Progress Energy Carolinas, Inc. v. Strickland

640 S.E.2d 856, 181 N.C. App. 610, 2007 N.C. App. LEXIS 404
CourtCourt of Appeals of North Carolina
DecidedFebruary 20, 2007
DocketCOA06-20
StatusPublished
Cited by4 cases

This text of 640 S.E.2d 856 (Progress Energy Carolinas, Inc. v. Strickland) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Progress Energy Carolinas, Inc. v. Strickland, 640 S.E.2d 856, 181 N.C. App. 610, 2007 N.C. App. LEXIS 404 (N.C. Ct. App. 2007).

Opinions

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 [612]*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[613]*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 [614]*614whether the law allows petitioner to condemn the proposed easement for an electric transmission line.

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Progress Energy Carolinas, Inc. v. Strickland
640 S.E.2d 856 (Court of Appeals of North Carolina, 2007)

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Bluebook (online)
640 S.E.2d 856, 181 N.C. App. 610, 2007 N.C. App. LEXIS 404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/progress-energy-carolinas-inc-v-strickland-ncctapp-2007.