Progress Energy Carolinas, Inc. v. Strickland

MARTIN, Chief Judge.

Petitioner sought to condemn an easement across respondent’s property as part of a plan to build a 230 kilovolt power line across Columbus County, North Carolina, running from a point of delivery southeast of Chadbourn, North Carolina, to Nichols, South Carolina. After a hearing before the North Carolina Utilities Commission, petitioner received a certificate of environmental compatibility and public convenience and necessity. Subsequently, petitioner filed a petition for condemnation and appointment of commissioners with the Columbus County Clerk of Superior Court on 2 February 2005. Petitioner alleged, inter alia, that it has the right of eminent domain, that acquisition of an easement over respondent’s property is necessary and in the public interest, and that the easement needs to allow petitioner to construct, operate, and maintain electric and communication facilities. Respondent answered the petition alleging that the proposed easement would condemn his burial ground, usual dwelling house and yard, kitchen, and garden in contravention of the eminent domain statutes. Respondent further alleged that the easement would obstruct and interfere with two airstrips located on his property.

On 7 June 2005, the matter was transferred to the Superior Court Division. After a hearing on 5 July 2005, the court granted the petition and made the following findings: no one is buried within the proposed easement area and the easement to be taken does not affect any burial ground as the property existed on 2 February 2005, the easement to be taken does not affect the kitchen and reasonable size garden of *612the respondent as the property existed on 2 February 2005, and the easement to be taken will affect in some way one or both of respondent’s two airstrips. The court concluded that petitioner has the right to condemn the property and remanded the matter to the Clerk of Superior Court for the appointment of commissioners and for further proceedings through the-normal condemnation process, which would include valuation of the rights being condemned.

Respondent filed a notice of appeal and made fifty-two assignments of error relating to three legal issues: whether petitioner has the authority to condemn by eminent domain any portion of respondent’s garden for the purpose of erecting an electric transmission line, whether petitioner sufficiently described the easement to be condemned and has the legal right to condemn the rights described in the petition, and whether petitioner can exercise the power of eminent domain in light of North Carolina law prohibiting the obstruction of private airports and runways. In its reply brief, petitioner argues that the respondent’s appeal is interlocutory and must be dismissed.

I. Right to Appellate Review

We first consider whether respondent’s appeal in this case is an interlocutory appeal requiring dismissal. “A ruling is interlocutory ‘if it does not determine the issues but directs some further proceeding preliminary to final decree.’ ” Dep’t of Transp. v. Rowe, 351 N.C. 172, 174, 521 S.E.2d 707, 708 (1999) (quoting Greene v. Charlotte Chem. Lab., Inc., 254 N.C. 680, 693, 120 S.E.2d 82, 91 (1961)), rev’d on other grounds, 353 N.C. 671, 549 S.E.2d 203 (2001). In the present case, the Superior Court determined the issue of whether to grant petitioner the right to condemn the easement but remanded the matter to the Clerk of Superior Court for the appointment of commissioners and for further condemnation proceedings; thus, the appeal is interlocutory.

“There is generally no right to appeal an interlocutory order.” Gregory v. Penland, 179 N.C. App. 505, 509, 634 S.E.2d 625, 628 (2006). However, “a party may appeal an interlocutory order that ‘affects some substantial right claimed by the appellant and will work an injury to him if not corrected before an appeal from the final judgment.’ ” Rowe, 351 N.C. at 175, 521 S.E.2d at 709 (quoting Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950)). The Supreme Court recognized in N.C. State Highway Comm’n v. Nuckles, 271 N.C. 1, 155 S.E.2d 772 (1967) that “orders from a con*613demnation hearing concerning title and area taken are ‘vital preliminary issues’ that must be immediately appealed pursuant to N.C.G.S. § 1-277, which permits interlocutory appeals of determinations affecting substantial rights.” Rowe, 351 N.C. at 176, 521 S.E.2d at 709; see also Nuckles, 271 N.C. at 14, 155 S.E.2d at 784; N.C. Dep’t of Transp. v. Stagecoach Village, 360 N.C. 46, 48, 619 S.E.2d 495, 496 (2005).

The Supreme Court defined the concept of vital preliminary issues in two eminent domain cases, Nuckles and Rowe. The issue before the Court in Nuckles was which tracts the .State Highway Commission was taking by eminent domain. When considering whether this was a vital preliminary issue, the Court noted:

Obviously, it would be an exercise in futility ... to have the jury assess damages to tracts 1, 2, 3, and 4 if plaintiff were condemning only tracts A and B, and the verdict would be set aside on appeal for errors committed by the judge in determining the “issues other than damages.”

Nuckles, 271 N.C. at 14, 155 S.E.2d at 784. By contrast, in Rowe the landowners appealed the issue of the unification of four of their tracts through condemnation. The Court noted: “Defendants contest only the unification of the four remaining tracts, not what parcel of land is being taken or to whom that land belongs. Thus, we hold that the trial court’s interlocutory order does not affect any substantial right of these defendants.” Rowe, 351 N.C. at 176, 521 S.E.2d at 709. The Court went on to limit the Nuckles holding to “questions of title and area taken.” Id.

Applying this vital preliminary issue analysis to the case before us, the order is immediately appealable if it decided questions of title or area taken. The order in this case decided whether petitioner had the right to condemn the area of land described in the proposed easement, considering the proximity of respondent’s garden and airstrips to the affected land. These are questions of area taken. Here, as in Nuckles, it would be futile for a jury to assess damages to respondent when the easement taken could be set aside because it unlawfully takes a garden or obstructs an airport. Since the order decided vital preliminary issues concerning the area to be condemned, the interlocutory order is appealable pursuant to N.C.G.S. § 1-277.

II. Respondent’s First Issue: The Garden

We next consider whether the court erred in finding that respondent’s reasonable size garden was not affected by the easement and *614whether the law allows petitioner to condemn the proposed easement for an electric transmission line. The court found: “The easement to be taken by condemnation over Respondent’s property does not affect the kitchen and reasonable size garden of the Respondent as said property existed on the date the Petition was filed, February 2, 2005.” Respondent argues that the evidence does not support the court’s finding and that the finding does not support the court’s conclusion that “Petitioner has the right to condemn the property in the manner noted in the Findings of Fact.” As a preliminary matter, we note that, in this particular case, respondent bore the burden of proving that the court should not grant the petition, according to N.C.G.S. § 40A-25. Section 40A-25 applies to eminent domain proceedings by private condemnors, and it states:

On presenting such petition to the clerk of superior court, ... all or any of the persons whose estates or interests are to be affected by the proceedings may answer such petition and show cause against granting the prayer of the same. The clerk shall hear the proofs and allegations of the parties, and if no sufficient cause is shown against granting the prayer of the petition, shall make an order for the appointment of three commissioners ....

N.C. Gen. Stat. § 40A-25 (2005) (emphasis added). Petitioner Progress Energy Carolinas, Inc., is a private condemnor as described in N.C.G.S. § 40A-3(a), which includes corporations, bodies politic, or persons whose purpose is to construct power lines and other facilities related to power generation and distribution. N.C. Gen. Stat. § 40A-3(a)(l) (2005).

The statutory authority found in § 40A-25 is distinguishable from cases cited by both respondent and the dissent in support of their assertion that petitioner bears the burden of proof. See Redev. Comm’n of Washington v. Grimes, 277 N.C. 634, 643-44, 178 S.E.2d 345, 350-51 (1971); City of Charlotte v. McNeely, 8 N.C. App. 649, 653, 175 S.E.2d 348, 351 (1970). Both Grimes and McNeely involved public condemnors, who are not governed by § 40A-25. See N.C. Gen. Stat. § 40A-3(b)-(c) (2005) (defining public condemnors); N.C. Gen. Stat. § 40A-19 (2005) (limiting the application of § 40A-25 to “[a]ny private condemnor enumerated in G.S. 40A-3(a)”). Furthermore, both Grimes and McNeely cite to Chapter 40 of our General Statutes, which was repealed in 1981. 1981 N.C. Sess. Laws ch. 919, § 1. Public condemnation proceedings are governed by what is now Article 3 of Chapter 40A, while private condemnation proceedings are governed by Article 2 of Chapter 40A.

*615Having established the proper burden of proof, we consider the merit of respondent’s arguments. “The trial court’s findings of fact are binding on appeal as long as competent evidence supports them, despite the existence of evidence to the contrary.” Resort Realty of the Outer Banks, Inc. v. Brandt, 163 N.C. App. 114, 116, 593 S.E.2d 404, 408 (2004). The evidence presented at the hearing was inconclusive as to the precise location of respondent’s garden in relation to the proposed easement. Respondent testified about the location of his garden by describing a large rectangle with indefinite boundaries that appeared on an aerial photograph. It is apparent from the transcript that respondent offered testimony by pointing to areas of the photograph, although the gestures are not recorded in the transcript. Respondent testified orally that the garden extended from the current right of way to the house; however, respondent also testified that he did not know exactly where the proposed easement would run in relation to his garden. Considering the equivocal competent evidence about the size, location, and boundaries of the garden, and respondent’s burden to show that the garden did fall within the proposed easement, the court did not err in finding that a reasonable size garden was not affected by the easement. As supported by the competent evidence, this fact is binding on appeal.

Respondent argues the court erred in concluding, based on this finding, that petitioner had the right to condemn respondent’s garden in contravention of the plain language of N.C.G.S. § 40A-3(a), governing private condemnors, which states: “No such condemnor shall be allowed to have condemned to its use, without the consent of the owner, his burial ground, usual dwelling house and yard, kitchen and garden, unless condemnation of such property is expressly authorized by statute.” N.C. Gen. Stat. § 40A-3(a) (2005). Although this statute in fact limits a private condemnor’s power to condemn a garden, the court’s conclusion in the present case does not contravene the statute. The trial court did not find that the proposed easement would affect the respondent’s garden, which finding would have triggered the § 40A-3 limitation. Rather, the court concluded that petitioner has the right to condemn based on the finding that a reasonable size garden would not be affected.

Respondent further argues the court used the wrong standard when it made a finding with regard to a “reasonable size garden” because such language does not appear in the statute. We acknowledge that N.C.G.S. § 40A-3 does not use the standard of a “reasonable size garden,” but in the present case this is not a fatal flaw. If the *616court’s findings support the conclusions of law, we will affirm the trial court’s order. See Resort Realty, 163 N.C. App. at 116, 593 S.E.2d at 408. Here, the court found that a reasonable size garden would not be affected by the proposed easement. The finding suggests either that the whole garden, of a reasonable size, was not affected by the proposed easement or at least that the respondent did not meet his burden of proving that any portion of the garden was affected by the easement. Either reading of the finding is sufficient to support the court’s conclusion that the petitioner has the right to condemn the land.

III. Respondent’s Second Issue: Description of the Easement

The second issue raised by respondent is whether the petition sufficiently described the extent of the easement to be condemned and whether petitioner has the legal authority to condemn the rights described in the petition. N.C.G.S. § 40A-20 governs what information must be alleged in the petition. It requires “a description of the property which the condemnor seeks to acquire . . ., stating in detail the nature of its public business, and the specific use of the property; and that the property described in the petition is required for the purpose of conducting the proposed business.” N.C. Gen. Stat. § 40A-20 (2005). We conclude that petitioner satisfied the statutory requirements where the petition (1) included a legal description of the property and the easement area in exhibit A, (2) described its intended use as “Petitioner plans to construct across land owned by Respondent a transmission and/or distribution line consisting of one or more wires attached to poles for the purpose of transmitting and distributing electric power as part of the necessary functioning of Petitioner’s electric system,” and (3) further described in paragraph 8, for one and one-half pages, the nature of the right, title, and interest that it sought to condemn.

Citing Cannon v. City of Wilmington, 242 N.C. 711, 89 S.E.2d 595 (1955), cert. denied, 352 U.S. 842, 1 L. Ed. 2d 58 (1956), both respondent and the dissent assert that petitioner is required to define with particularity the location and extent of its claimed easement. Id. at 714, 89 S.E.2d at 597. We note that Cannon, a case about a public taking by the State Highway and Public Works Commission, was decided in 1955, under a previous version of the eminent domain statutes. See id. at 713, 89 S.E.2d at 597. Our General Assembly repealed the eminent domain laws appearing in Chapter 40 of our General Statutes in 1981 and enacted Chapter 40A. 1981 N.C. Sess. Laws ch. 919, § 1. To the extent that Cannon might constitute controlling precedent in the *617case of a private condemnation proceeding, we rely on our General Assembly to have incorporated it into the recodified eminent domain statutes, and § 40A-20 in particular.

Similarly, we recognize that M.E. Gruber, Inc. v. Eubank, 197 N.C. 280, 148 S.E. 246 (1929), cited by the dissent, is not controlling precedent in this case because it pertains specifically to easements created by deed, not to eminent domain proceedings. Id. at 284, 148 S.E. at 248 (“An easement, of course, is an interest in land, and if it is created by deed, either by express grant or by reservation, the description thereof must not be too uncertain, vague and indefinite.”) (emphasis added).

Respondent also cites N.C.G.S. § 40A-66 as statutory authority requiring certain descriptions to appear in the petition; however, § 40A-66 governs valuation and does not impose requirements on the petition. We do not read such requirements into the statute because “[w]hen [a] section dealing with a specific matter is clear and understandable on its face, it requires no construction.” State ex rel. Utils. Comm’n v. Lumbee River Elec. Membership Corp., 275 N.C. 250, 260, 166 S.E.2d 663, 670 (1969). We conclude the description of the easement sought to be condemned in the petition is sufficient.

Respondent further argues that petitioner does not have the authority to condemn an easement to construct “future facilities.” As we have previously discussed, under N.C.G.S. § 40A-25, we must determine whether respondent has successfully shown that petitioner has exceeded its authority in seeking condemnation of the easement for future facilities. As all of the facilities to be built on a proposed easement are “future” facilities, petitioner’s authority to condemn the easement for future facilities is granted in the statutory grant of eminent domain appearing in N.C.G.S. § 62-183, which includes the right to erect poles and towers and to establish offices and powerhouses. N.C. Gen. Stat. § 62-183 (2005). We have found no other authority suggesting that “future facilities” are excluded from the general grant; therefore, the description in the petition does not exceed petitioner’s authority to condemn under our statutes. Furthermore, to the extent that petitioner shall have the right to construct future facilities, respondent may seek compensation for his loss at the valuation stage.

IV. Respondent’s Third Issue: The Airstrips

We turn to the final issue in this appeal, whether petitioner can exercise the power of eminent domain when it conflicts with statutes *618governing the obstruction of private airports and runways. The alleged conflict between the statutes stems from language in N.C.G.S. § 62-183 that electric power companies may condemn by eminent domain a “right-of-way over the lands, privileges and easements of other persons and corporations” and language in the aviation statutes which declares that airport hazards are not in the public interest and obstruction of a private airport is a misdemeanor. N.C. Gen. Stat. §§ 63-30, 63-37.1 (2005). In this case, the court found that “[t]he easement to be taken by condemnation over Respondent’s property will affect in some way one or both of the two (2) airstrips of the Respondent.” Since respondent did not assign error to this finding of fact, it is presumed to be correct and supported by the evidence. In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982). Respondent argues that the proposed easement in this case would create both an obstruction and a hazard to respondent’s airstrips and that the aviation statutes therefore prohibit petitioner from condemning the easement.

We first note the principle of statutory construction that “[interpretations that would create a conflict between two or more statutes are to be avoided, and statutes should be reconciled with each other whenever possible.” Velez v. Dick Keffer Pontiac-GMC Truck, Inc., 144 N.C. App. 589, 593, 551 S.E.2d 873, 876 (2001). The statutory construction advocated by respondent results in a conflict between the statutes, namely that the eminent domain statute allows condemnation of the easement near the airstrip while the aviation statutes prohibit it. The precedent for statutory construction requires that we consider whether the statutes can be read in such a way as to avoid conflict. This can be accomplished by an understanding of the language “obstruction” and “hazard” in the aviation statutes as not pertaining to airport rights and uses that become permanently condemned through a formal condemnation proceeding and for which just compensation is received. We find this to be the most harmonious reading of the two statutes because, to the extent the power lines in the easement will affect the airstrips, they constitute a condemnation of certain activity on the airstrip, rather than a hazard or obstruction. The loss of use or other effect of the easement on the airstrip may be resolved in the valuation portion of the proceedings.

Even if the statutes could not be read together to avoid conflict, any resolution of the conflict between the statutes, based on the other principles of statutory construction, would result in the eminent domain statutes controlling the present situation. We note that “the *619exclusion of a particular circumstance from a statute’s general operation is evidence of legislative intent not to exempt other particular circumstances not expressly excluded.” Dep’t of Transp. v. Humphries, 347 N.C. 649, 656, 496 S.E.2d 563, 567 (1998) (quoting Batten v. N.C. Dep’t of Corrections, 326 N.C. 338, 344-45, 389 S.E.2d 35, 39 (1990)). Eminent domain statute N.C.G.S. § 40A-3(a) contains specific exemptions from the general ability of private condemnors to condemn property where it prohibits condemnation of burial grounds, houses and yards, and kitchens and gardens without the owner’s consent unless authorized by statute. Since N.C.G.S. § 40A-3 contains exceptions which do not include land that affects a private airstrip, this is evidence that the legislature did not intend to exempt such land. Furthermore, “[w]hen a more generally applicable statute conflicts with a more specific, special statute, the ‘special statute is viewed as an exception to the provisions of the general statute ....’” Taylor v. Robinson, 131 N.C. App. 337, 338, 508 S.E.2d 289, 291 (1998) (quoting Domestic Electric Service, Inc. v. City of Rocky Mount, 20 N.C. App. 347, 350, 201 S.E.2d 508, 510 (1974)). As the eminent domain statutes contain much more detail about what land may be taken for what uses, as discussed above, the aviation statutes are the generally applicable statutes and the eminent domain statutes are an exception to it.

Finally, we note that the court was required to grant the petition unless respondent successfully showed cause that condemnation of the easement is prohibited by law. Accordingly, we conclude that the North Carolina statutes grant petitioner the authority to condemn respondent’s land even though it “will affect in some way one or both of the two (2) airstrips,” and we affirm.

Affirmed.

Judge CALABRIA concurs. Judge TYSON concurs in part and dissents in part by separate opinion.