TOWN OF HERTFORD
v.
Jesse L. HARRIS and wife, Elizabeth Clark Harris.
No. 39.
Supreme Court of North Carolina.
February 24, 1965.*421 Lake, Boyce & Lake, Raleigh, for respondent appellants.
Charles E. Johnson, Hertford, and John H. Hall, Elizabeth City, for petitioner appellee.
RODMAN, Justice.
The Legislature has authorized municipalities to acquire property for the purposes *422 enumerated in the petition, G.S. § 160-204. If unable to agree with the owner on the amount to be paid, the municipality may condemn, G.S. § 160-205.
Here, the court has found as a fact that Hertford sought in good faith to acquire title by private negotiation. Defendants have not, by exceptions, challenged the findings. The findings are conclusive. The only question then is: Do the facts found warrant the order which the court made? Schloss v. Jamison, 258 N.C. 271, 128 S.E.2d 590; City of Goldsboro v. Atlantic Coast Line R. R., 246 N.C. 101, 97 S.E.2d 486.
The evidence and the findings are that all of the negotiations had by the town were with the male defendant; none were had with the wife, feme defendant. The petition alleges, and the answer admits, defendants are the owners of the land. The character of ownership is not disclosed by the pleadings. Are they tenants by the entirety, as the brief of defendants suggests; are they co-tenants; or does the wife own some other right in the property, such as a contingent right of dower? The evidence does not show, and the court has made no finding. Our statute requires one vested with the power to take by eminent domain to first attempt to acquire from the owner by private negotiations. Such an allegation is jurisdictional. Brown, J., said in Durham v. Rigsbee, 141 N.C. 128, 53 S.E. 531:
"It is not essential that the particular language of the statute should be used. If the facts alleged plainly show that the petitioner has been unable to acquire title and the reason why, that is a compliance with the statute. While this is a necessary allegation of this petition, it is not an issuable fact for the jury to determine. The judge was right in refusing to submit it to the jury. The statute requires such a statement so that the court may see whether the condemnor has made a reasonable effort to acquire title without resorting to the expense of condemnation proceedings and bringing a citizen into court."
Condemnor is not required, when several are asserting title to the lands to be acquired, to unravel the divergent interests and negotiate with each claimant. Any other rule would needlessly delay a governmental agency in work proposed for the protection of society. As said by Adams, J. in Western Carolina Power Co. v. Moses, 191 N.C. 744 (747), 133 S.E. 5, 7: "Inability to acquire the title of some of the owners makes it unnecessary to negotiate with the others."
The court correctly concluded that it was not necessary to go through the vain performance of making an offer to Mrs. Harris before instituting condemnation proceedings.
The assignments of error do not challenge the power of the court to appoint commissioners for the purpose of fixing the value of the property in an eminent domain proceeding when controversy exists between condemnor and condemnee as to which has title. The question is, however, raised in the brief. The challenge now directed to Judge Mallard's order arises because of an allegation in the petition that "there is .57 of an acre of land included in said description, that the Town of Hertford already has and owns, a permanent lease thereon." Defendants, in their answer, denied "that the petitioner now owns a permanent lease or any other interest in and to any part of the tract of land * * *."
If the question had to be decided merely upon the pleadings, it would present a serious problem. A governmental agency has no need or right to condemn property which it owns. Virginia Electric & Power Co. v. King, 259 N.C. 219, 130 S.E.2d 318; Wescott v. State Highway Commission, 262 N.C. 522, 138 S.E.2d 133. Where controversy exists between condemnor and condemnee as to which has title, logic would seem to dictate that value should be ascertained only after these rights have been determined. When the dispute relating to title is between defendants, there is no reason to delay the *423 appointment of commissioners. There, when value has been determined, the condemnor may pay the ascertained value into court and the disputed claims will then be transferred from the property to the fund.
Our examination of the record, and of the proceedings had, convinces us that the petitioner, notwithstanding its allegations of a perpetual lease, did not intend thereby to reduce the value of the fee simple estate it sought to acquire. The fifth allegation of the petition reads: "That the title to said lands sought to be acquired by the petitioner is the complete, fee simple title thereto, subject nevertheless to the existing easement or right of way in favor of the Norfolk Southern Railway Company and the existing easement of the Virginia Electric & Power Company, if any." This allegation seemingly negatives the contention that petitioner sought to acquire, or pay for, less than an unencumbered fee. This conclusion is fortified by recitals in Judge Mallard's order. He said petitioner and respondent agreed that the only question he was called upon to determine was whether there has been such negotiations between the parties as warranted the appointment of commissioners.
When the town sought to have the property valued, free of any claims which it could assert, the town could not, after the value had been fixed, claim any part of the award. Virginia Electric & Power Co. v. King, supra.
Our interpretation of petitioner's position was said, in the oral argument, to be correct.
The town has filed in this Court a written stipulation stating that "damages are to be awarded on the basis of the defendants being the owners in fee of the full title of the lands sought to be condemned and of the entire tract of which they are a part." That stipulation is now a part of the record on appeal.
Since there is no controversy between the town and the defendants with respect to title, the order remanding the cause to the Clerk for the appointment of commissioners is
Affirmed.