Home/Supreme Court of North Carolina/N. C. State Highway Commission v. Farm Equipment Co.

N. C. State Highway Commission v. Farm Equipment Co.

189 S.E.2d 272, 281 N.C. 459, 1972 N.C. LEXIS 1086
CourtSupreme Court of North Carolina
DecidedJune 16, 1972
Docket87
StatusPublished
Cited by15 cases

This text of 189 S.E.2d 272 (N. C. State Highway Commission v. Farm Equipment Co.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
N. C. State Highway Commission v. Farm Equipment Co., 189 S.E.2d 272, 281 N.C. 459, 1972 N.C. LEXIS 1086 (N.C. 1972).

Opinion

SHARP, Justice.

At the outset we note that it is immaterial whether the proceeding before Judge Martin be considered (1) a pre-trial hearing under G.S. 136-108 (1965) or (2) a motion to dismiss, converted under G.S. 1A-1, Rule 12(b) (1969) into a motion for summary judgment by the introduction of “matters outside the pleading.” In either event, it was Judge Martin’s function to decide all questions of fact and adjudicate Commission’s controverted right to condemn Tracts One and Two for the purpose specified. If he concluded that Commission lacked the power it sought to exercise, it was his duty to dismiss the action as to Tracts One and Two. See Kaperonis v. Highway Commission, 260 N.C. 587, 133 S.E. 2d 464 (1963).

The basic questions presented by the exceptions and assignments of error which appellant brings forward are these:

(1) Can Commission, in the exercise of its right to condemn property for highway purposes, take from defendant Tracts One and Two, which will not be used in the construction of Project itself, in order to exchange them for property *468 belonging to Southern which will be a part of Project’s right-of-way?
(2) If so, can Commission condemn Tracts One and Two in fee and convey them in fee to Southern ?

These questions involve the principle of “substitute condemnation,” that is, a transaction in which the State or an agency with the power of eminent domain, A, takes land under an agreement to compensate its owner, B7" with land to be taken in condemnation proceedings from a third person, C, instead of with money. The problem is well stated in 2A Nichols on Eminent Domain § 7.226 (3d Ed. 1970) :

“Under certain extraordinary conditions the conventional method of compensating an owner whose property is taken by proceedings in eminent domain by paying him the value thereof is completely inadequate. To do complete justice to such an owner and, what is even more important, to meet the practical problems which arise by reason of the taking, it becomes necessary to furnish such owner with other lands as a substitute for the lands which have been taken. The question then arises whether such substituted lands may be acquired by eminent domain by the original condemnor . . . for the use of the owner who has been forced to give up his property for a conceded public use. Is such secondary acquisition of property to be considered for a public use ?”

Any exercise of the power of eminent domain is subject to the constitutional prohibition against the taking of property for private uses. “Private property can be taken by the exercise of the power of eminent domain only where the taking is for a public use.” Vance County v. Royster, 271 N.C. 53, 59, 155 S.E. 2d 790, 795 (1967). Due process of law requires that private property be taken under the power of eminent domain only for a public use. Fallbrook Irrigation District v. Bradley, 164 U.S. 112, 161, 41 L.Ed. 369, 389, 17 S.Ct. 56, 64 (1896).

In controversies concerning substitute condemnation the ultimate condemnee, C, will usually contend, as defendant does here, that his land is being taken for a private use and that the taking is not necessary. See the excellent discussion of Substitute Condemnation in 54 Cal. L. Rev. 1097 (1966). See also Annot., 20 A.L.R. 3d 862 (1968).

*469

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Bluebook (online)
189 S.E.2d 272, 281 N.C. 459, 1972 N.C. LEXIS 1086, Counsel Stack Legal Research, https://law.counselstack.com/opinion/n-c-state-highway-commission-v-farm-equipment-co-nc-1972.