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City of Charlotte v. Cook

May 08, 1998

THE CITY OF CHARLOTTE
v.
J. ERNEST COOK; AND WIFE, RUBY H. COOK THE CITY OF CHARLOTTE
v.
J. ERNEST COOK; AND WIFE, RUBY H. COOK; AND CRESCENT ELECTRIC MEMBERSHIP CORPORATION



The opinion of the court was delivered by: Webb, Justice

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, 125 N.C. App. 205, 479 S.E.2d 503 (1997), vacating judgments entered by Sitton, J., on 6 December 1995, in Superior Court, Mecklenburg County. Heard in the Supreme Court 11 September 1997.

This appeal involves a question as to the power of a city to condemn property. The City of Charlotte filed actions to condemn a fee simple interest in two tracts of land in Mecklenburg County for the laying of a pipeline as a part of the North Mecklenburg Raw Waterline Project. Defendants Cook owned the property to be condemned, and defendant Crescent Electric Membership Corporation had an option to purchase one of the tracts. The two actions were consolidated by consent for trial.

The project being constructed by the Charlotte-Mecklenburg Utility Department (CMUD) will supply additional drinking water for Mecklenburg County. The pipeline to be constructed across the land will connect the raw water intake structure on Lake Norman and a water treatment plant in north Mecklenburg County.

A hearing pursuant to N.C.G.S. § 136-108 was held to determine all issues except compensation. In his judgments, Judge Sitton found the following facts:

17. The decision by the City of Charlotte to acquire the route for the pipeline in fee simple was based on a number of factors, including, but not limited to the following:

a. the depths (up to 40 feet deep) at which the 60-inch diameter pipes will be installed;

b. the number and nature of the facilities that will be located within the pipeline route;

c. the ability to exercise effective control over all uses of the pipeline route by having the ability to determine in advance any proposed use[] of the pipeline route which would be permitted by the City;

d. the ability to protect the pipeline facilities more effectively than if the City of Charlotte only had an easement[;]

e. the cost[s] for acquisition of a fee simple interest were not anticipated to be significantly different than for the acquisition of an easement;

f. the ability to select the most economical electric power supplier.

Based on these findings of fact, Judge Sitton allowed the plaintiff to acquire a fee simple estate in the property. The Court of Appeals vacated the judgments, and we allowed discretionary review.

The Court of Appeals held that a condemning agency cannot take a larger estate in the condemned land than is necessary to carry out the public purpose for which the land is condemned. For this reason, said the Court of Appeals, the City could condemn only an easement in the property. We disagree with the Court of Appeals.

In Raleigh & Gaston R.R. Co. v. Davis, 19 N.C. 451 (1837), we dealt with the condemnation of land for the construction of a railroad. Chief justice Ruffin, writing for the Court, explained the nature of the power of eminent domain. He pointed out that unlike the federal government, which has only those powers delegated to it by the people through the Constitution of the United States, the government of our state has all the power necessary to exercise its sovereignty. Id. at 457. This sovereign power may be restricted only by the state or federal Constitution. The right of eminent domain is one of the ...


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