{
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  "name": "LEXINGTON TELEPHONE COMPANY, INC., Plaintiff v. DAVIDSON WATER, INC., Defendant",
  "name_abbreviation": "Lexington Telephone Co. v. Davidson Water, Inc.",
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  "casebody": {
    "judges": [
      "Judges WALKER and McGEE concur."
    ],
    "parties": [
      "LEXINGTON TELEPHONE COMPANY, INC., Plaintiff v. DAVIDSON WATER, INC., Defendant"
    ],
    "opinions": [
      {
        "text": "COZORT, Judge.\nPlaintiff appeals from judgment denying recovery in quantum meruit. Plaintiff (a telephone utility) located its underground cable lines for defendant (a water utility), after normal business hours, over a period of approximately fourteen months. Defendant then refused to pay for the after-hours cable locations, claiming it was under no obligation to make such payment pursuant to the Underground Damage Prevention Act (\u201cAct\u201d or \u201cChapter 87\u201d), N.C. Gen. Stat. \u00a7 87-100 to \u00a7 87-114 (1994). Plaintiff argued it was due compensation for marking its cable. The trial court, sitting without a jury, concluded that the Act prevents plaintiff from charging defendant for locating its underground cables when the location of such lines is necessary to assure the excavating utility\u2019s maintenance of service to customers. We affirm.\nPlaintiff, Lexington Telephone Company, Inc., is a public telecommunications utility. Defendant, Davidson Water, Inc., provides water to customers in Davidson County, North Carolina, through underground pipelines. Plaintiff\u2019s underground cables and defendant\u2019s underground pipes are often in close proximity to one another. Several times between 10 July 1992 and 17 September 1993, after \u201cnormal working hours,\u201d defendant alerted plaintiff that it needed to perform emergency excavations on its underground pipes. Prior to each excavation, defendant requested that plaintiff locate and mark the positions of its underground cables. Locating and marking cable is done in this manner to avoid accidental damage during excavations.\nPlaintiff did in fact mark its cables in response to defendant\u2019s requests during the period in question. Because performance of the cable locations occurred outside of normal working hours, plaintiff paid its employees additional compensation. In response to the after-hours requests, plaintiff billed the defendant $5,206.00 for services rendered. (During normal business hours, plaintiff did not attempt to charge defendant for finding its cable.) Defendant refused to pay for the after-hours cable locations. In response, plaintiff filed this action in quantum meruit, seeking payment for marking the cable. Plaintiff maintains the after-hours service was compensable, with costs recoverable in quantum meruit. We disagree.\nAn action in quantum meruit is based upon the equitable principle that a person should not be enriched unjustly at the expense of another. Atlantic C.L.R. Co. v. State Highway Comm., 268 N.C. 92, 96, 150 S.E.2d 70, 73 (1966). However, quantum, meruit will not lie if services are rendered pursuant to a preexisting statutory obligation. Id. The polestar of plaintiffs argument is that the Underground Damage Prevention Act\u2019s cable location provisions do not apply here. We find plaintiffs premise is flawed, for by the plain language of the Act, Chapter 87 does apply to the instant situation.\nThe Act addresses logistical problems which arise when excavation is necessary in the vicinity of a utility company\u2019s underground cable lines. Utility companies normally lay their individual cables in substantially the same location as those of other utility companies. For a utility to undertake excavations, it must know the position of other cables or lines in an area. The Act outlines the framework that should be followed prior to excavating in an area where underground utility lines are present. Generally, a person planning to excavate near underground utility lines must provide at least two days\u2019 notice to the utility. N.C. Gen. Stat. \u00a7 87-102 (1994). Once notified, the onus is on the utility company to locate and describe all of its lines to the excavating party. N.C. Gen. Stat. \u00a7 87-107 (1994). Failure to identify proprietary cable lines, after a proper request by the excavating party, absolves an excavator from liability for damage to the notified utility\u2019s line. N.C. Gen. Stat. \u00a7 87-108 (1994).\nTwo days\u2019 notice is not always required. The section entitled \u201cExceptions\u201d specifically exempts from a strict notice requirement emergency excavations done to \u201cassure the continuity of utility services.\u201d N.C. Gen. Stat. \u00a7 87-106(4) (1994). In such an emergency situation, notice must be given \u201cas soon as is reasonably possible.\u201d Id. Plaintiff\u2019s own evidence indicates defendant\u2019s requests for underground cable location were made in response to emergency situations. Emergency situations are directly addressed by \u00a7 87-106, entitled \u201cExceptions.\u201d The trial court did not find defendant\u2019s notice unreasonable. It merely recognized that defendant\u2019s requests were \u201cmade at a time other than plaintiff\u2019s normal business hours.\u201d The Act delineates no such \u201cnormal business hour\u201d requirement. In its judgment, the trial court found and concluded that \u201cthe defendant [had] notified the plaintiff, in accordance with N.C.G.S. 87-106 . . . .\u201d\nIt is well established that \u201c \u2018[w]here the trial judge sits as the trier of facts, his findings of fact are conclusive on appeal when supported by competent evidence.\u2019 \u201d Institution Food House v. Circus Hall of Cream, 107 N.C. App. 552, 556, 421 S.E.2d 370, 372 (1992) (quoting General Specialties Co. v. Teer Co., 41 N.C. App. 273, 275, 254 S.E.2d 658, 660 (1979)). Our review of the record in this case indicates that ample evidence exists to support the trial court\u2019s finding of fact on the notice issue.\nThe remaining question is whether the trial court correctly determined, as a conclusion of law, that a properly notified utility may not assess a fee for locating proprietary lines for an excavating party. In reviewing the decision of a trial court sitting without a jury, we must determine \u201c \u2018whether there was competent evidence to support its findings of fact and whether its conclusions of law were proper in light of such facts.\u2019 \u201d Chemical Realty Corp. v. Home Fed\u2019l Savings & Loan, 84 N.C. App. 27, 37, 351 S.E.2d 786, 792 (1987) (quoting In re Norris, 65 N.C. App. 269, 310 S.E.2d 25 (1983), disc. review denied, 310 N.C. 744, 315 S.E.2d 703 (1984)).\nWe hold the trial court correctly concluded that the issues involved here are resolvable by the Act. \u201cIn matters of statutory construction, the task of the courts is to ensure that the purpose of the Legislature, the legislative intent, is accomplished. The best indicia of that legislative purpose axe the language of the act and what the act seeks to accomplish.\u201d Wagoner v. Hiatt, 111 N.C. App. 448, 450, 432 S.E.2d 417, 418 (1993). \u201cA court should always construe the provisions of a statute in a manner which will tend to prevent it from being circumvented. If the rule were otherwise, the ills which prompted the statute\u2019s passage would not be redressed.\u201d Campbell v. First Baptist Church of Durham, 298 N.C. 476, 484, 259 S.E.2d 558, 564 (1979) (citation omitted). The essence of Chapter 87 is captured by its short title, the \u201cUnderground Damage Prevention Act.\u201d On its face, this title suggests that the Legislature intended the Act to serve as a mechanism for the orderly preservation of utility services to customers.\nOur analysis of the Act and review of the record supports the trial court\u2019s conclusion of law that plaintiff is not entitled to'a fee for utility line location. Section 87-107 of the Act, titled \u201cDuties of the utility owners,\u201d states that a notified utility \u201cshall, before the proposed start of excavating,\u201d provide the requested cable location information to the excavating party. (Emphasis added.) \u201cShall\u201d is an obligatory term. Allowing the locating party to charge the excavator would frustrate the plain intent of the Act.\nSo long as the excavating party provides notice in conformance with Chapter 87, the Act prohibits the locating utility from charging the party making the request. We therefore hold that the trial court\u2019s legal conclusions regarding the Act were properly based upon, and consistent with, its findings of fact. The trial court\u2019s judgment is\nAffirmed.\nJudges WALKER and McGEE concur.",
        "type": "majority",
        "author": "COZORT, Judge."
      }
    ],
    "attorneys": [
      "Stoner, Bowers & Gray, P.A., by Bob W. Bowers, for plaintiff appellant.",
      "Hedrick Harp & Michael, by Robert C. Hedrick; and Womble Carlyle Sandridge & Rice, by Roddey M. Lig\u00f3n, Jr., for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "LEXINGTON TELEPHONE COMPANY, INC., Plaintiff v. DAVIDSON WATER, INC., Defendant\nNo. COA94-1402\n(Filed 2 April 1996)\nUtilities \u00a7 2 (NCI4th)\u2014 marking of utility lines after business hours \u2014 plaintiff not entitled to compensation\nThe trial court properly determined pursuant to the Underground Damage Prevention Act, N.C.G.S. \u00a7 87-100 et seq., that plaintiff telephone utility could not charge defendant water utility for marking its underground cable lines for defendant after business hours where defendant requested the location of plaintiff\u2019s lines in order to make emergency excavations to assure the continuity of utility services. N.C.G.S. \u00a7 87-106.\nAm Jur 2d, Public Utilities \u00a7 9.\nLiability of one excavating in highway for injury to public utility cables, conduits, or the like. 73 ALR3d 987.\nAppeal by plaintiff from judgment entered 25 October 1994 by Judge Samuel A. Cathey in Davidson County District Court. Heard in the Court of Appeals 22 August 1995.\nStoner, Bowers & Gray, P.A., by Bob W. Bowers, for plaintiff appellant.\nHedrick Harp & Michael, by Robert C. Hedrick; and Womble Carlyle Sandridge & Rice, by Roddey M. Lig\u00f3n, Jr., for defendant appellee."
  },
  "file_name": "0177-01",
  "first_page_order": 213,
  "last_page_order": 217
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