Yadkin County v. City of High Point
| Decision Date | 17 April 1940 |
| Docket Number | 233. |
| Citation | 8 S.E.2d 470,217 N.C. 462 |
| Parties | YADKIN COUNTY v. CITY OF HIGH POINT et al. |
| Court | North Carolina Supreme Court |
Civil action to restrain the defendants
from constructing dam and reservoir on Yadkin River for use in operation of hydroelectric plant.
Due to the issues involved, the Attorney-General of the State petitioned the court and was allowed to appear in the case as amicus curiae.
On the hearing, it was agreed by all the parties that a jury trial should be waived, and that the whole matter should be submitted to the court for final determination, both as to the law and the facts. It was further stipulated that the issues involving the authority of the defendant city to proceed with the project should be heard and determined on the evidence taken in the case of J. W. McGuinn et al. v City of High Point, pending in the Superior Court of Guilford County.
At the conclusion of plaintiff's evidence, a nonsuit was entered on the allegations of loss which might result to the plaintiff by reason of the removal from the tax books of the county large taxable assets in the event the proposed hydroelectric plant was constructed. The plaintiff noted an exception to this ruling, but has not appealed.
In summary, the essential determinations and conclusions of the court follow:
1. That Yadkin County is a municipal corporation and political subdivision of the State.
2. That the City of High Point is a duly chartered municipal corporation of the State, and the other defendants constitute the City Council and the Board of Power Commissioners of the defendant city.
3. That the dam for the hydroelectric plant which the defendants propose to construct on the Yadkin River is designed to impound "231,000 acre feet of water covering approximately 14,750 acres of land and adversely affecting approximately a similar acreage", which reservoir area lies within the counties of Davie, Yadkin and Forsyth with a total shore line of about 290 miles.
4. That the dam, if built as designed, would submerge and render totally impracticable for the public use to which it is now appropriated approximately 25 acres of the Yadkin County Home site which for many years has been devoted to a public use i. e., the care and protection of the indigent of the county and is the only lowland on the 159 acres in the tract. The taking of this property by the defendants would be for a purpose wholly inconsistent with the public use to which it is now devoted.
5. That the proposed project, if constructed as designed, would inundate the county highways of Yadkin County at fifteen places, ranging from one-tenth of a mile to a mile and a tenth, necessitating their abandonment; that it would also submerge various bridges on these county roads, and make inaccessible large areas containing sites now used for homes, schools and churches.
6. That the Commissioners of Yadkin County have not consented to the abandonment, sale or surrender either of the county highways in question or that portion of the county home site proposed to be flooded.
(The findings in respect of the navigability of the Yadkin River in North Carolina and as bearing upon the acceptance by the city of a license from the Federal Power Commission are presently omitted for reasons hereafter to appear.)
7. That the proposed plant and system cannot be operated for the maximum benefit of the taxpayers of the City of High Point, and, at the same time, in keeping with the license issued by the Federal Power Commission under which the defendants propose to operate it because the terms and conditions of this license are incapable of being carried out except to the detriment and diminution of the power production of the plant.
Upon these findings, the court concluded (1) that the City of High Point is without authority to condemn any part of the Yadkin County Home site or any of the Yadkin County highways in question; (2) that the city is likewise without authority to accede to the terms and conditions of the license issued by the Federal Power Commission for the construction, maintenance and operation of the proposed project. Whereupon, injunction was granted in accordance with the prayer of the plaintiff, from which the defendants appeal, assigning errors.
D. L. Kelly, of Yadkinville, and B. S. Womble and W. P. Sandridge, both of Winston-Salem, for plaintiff, appellee.
G. H. Jones, of High Point, and Roy L. Deal, of Winston-Salem, for defendants, appellants.
Harry McMullan, Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., amici curiae.
We are here dealing with the same project that was the subject of consideration in the companion case of McGuinn v. City of High Point, 8 S.E.2d 462, decided this day. What is there said in respect of the determinations pertaining to the navigability of the Yadkin River in North Carolina and the authority of the City of High Point to accede to the terms and conditions of the license issued by the Federal Power Commission will suffice for the similar determinations made in the instant case.
The present record contains the further specific finding of incompatibility between the obligations assumed by the City of High Point in agreeing to abide by all the conditions imposed in the license issued by the Federal Power Commission and its duties as a municipality.
The remaining question, then, and the principal one here, is whether the City of High Point can lawfully condemn (1) a portion of the County Home site and (2) the fifteen sections of the county highways of Yadkin County in the circumstances as shown by the record. The trial court answered in the negative and we cannot say there is error in the ruling.
First. The defendants concede that their right to condemn the 25 acres of lowland on the Yadkin County Home site may be doubtful. They cite no statutory authority for the right, either express or implied. However, they claim it as a matter of necessity or as not materially interfering with a prior right. See Pennsylvania Railroad Co.'s Appeal, 93 Pa. 150, on the doctrine of necessity; also Easthampton v. County Com'rs, 154 Mass. 424, 28 N.E. 298, 13 L.R.A. 157, on the defendants' suggestion of "balancing conveniences".
The power of eminent domain, as generally understood, extends only to the right to condemn private property for public uses. Wissler v. Power Co., 158 N.C. 465, 74 S.E 460; Jeffress v. Greenville, 154 N.C. 490, 70 S.E. 919. It is for the General Assembly to say whether in the particular case or under certain conditions, the power shall be enlarged to embrace public property and property devoted to a public use as well as private property. 10 R.C.L. 198. The authorities are to the effect that a general authorization to exercise the power of eminent domain will not suffice in a case where property already dedicated to a public use is sought to be condemned for another public use which is totally inconsistent with the first or former use. North Carolina & R. & D. Railroad v. Carolina Cent. Railroad, 83 N.C. 489; 20 C.J. 602. In such a case a specific legislative grant or one of unmistakable intent is required. Vermont Hydro Electric Corp. v. Dunn et al., 95 Vt. 144, 112 A. 223, 12 A.L.R. 1495; Minnesota Power & Light Co. v. State, 177 Minn. 343, 225 N.W. 164; City of Albuquerque v. Garcia, 17 N.M. 445, 130 P. 118; Village of Ridgewood v. Glen Rock, 188 A. 698, 15 N.J.Misc. 65. Especially insistent are the cases where the property sought to be condemned for a second public use is owned by an agency of the Government, or a subdivision...
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