Western Carolina Power Co. v. Moses

• Decision Date: 12 May 1926
• Docket Number: 491.
• Parties: WESTERN CAROLINA POWER CO. v. MOSES et al.
• Court: North Carolina Supreme Court

133 S.E. 5

191 N.C. 744

WESTERN CAROLINA POWER CO. v. MOSES et al.

No. 491.

Supreme Court of North Carolina

May 12, 1926

Appeal from Superior Court, Burke County; Wright, Special Judge.

Condemnation proceeding before the clerk of the superior court by the Western Carolina Power Company against Jane Moses and others. Defendants' motion to dismiss the proceeding after transfer to the civil docket was allowed, and plaintiff appeals. Reversed.

Clerk's ruling on allegation in eminent domain proceeding, that attempt was made to obtain title before proceeding was brought, may be reviewed by judge on appeal.

Ervin & Ervin and Spainhour & Mull, all of Morganton, and W. S O'B. Robinson, Jr., of Charlotte, for appellant.

L. E Rudisill and Avery & Patton, all of Morganton, for respondents.

ADAMS J.

The petitioner is a corporation authorized and empowered to conduct the business of an electric power company and invested with the right of eminent domain. 3 C. S. § 1706. On March 10, 1925, it instituted a proceeding against the respondents before the clerk of the superior court of Burke county for the purpose of acquiring an easement in a tract of land described in its petition. The respondents filed answers, the clerk appointed commissioners to assess damages and the commissioners in due time made their report. All the parties filed exceptions, but the clerk confirmed the majority report, and the petitioner and respondents against excepted. Thereupon the cause was transferred to the civil docket and was afterwards heard in term. The respondents moved to dismiss the proceeding, and the motion was allowed on the following ground:

"This action or proceeding was not brought in conformity with the statutes and laws relating to the condemnation of land, in that the petitioner made no effort, prior to the institution thereof, to acquire title to the land sought to be condemned without resorting to the expense of condemnation proceedings, thereby arbitrarily, irregularly, and prematurely forcing respondents into court in violation of their rights as guaranteed by the Constitution and the laws of the state of which they are citizens."

When the proceeding was instituted, Grayson Moses and Florence Smith were over 21 years of age and owned each a one-eight undivided interest in the land as the heirs at law of Waits Moses, deceased. Bertha Moses, Ben Lee Moses, R. E. Moses, Janie Moses, and Alta Moses were under the age of 21 years, and owned each a one-eighth undivided interest in the land as the heirs of Waits Moses. Lyda Moses was the infant daughter of John Moses, a deceased son of Waits Moses, owning as an heir a one-eighth undivided interest in the land, and Mary Moses was his widow. Jane Moses was the widow of Waits Moses, and entitled to dower in the lands of her deceased husband.

The petitioner alleged that the land in question was necessary and indispensable for the proper construction of its hydroelectric development, and that it was unable to acquire title thereto; also that Jane Moses had refused to sell or convey a part of the land, and that they had not been able to agree on a price for the whole tract; that six of the tenants in common were infants without power to make a valid conveyance of their title; and that resort to the right of eminent domain was the only means of acquiring the desired easement. The trial court found as a fact that no effort had been made in good faith to purchase any interest or easement in the property from either of the infants or from Grayson Moses, Florence Smith, or Jane Moses.

There is error in the judgment dismissing the proceeding. If a corporation possessing the right of eminent domain is unable to agree with the owner for the purchase of any real estate required for the purpose of its incorporation, it shall have the right to acquire title in the manner prescribed. C. S. § 1715. The petition must contain the requisite allegations, including an averment that the petitioner has not been able to obtain the title and the reason of such inability. Section 1716. This allegation is necessary because it is the statement of a preliminary jurisdictional fact. It presents a question to be decided in the first instance by the clerk, whose ruling is subject to review at the proper time by the judge on appeal; but a denial of it in the answer does not raise an issue of fact to be tried by the jury. Abernathy v. Railroad, 150 N.C. 97, 63 S.E. 180; Durham v. Rigsbee, 141 N.C. 128, 53 S.E. 531; Hill v. Mining Co., 113 N.C. 259, 18 S.E. 171; Allen v. Railroad, 102 N.C. 381, 9 S.E. 4.

The judge found as a fact...