Stacy, C. J.
Ve are bere dealing with the same project that was the subject of consideration in the companion case of
McGuinn v. High Point, ante,
449. What is there said in respect of the determinations pertaining to the navigability of the Yadkin River in North Carolina and the authority of the city of High Point to accede to the terms and conditions of the license issued by the Federal Power Commission will suffice for the similar determinations made in the instant case.
The present record contains the further specific finding of incompatibility between the obligations assumed by the city of High Point in agreeing to abide by all the conditions imposed in the license issued by the Federal Power Commission and its duties as a municipality.
The remaining question, then, and the principal one here, is whether the city of High Point can lawfully condemn (1) a portion of the County Home site and (2) the fifteen sections of the county highways of Yadkin County in the circumstances as shown by the record. The trial court answered in the negative and we cannot say there is error in the ruling.
First. The defendants concede that their right to condemn the 25 acres of lowland on the Yadkin County Home site may be doubtful. They cite no statutory authority for the right, either express or implied. However, they claim it as a matter of necessity or as not materially interfering with a prior right. See
Penn. Railroad Co.’s Appeal,
93 Pa., 150, on the doctrine of necessity; also
Easthampton v. County Comrs.,
154 Mass., 424, on the defendants’ suggestion of “balancing conveniences.”
The power of eminent domain, as generally understood, extends only to the right to condemn private property for public uses.
Wissler v. Power Co.,
158 N. C., 465, 74 S. E., 460;
Jeffress v. Greenville,
154 N. C., 490, 70 S. E., 919. It is for the General Assembly to say whether in the particular case or under certain conditions, the power shall be enlarged to embrace public property and property devoted to a public use as well as private property. 10 R. C. L., 198. The authorities are to the effect that a general authorization to exercise the power of eminent domain will not suffice in a case where property already dedicated to a public use is sought to be condemned for .another public use which is totally inconsistent with the first or former use.
R. R. v. R. R.,
83 N. C., 489; 20 C. J., 602. In such a case a specific legislative grant or one of unmistakable intent is required.
Vermont Hydroelectric Corp. v.
Dunn et al.,
95 Vt., 144, 112 Atl., 223, 12 A. L. R., 1495;
Minnesota Power & Light Co. v. State,
177 Minn., 343, 225 N. W., 164;
City of Albuquerque v. Garcia,
17 N. Mex., 445, 130 Pac., 118;
Village of Ridgewood v. Glen Rock,
15 N. J. Misc., 65, 188 Atl., 698. Especially insistent are the eases where the property sought to be condemned for a second public use is owned by an agency of the Government, or a subdivision thereof, and by it devoted to a state purpose.
City of St. Louis v. Moore,
269 Mo., 430, 190 S. W., 867.
It will be noted that the county property here sought to be condemned is already devoted to a public use. Its condemnation for a second inconsistent public use, which is necessarily destructive of the first, may not be accomplished except under legislative authority given in express terms or by necessary implication.
Fayetteville Street Ry. v. R. R.,
142 N. C., 423, 55 S. E., 345. Admittedly, the city of High Point is without such authority here.
Selma v. Nobles,
183 N. C., 322, 111 S. E., 543.
The precise question was before the Supreme Court of Pennsylvania in Appeal of Tyrone Township School District, 1 Monag. (Pa.), 20, 15 Atl., 667. There the board of directors of a school district undertook to condemn three-fourths of an acre of land on a farm consisting of 172 acres, belonging to the county and used for the care and support of the poor of the county, under a statute authorizing the board to condemn not more than an acre of land for school purposes. It was held that the terms of the statute were not sufficient to authorize the taking of property already appropriated to another public use.
To like effect is the decision in
City of Edwardsville v. Madison County,
251 Ill., 265, 96 N. E., 238, where the city of Edwardsville sought to open a street within its corporate limits through the Madison County poor farm. It was held that the municipality under its general grant of power had no authority to condemn for such a use the property of the county already appropriated to another public purpose.
There are, of course, variant circumstances which could easily tip the “nodding beam” in another direction. For example, where the property is not in actual public use or is not vital to such purpose, or where the additional easement would not seriously interfere with the first use.
Fayetteville Street Ry. v. R. R., supra; R. R. v. R. R., supra;
Annotation, 12 A. L. R., 1502. And further as bearing upon the flexibility of the rule, a distinction is made in some of the cases between property owned by an instrumentality of the State and devoted to a public use, when the rule is strictly observed, and property owned by a public-service corporation and likewise devoted to a public use, when the rule is somewhat relaxed, the reason being that in the former the public interest alone is supposed to prevail while in the latter the idea of private enterprise also plays a part.
City of St. Louis v. Moore, supra.
What is
bere said should be understood as having reference to the facts of the instant case as found by the trial court.
Yarborough v. Park Commission,
196 N. C., 284, 145 S. E., 563.
The rule as generally applied is stated with clarity by
Folger, J.,
in
The Matter of City of Buffalo,
68 N. Y., 167: “In determining whether a power generally given, is meant to have operation upon lands already devoted by legislative authority to a public purpose, it is proper to consider the nature of the prior public work, the public use to which it is applied, the extent to which that use would be impaired or diminished by the taking of such part of the land as may be demanded for the subsequent public use. If both uses may not stand together, with some tolerable interference which may be compensated for by damages paid; if the latter use, when exercised, must supersede the former; it is not to be implied from a general power given, without having in view a then existing and particular need therefor, that the Legislature meant to subject lands devoted to a public use already in exercise, to one which might thereafter arise. A legislative intent that there should be such an effect will not be inferred from a gift of power made in general terms. To defeat the attainment of an important public purpose to which lands have already been subjected, the legislative intent must unequivocally appear.
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Stacy, C. J.
Ve are bere dealing with the same project that was the subject of consideration in the companion case of
McGuinn v. High Point, ante,
449. What is there said in respect of the determinations pertaining to the navigability of the Yadkin River in North Carolina and the authority of the city of High Point to accede to the terms and conditions of the license issued by the Federal Power Commission will suffice for the similar determinations made in the instant case.
The present record contains the further specific finding of incompatibility between the obligations assumed by the city of High Point in agreeing to abide by all the conditions imposed in the license issued by the Federal Power Commission and its duties as a municipality.
The remaining question, then, and the principal one here, is whether the city of High Point can lawfully condemn (1) a portion of the County Home site and (2) the fifteen sections of the county highways of Yadkin County in the circumstances as shown by the record. The trial court answered in the negative and we cannot say there is error in the ruling.
First. The defendants concede that their right to condemn the 25 acres of lowland on the Yadkin County Home site may be doubtful. They cite no statutory authority for the right, either express or implied. However, they claim it as a matter of necessity or as not materially interfering with a prior right. See
Penn. Railroad Co.’s Appeal,
93 Pa., 150, on the doctrine of necessity; also
Easthampton v. County Comrs.,
154 Mass., 424, on the defendants’ suggestion of “balancing conveniences.”
The power of eminent domain, as generally understood, extends only to the right to condemn private property for public uses.
Wissler v. Power Co.,
158 N. C., 465, 74 S. E., 460;
Jeffress v. Greenville,
154 N. C., 490, 70 S. E., 919. It is for the General Assembly to say whether in the particular case or under certain conditions, the power shall be enlarged to embrace public property and property devoted to a public use as well as private property. 10 R. C. L., 198. The authorities are to the effect that a general authorization to exercise the power of eminent domain will not suffice in a case where property already dedicated to a public use is sought to be condemned for .another public use which is totally inconsistent with the first or former use.
R. R. v. R. R.,
83 N. C., 489; 20 C. J., 602. In such a case a specific legislative grant or one of unmistakable intent is required.
Vermont Hydroelectric Corp. v.
Dunn et al.,
95 Vt., 144, 112 Atl., 223, 12 A. L. R., 1495;
Minnesota Power & Light Co. v. State,
177 Minn., 343, 225 N. W., 164;
City of Albuquerque v. Garcia,
17 N. Mex., 445, 130 Pac., 118;
Village of Ridgewood v. Glen Rock,
15 N. J. Misc., 65, 188 Atl., 698. Especially insistent are the eases where the property sought to be condemned for a second public use is owned by an agency of the Government, or a subdivision thereof, and by it devoted to a state purpose.
City of St. Louis v. Moore,
269 Mo., 430, 190 S. W., 867.
It will be noted that the county property here sought to be condemned is already devoted to a public use. Its condemnation for a second inconsistent public use, which is necessarily destructive of the first, may not be accomplished except under legislative authority given in express terms or by necessary implication.
Fayetteville Street Ry. v. R. R.,
142 N. C., 423, 55 S. E., 345. Admittedly, the city of High Point is without such authority here.
Selma v. Nobles,
183 N. C., 322, 111 S. E., 543.
The precise question was before the Supreme Court of Pennsylvania in Appeal of Tyrone Township School District, 1 Monag. (Pa.), 20, 15 Atl., 667. There the board of directors of a school district undertook to condemn three-fourths of an acre of land on a farm consisting of 172 acres, belonging to the county and used for the care and support of the poor of the county, under a statute authorizing the board to condemn not more than an acre of land for school purposes. It was held that the terms of the statute were not sufficient to authorize the taking of property already appropriated to another public use.
To like effect is the decision in
City of Edwardsville v. Madison County,
251 Ill., 265, 96 N. E., 238, where the city of Edwardsville sought to open a street within its corporate limits through the Madison County poor farm. It was held that the municipality under its general grant of power had no authority to condemn for such a use the property of the county already appropriated to another public purpose.
There are, of course, variant circumstances which could easily tip the “nodding beam” in another direction. For example, where the property is not in actual public use or is not vital to such purpose, or where the additional easement would not seriously interfere with the first use.
Fayetteville Street Ry. v. R. R., supra; R. R. v. R. R., supra;
Annotation, 12 A. L. R., 1502. And further as bearing upon the flexibility of the rule, a distinction is made in some of the cases between property owned by an instrumentality of the State and devoted to a public use, when the rule is strictly observed, and property owned by a public-service corporation and likewise devoted to a public use, when the rule is somewhat relaxed, the reason being that in the former the public interest alone is supposed to prevail while in the latter the idea of private enterprise also plays a part.
City of St. Louis v. Moore, supra.
What is
bere said should be understood as having reference to the facts of the instant case as found by the trial court.
Yarborough v. Park Commission,
196 N. C., 284, 145 S. E., 563.
The rule as generally applied is stated with clarity by
Folger, J.,
in
The Matter of City of Buffalo,
68 N. Y., 167: “In determining whether a power generally given, is meant to have operation upon lands already devoted by legislative authority to a public purpose, it is proper to consider the nature of the prior public work, the public use to which it is applied, the extent to which that use would be impaired or diminished by the taking of such part of the land as may be demanded for the subsequent public use. If both uses may not stand together, with some tolerable interference which may be compensated for by damages paid; if the latter use, when exercised, must supersede the former; it is not to be implied from a general power given, without having in view a then existing and particular need therefor, that the Legislature meant to subject lands devoted to a public use already in exercise, to one which might thereafter arise. A legislative intent that there should be such an effect will not be inferred from a gift of power made in general terms. To defeat the attainment of an important public purpose to which lands have already been subjected, the legislative intent must unequivocally appear. If an implication is to be relied upon, it must appear from the face of the enactment, or from the application of it to the particular subject matter of it, so that by reasonable intendment, some especial object sought to be attained by the exercise of the power granted could not be reached in any other place or manner.”
In this view of the matter, the defendants stressfully insisted upon a favorable finding in the court below, but the determination was against them, and they are bound by it on appeal.
Power Co. v. Power Co.,
171 N. C., 248, 88 S. E., 349.
Second. What has been said in respect of the County Home site applies
a fortiori,
or at least with equal force, to the sections of the county highways which are sought to be flooded or taken.
In the case of
In re Southwestern State Normal School,
213 Pa., 244, 62 Atl., 908, the State Normal School purchased a number of lots for use as a campus and undertook to condemn the streets and alleys running through them and adjoining them on the north and south. Speaking to the question here under consideration, the Court said: “What the appellant seeks to do is, not to take land belonging to and in the use of a private owner, but is to condemn property already dedicated to public use and used by the public as public highways, and to devote the same to what it claims to be another public use. Property already devoted to public use, including franchises, is subject to eminent domain, and may be taken for other public uses; but, while this is true, it cannot be
so taken without legislative authority expressly conferred 03; arising by necessary implication.”
Likewise, in
City of St. Louis v. Moore et al., supra,
the city of St. Louis sought to condemn for street purposes land used as a playground in connection with a public school. In denying the right to condemn, the Court cites a long list of cases in support of the proposition that property devoted to a public use, more strictly speaking for state purposes, may not be condemned for a second public use without authority expressly granted or which necessarily proceeds as an inference from such a grant.
The suggestion is advanced by the defendants that the city of High Point has by necessary implication legislative authority to condemn the highways in question. As tending to support this position, they point out that sections 2791 and 2792 of the Consolidated Statutes are made available to the city of High Point by express provision in the city charter, and that the present undertaking has been specifically approved by the Yalidating Act of 1939, ch. 117, Public Laws 1939.
We
find nothing in these statutes of sufficient definiteness to warrant the suggested inference. The designated sections of the Consolidated Statutes deal only with the general power of condemnation, and the Yalidating Act of 1939, which took effect on 16 March, 1939 (four days prior to the amendatory and supplemental bond resolution of the defendant city) purports to validate bonds theretofore issued by local units- for the purpose of financing or aiding in the financing of PWA projects, including all proceedings for the authorization and issuance of bonds, and for their sale, execution and delivery. It contains nothing in reference to the power of eminent domain.
Upon the findings of the trial court, which have the force and effect of a verdict, we cannot say there is error in the judgment rendered thereon.
Affirmed.