VIRGINIA ELECTRIC & POWER COMPANY
v.
S. D. KING and wife, Browning B. King.
No. 166.
Supreme Court of North Carolina.
April 10, 1963.*319 Crew & House, by W. Lunsford Crew and J. Albert House, Jr., Roanoke Rapids, and Hunton, Williams, Gay, Powell & Gibson, by E. Milton Farley, III, Richmond, for appellant.
Allsbrook, Benton & Knott, by Dwight L. Cranford, Roanoke Rapids, for appellees.
*320 RODMAN, Justice.
The words "eminent domain" mean the power of the sovereign or some agency authorized by it to take private property for public use. Hedrick v. Graham, 245 N.C. 249, 96 S.E.2d 129; Yadkin County v. City of High Point, 217 N.C. 462, 8 S.E.2d 470; Spencer v. Seaboard Air Line R. R., 137 N.C. 107, 49 S.E. 96, 1 L.R. A.,N.S., 604. When the right is exercised, a duty is imposed on condemnor to pay just compensation for the property taken. Mount Olive v. Cowan, 235 N.C. 259, 69 S.E.2d 525.
The Legislature has prescribed the manner in which the power of eminent domain may be exercised. Before the agency seeking to acquire can ask the court to condemn, it must make a bona fide effort to purchase by private negotiation. G.S. § 40-11; Mount Olive v. Cowan, supra; Penn v. Carolina Virginia Coastal Corp., 231 N.C. 481, 57 S.E.2d 817; Winston-Salem v. Ashby, 194 N.C. 388, 139 S.E. 764; Allen v. Wilmington & W. R. R., 102 N. C. 381, 9 S.E. 4. The petition must allege an effort to purchase by private negotiation and the names and residences of the owners. G.S. § 40-12.
If the property owned by a corporation having the right of eminent domain is inadequate for its corporate purposes, it may purchase such additional rights as it may need to serve the public. Such purchase may be with the consent of the owner or by condemnationa purchase without the owner's consent at the value of the property taken. Nantahala Power & Light Co. v. Moss, 220 N.C. 200, 17 S.E.2d 10. One cannot condemn that which he owns. To hold otherwise would ignore the requirements of G.S. § 40-11.
The Legislature conferred on adverse and conflicting claimants to the sum fixed as the fair purchase price of the property taken the right to litigate their respective claims, but the phrase "adverse and conflicting claimants" does not include condemnor. The phrase "adverse and conflicting claimants" is limited to (a) those who assert adverse titles to the property and hence a conflict in interest as to the party entitled to the sum awarded, or (b) those who are in agreement as to their respective titles but are in disagreement as to the value of their respective estates and hence the proportion of the award to which each is entitled.
The language of the Supreme Court of Oklahoma in Grand River Dam Authority v. Simpson, 192 Okl. 338, 136 P.2d 879, 881, is a concise and accurate statement of the law when applied to the facts of this case. That Court said: "The institution of the proceeding admits the ownership. The condemnor cannot claim the beneficial ownership of land and at the same time assert that the condemnee claims all or some part of that interest; the proceeding in condemnation cannot be employed as a means to quiet title; and the right to exercise the power of eminent domain is dependent entirely upon the ownership being in some one other than the condemnor; the power to condemn negatives ownership in the condemnor." Colorado M. Ry. Co. v. Croman, 16 Colo. 381, 27 P. 256; Houston North Shore R. Co. v. Tyrrell, 128 Tex. 248, 98 S.W.2d 786, 108 A.L.R. 1508; 29 C.J.S. Eminent Domain § 260, p. 1232; 18 Am.Jur. 716.
The record does not disclose the court's reason for excluding evidence offered by petitioner for the purpose of establishing its assertion that it owned an easement on part of the larger tract. It may be the ruling was based upon the sound principle that without amendment the petitioner would not be permitted to offer evidence contrary to its allegation that the defendants were the owners in fee of the property. The language used in excluding the evidence offered by petitioner is fairly susceptible to the interpretation and we think the court's ruling was predicated upon its conclusion that the evidence *321 did not tend to show that defendants' land was burdened with an easement.
In either event, if the clerk's ruling was erroneous, petitioner's method of protecting itself was to except, as it did. Then, when the award was made, it had the right to object and except to confirmation because the award was based on an erroneous assumption as to the property taken. From an adverse ruling it could appeal as provided by G.S. § 40-19. This it elected not to do. Presumably it made its choice after mature deliberation. It is now bound by the award which has been confirmed without objection. It cannot now challenge defendants' right to the compensation which has been awarded for the property taken from them.
Affirmed.