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Rutherford Elec. Mbrshp. Corp. v. 130 of Chatham, LLC

Court of Appeals of North Carolina

September 2, 2014

RUTHERFORD ELECTRIC MEMBERSHIP CORPORATION, Petitioner,
v.
130 OF CHATHAM, LLC, Respondent

Heard in the Court of Appeals August 14, 2014.

Page 297

Rutherford County. No. 13 SP 95.

Parker Poe Adams & Bernstein, LLP, by W. Edward Poe, Jr., Thomas N. Griffin, III, and Benjamin Sullivan; and Law Offices of Elizabeth T. Miller, by Elizabeth T. MillerMs., for Petitioner-appellant.

Roberts & Stevens, P.A., by Ann-Patton HornthalMs. and William ClarkeMr.; Sigmon, Clark, Mackie, Hanvey & Ferrell, PA, by Forrest FerrellMr. and Amber ReinhardtMs.; and Kilpatrick, Townsend & Stockton, LLP, by Steven J. LevitasMr., for Respondent-appellee.

Roberts & Stevens, P.A., by Mr. Stephen L. Cash; Kilpatrick Townsend & Stockton, LLP by Mr. Todd S. Roessler for Respondent-appellee.

Parker Poe Adams & Bernstein LLP, by Mr. Thomas N. Griggin, III, Mr. Benjamin R. Sullivan, for Respondent-appellee.

Robert N. HUNTER, JR., Judge. Judges STEELMAN and GEER concur.

OPINION

Page 298

HUNTER, JR., Robert N., Judge.

Appeal by petitioner from order entered 30 October 2013 by Judge Hugh B. Lewis in Rutherford County Superior Court.

Petitioner Rutherford Electric Membership Corporation (" Rutherford Electric" ) appeals from an order dismissing their petition to condemn easements for a power line across Respondent 130 of Chatham LLC's (" Chatham" ) tract of land (" Box Creek Wilderness" ) that spans across Rutherford and McDowell Counties After careful review, we reverse the trial court's order.

I. Facts & Procedural History

Rutherford Electric filed a special proceeding petition with the Rutherford County Superior Court on 24 January 2013 and filed an amended petition on 15 February 2013. Both petitions were filed pursuant to Chapter 40A of the General Statutes, which allow for a private company to petition for exercise of eminent domain " for the public use of benefit." N.C. Gen. Stat. § § 40A-3(a), 40A-20 (2013). Chatham answered the amended petition on 1 April 2013, which included a motion to dismiss under N.C. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, stating that " [a] portion of the property subject of the Amended Petition lies in McDowell County, and the Clerk of Court for Rutherford County has no jurisdiction over property in McDowell County." The petition concerned a single tract of land that lay in both Rutherford and McDowell counties. The petition's stated purpose was to condemn easements so that Rutherford Electric may construct power lines and extend its service to additional customers. Rutherford Electric also filed a separate petition to condemn easements for a second tract of land also owned by Chatham that is entirely in McDowell County (" Copperleaf" ).

The Rutherford County Clerk of Court appointed three citizens of Rutherford County as commissioners to appraise and determine the value of just compensation for the tract at issue pursuant to N.C. Gen. Stat. § 40A-25 (2013). A hearing date of 28 May 2013 was also set in the order appointing the commissioners. The hearing took place on 28 May 2013 and the three commissioners returned a value of $71,686.00 for the easement on the tract of land at issue via a written report on 24 June 2013. Both parties appealed for a de novo jury trial on the amount of just compensation.

A trial on the merits was set for August 2013. Rutherford Electric also filed a separate petition for the Copperleaf tract in McDowell County on 5 June 2013 to condemn certain land under Chapter 40A of the General Statutes. Chatham responded to the petition on 24 June 2013. The parties consented to an order to consolidate the cases for ...


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