that land could not be acquired by eminent domain for construction of an airport because 'no public airline now makes Reidsville a stopping place for air traffic, nor are there definite assurances for the future, or apparent demand for facilities for public or private aircraft service,' and so, it was argued, an airport for Reidsville was neither needed in the public interest nor prospectively advantageous to the citizens or industries, and its construction and maintenance would be a waste of public funds. This Court did not find that argument persuasive then and we do not find it so now, since the wisdom of the proposed construction and operation is not for us to determine or consider. The small number of privately owned airplanes, presently kept in Vance County at private landing strips, and the absence of commitments from commercial airlines to use the proposed airport do not determine the nature of the use to be made of the proposed facility. There is nothing in the record to suggest that it will not be available for use by any airplane, whether owned by a resident of Vance County or otherwise, desiring to land upon it, nor is there anything in the record to support a finding that if it is constructed it will not be used eventually by others than those who now own airplanes regularly kept in Vance County. Thus, the present record does not present a situation comparable to that found in State Highway Commission v. Batts, supra.
We, therefore, conclude that the city and county propose to construct and operate the airport for public use. The proposed taking of the land of the respondents so as to provide for airplanes an approach to the runway of the airport free from trees and structures of considerable height is reasonably incidental to the construction of such an airport. Consequently, the proposed taking of this property is for a public use and is within the authority of the petitioner, unless the proposed construction and operation is otherwise beyond the authority of the petitioner.
For the petitioner to take the land of the respondents, without their consent, for a use incidental to a proposed airport, which airport the petitioner may not lawfully construct and operate, would be a vain and utterly useless deprivation of the respondents' rights in their property. Such an arbitrary, capricious taking of their land would be a violation of Article I, § 17 of the Constitution of this State. The land of a person may not be taken, without his consent, when the purpose, which would otherwise authorize the taking, cannot be accomplished as a matter of law.
It is clear upon the record before us that the proposed taking of the land of the respondents is to provide a safe approach to an airport which is to be constructed pursuant to the lease of the land for the airport proper, the 'grant agreement' and the 'project application,' and not otherwise. If the petitioner does not have authority under the law to construct and operate the contemplated airport pursuant to the provisions of these documents, the taking of the land of the respondents so as to provide a safe approach to such airport is beyond the authority of the petitioner. We therefore, turn to the examination of the petitioner's undertaking in these documents and to the consideration of the authority of the petitioner to enter into such undertaking.
The lease expressly provides that the obligations therein undertaken are the joint obligations of the county, the city, and the Airport Authority. Thus, in the lease the county binds itself to pay rent throughout the 25 year term of the lease. The provision that the lease may be terminated earlier by the three joint lessees does not provide the county alone with a means of escape from this obligation if its joint obligors do not concur in its desire to terminate the lease. The full credit of the county is pledged for the payment of the agreed rent.
The 'grant agreement' contains an undertaking by the county and by the...
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