Seawell, J.
Preliminarily to the statement of the question, we observe that the choice of a route in a condemnation proceeding is primarily within the political discretion of the grantee of the power and will not be reviewed on the ground that another route may have been more appropriately chosen unless it appears that there has been an abuse of the discretion.
Power Co. v. Wissler,
160 N. C., 269, 76 S. E., 267;
Selma v. Nobles,
183 N. C., 322, 325, 111 S. E., 543.
In the exercise of the right of eminent domain, private property can be taken only for a public purpose and upon just compensation.
Long v. Rockingham,
187 N. C., 199;
McRae v. Fayetteville,
198 N. C., 51, 150 S. E., 810.
But in any proceeding for condemnation under the power of eminent domain, what is a public purpose, or, more properly speaking, a public use, is one for the court.
Deese v. Lumberton,
211 N. C., 31, 188 S. E., 857;
Yarborough v. Park Commission,
196 N. C., 284, 145 S. E., 563;
Highway Commission v. Young,
200 N. C., 603, 607, 158 S. E., 91; McQuillin, Municipal Corporations, sec. 1600, p. 517; 29 C.
J.
S., pp. 820, 821. Where the particular application of this principle requires an ascertainment of fact, whether by court or jury, when the facts are determined the issue no longer rests in fact hut in law.
In the case at bar the facts essential to judicial determination are not disputed. The judge, taking the whole evidence to be true, absolved all parties from bad faith, but found as a fact and repeated as a conclusion of law that the condemnation was sought for a private purpose; for the sole benefit of a group of home owners, indefinitely described, living outside the city limits. Either it is assumed that this group was not large enough to constitute a community, or to be credited with the necessity of a public use; or that the municipality was without power to exercise the right of eminent domain otherwise than for the exclusive benefit of its own inhabitants. The oral argument and discussion in the opposing briefs follow that pattern; and, disregarding matters not essential to disposition of the appeal, we may state the question before us in substantially the same form: (a) Whether the intended use of the right-of-way sought is public or private; and (b) Whether the City of Charlotte may, either under its Charter or the general public laws, extend its sewerage facilities to nonresidents living in the environment of the city
.and acquire by condemnation a right-of-way for that purpose: or, conversely stated, whether condemnation may be made only for the exclusive benefit of those living within the city limits.
1. The first question must be answered in the affirmative. The label of fact put upon a conclusion of law will not defeat appellate review.
We
will not attempt to give any definition of what is a public purpose or a public use applicable to all situations. Perhaps none can be devised which is not challengeable, since, with the progressive demands of society and changing concepts of governmental function, new subjects are constantly brought within the authority of eminent domain. The matter with which we are dealing doés not carry us that far.
Perhaps the simplest definition is found in 18 Am. Jur., page 666, sec. 38 (2), originally devised by Judge Cooley in practically the same form: “Takings, either by a municipal or a private corporation, for the purpose of enabling such corporation to furnish the public with some necessity or convenience which cannot readily be furnished without the aid of some governmental power, and which is required by the public as such, when the public has a legal right to make use of such necessity and convenience.”
If there was in the record any evidence to sustain the theory that the use of the sewer line was intended to be confined, or could be confined in the future, to the 65 or 70 persons presently dwelling in the area to be served, and was not now, nor could hereafter be accessible to the general public who seek residence there, the case might be different. But there is no such evidence, and the inferences are to the contrary.
The public nature of the project cannot be made to depend on a numerical count of those to be served or the smallness or largeness of a community.
Quoting again from 18 Am. Jur., “Eminent Domain,” sec. 40: “Similarly in those states in which use by the public is the test, the mere number of people who use or can use the property taken are not determinative of whether it constitutes a public use or not. It may suffice if very few have or may ever have occasion to use it.” See also C. J. S., “Eminent Domain,” page 827, sec. 31 (b).
“The use which will justify the taking of private property under the exercise of the right of eminent domain is the use by or for the government, the general public, or some portion thereof as such, and not the use by or for particular individuals or for the benefit of particular estates. The use, however, may be limited to the inhabitants of a small locality, but the benefit must be in common.” “It is not essential that the entire community nor even any considerable portion should directly enjoy or participate in an improvement in order to constitute a ‘public use.’ ”
Rindge Co. v. Los Angeles County,
262 U. S., 700, 67 Law Ed.,
1186. “The public use required need not be tbe use or benefit of the whole public or state or any large portion of it. It may be for the inhabitants of a small or restricted locality; but the use and benefit must be in common, not to particular individuals or estates.”
Miller v. Pulaski,
109 Va., 137, 63 S. E., 880, 883; McQuillin, Municipal Corporations, sec. 1600, page 521; Lewis, Eminent Domain, 3rd Ed., sec. 258. We are satisfied that the use to which it is proposed to put the land condemned is within these definitions.
The evidence developed nothing in common between the members of this community except the urgent communal necessity of a less offensive and more sanitary method of disposing of the sewage, and a co-operative effort to put the situation under the complete control of the city authorities. In so doing they only complied with the requirements of the City Charter, and the contribution made by members of the community to the original installation did not deprive the project of its public character.
Stratford v. City of Greensboro,
124 N. C., 127, 32 S. E., 394. When the line was complete and connected with the city sewerage system it became the property of the City of Charlotte by virtue of the statute, sec. 65, Charter of City of Charlotte,
supra,
and they became nothing more than individually paying customers under city regulation applicable alike to the general public, and were without any vestige of further control.
Condemnation was, therefore, not as charged by defense, a mere device to put the project in control of those who had neither the power to condemn nor the right to exercise the franchise.
2. The Charter of the City of Charlotte, cited
supra,
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Seawell, J.
Preliminarily to the statement of the question, we observe that the choice of a route in a condemnation proceeding is primarily within the political discretion of the grantee of the power and will not be reviewed on the ground that another route may have been more appropriately chosen unless it appears that there has been an abuse of the discretion.
Power Co. v. Wissler,
160 N. C., 269, 76 S. E., 267;
Selma v. Nobles,
183 N. C., 322, 325, 111 S. E., 543.
In the exercise of the right of eminent domain, private property can be taken only for a public purpose and upon just compensation.
Long v. Rockingham,
187 N. C., 199;
McRae v. Fayetteville,
198 N. C., 51, 150 S. E., 810.
But in any proceeding for condemnation under the power of eminent domain, what is a public purpose, or, more properly speaking, a public use, is one for the court.
Deese v. Lumberton,
211 N. C., 31, 188 S. E., 857;
Yarborough v. Park Commission,
196 N. C., 284, 145 S. E., 563;
Highway Commission v. Young,
200 N. C., 603, 607, 158 S. E., 91; McQuillin, Municipal Corporations, sec. 1600, p. 517; 29 C.
J.
S., pp. 820, 821. Where the particular application of this principle requires an ascertainment of fact, whether by court or jury, when the facts are determined the issue no longer rests in fact hut in law.
In the case at bar the facts essential to judicial determination are not disputed. The judge, taking the whole evidence to be true, absolved all parties from bad faith, but found as a fact and repeated as a conclusion of law that the condemnation was sought for a private purpose; for the sole benefit of a group of home owners, indefinitely described, living outside the city limits. Either it is assumed that this group was not large enough to constitute a community, or to be credited with the necessity of a public use; or that the municipality was without power to exercise the right of eminent domain otherwise than for the exclusive benefit of its own inhabitants. The oral argument and discussion in the opposing briefs follow that pattern; and, disregarding matters not essential to disposition of the appeal, we may state the question before us in substantially the same form: (a) Whether the intended use of the right-of-way sought is public or private; and (b) Whether the City of Charlotte may, either under its Charter or the general public laws, extend its sewerage facilities to nonresidents living in the environment of the city
.and acquire by condemnation a right-of-way for that purpose: or, conversely stated, whether condemnation may be made only for the exclusive benefit of those living within the city limits.
1. The first question must be answered in the affirmative. The label of fact put upon a conclusion of law will not defeat appellate review.
We
will not attempt to give any definition of what is a public purpose or a public use applicable to all situations. Perhaps none can be devised which is not challengeable, since, with the progressive demands of society and changing concepts of governmental function, new subjects are constantly brought within the authority of eminent domain. The matter with which we are dealing doés not carry us that far.
Perhaps the simplest definition is found in 18 Am. Jur., page 666, sec. 38 (2), originally devised by Judge Cooley in practically the same form: “Takings, either by a municipal or a private corporation, for the purpose of enabling such corporation to furnish the public with some necessity or convenience which cannot readily be furnished without the aid of some governmental power, and which is required by the public as such, when the public has a legal right to make use of such necessity and convenience.”
If there was in the record any evidence to sustain the theory that the use of the sewer line was intended to be confined, or could be confined in the future, to the 65 or 70 persons presently dwelling in the area to be served, and was not now, nor could hereafter be accessible to the general public who seek residence there, the case might be different. But there is no such evidence, and the inferences are to the contrary.
The public nature of the project cannot be made to depend on a numerical count of those to be served or the smallness or largeness of a community.
Quoting again from 18 Am. Jur., “Eminent Domain,” sec. 40: “Similarly in those states in which use by the public is the test, the mere number of people who use or can use the property taken are not determinative of whether it constitutes a public use or not. It may suffice if very few have or may ever have occasion to use it.” See also C. J. S., “Eminent Domain,” page 827, sec. 31 (b).
“The use which will justify the taking of private property under the exercise of the right of eminent domain is the use by or for the government, the general public, or some portion thereof as such, and not the use by or for particular individuals or for the benefit of particular estates. The use, however, may be limited to the inhabitants of a small locality, but the benefit must be in common.” “It is not essential that the entire community nor even any considerable portion should directly enjoy or participate in an improvement in order to constitute a ‘public use.’ ”
Rindge Co. v. Los Angeles County,
262 U. S., 700, 67 Law Ed.,
1186. “The public use required need not be tbe use or benefit of the whole public or state or any large portion of it. It may be for the inhabitants of a small or restricted locality; but the use and benefit must be in common, not to particular individuals or estates.”
Miller v. Pulaski,
109 Va., 137, 63 S. E., 880, 883; McQuillin, Municipal Corporations, sec. 1600, page 521; Lewis, Eminent Domain, 3rd Ed., sec. 258. We are satisfied that the use to which it is proposed to put the land condemned is within these definitions.
The evidence developed nothing in common between the members of this community except the urgent communal necessity of a less offensive and more sanitary method of disposing of the sewage, and a co-operative effort to put the situation under the complete control of the city authorities. In so doing they only complied with the requirements of the City Charter, and the contribution made by members of the community to the original installation did not deprive the project of its public character.
Stratford v. City of Greensboro,
124 N. C., 127, 32 S. E., 394. When the line was complete and connected with the city sewerage system it became the property of the City of Charlotte by virtue of the statute, sec. 65, Charter of City of Charlotte,
supra,
and they became nothing more than individually paying customers under city regulation applicable alike to the general public, and were without any vestige of further control.
Condemnation was, therefore, not as charged by defense, a mere device to put the project in control of those who had neither the power to condemn nor the right to exercise the franchise.
2. The Charter of the City of Charlotte, cited
supra,
expressly provides for the extension of its public services, including that of water and sewerage, to those living beyond the city limits and for the acquisition of the facilities, including pipe lines used for said purpose. Where that right exists a condemnation may be made under the City Charter or under the General Statute relating to the power of municipalities. G. S., 160-204, 205. The cited sections expressly confer the power of extraterritorial condemnation where the municipality has the right to acquire the property.
The power of the Legislature to confer on a municipality the authority to extend to the public, beyond its own territorial limits, services similar to those enjoyed by its own inhabitants, such as light, water, sewerage, is well established.
Holmes v. Fayetteville,
197 N. C., 740, 150 S. E., 624; McQuillin on Municipal Corporations, sec. 1945. See citations, page 81, Vol. 5. Nothing that is said in
Williamson v. High Point,
213 N. C., 96, 195 S. E., 90, is in conflict with this authority, which is now exercised by the cited municipality and many others in the State of North Carolina. The case is easily distinguishable. There, the
municipality sought to finance its project under the 1935 Bond Revenue Act, which act limited municipalities proceeding thereunder to projects undertaken exclusively for the benefit of the inhabitants of the city, a limitation which the Court enforced. This and related cases must be considered within the frame of the facts presented and the applicable-law determinative of that controversy.
Municipalities are almost altogether creatures of the Legislature-rather than of the Constitution; and the Constitution imposes upon them no restrictions in this respect. If there could be any question of policy involved it is determined by the fact of numerous legislative grants of authority. Not only does a city expand its limits from the increasingly populous territory surrounding it, but it cannot afford to be indifferent to the problems produced by the congestion on its borders, the solution of which is often a matter of common interest to those living within the city and those immediately without. This condition is recognized in practically all jurisdictions, including our own. On the criminal side, municipalities have been allowed extra-territorial police power. Economically, they are protected by extra-territorial taxing regulations. As a matter of welfare they have often been given extra-territorial jurisdiction ; and, as in the present situation, they have been permitted extension of sewerage facilities. The town line means nothing to the breezes which blow across the city carrying malodorous exhalations, or to the minute wings laden with the germs of disease and death.
The statute operating
ex proprio vigore
needs no argument to support it. If any were needed it might be found in the recognition of the truth that a city cannot, any more than an individual, live Unto itself alone.
It is the opinion of the Court that the City of Charlotte, under the facts of this case and applicable law, has the right to exercise its power of eminent domain to condemn the lands and property rights described in the petition for the proposed use.
The judgment of the court below is reversed and the cause is remanded to the Superior Court of Mecklenburg County for judgment and further proceeding in accordance with this opinion.
Reversed and remanded.
Barnhill and Winborne, JJ., dissent.