{ "id": 11866490, "name": "THE CITY OF CHARLOTTE, Plaintiff v. J. ERNEST COOK; and wife, RUBY H. COOK, Defendants; THE CITY OF CHARLOTTE, Plaintiff v. J. ERNEST COOK; and wife, RUBY H. COOK, and CRESCENT ELECTRIC MEMBERSHIP CORPORATION, Defendants", "name_abbreviation": "City of Charlotte v. Cook", "decision_date": "1997-01-21", "docket_number": "No. COA96-364", "first_page": "205", "last_page": "209", "citations": [ { "type": "official", "cite": "125 N.C. App. 205" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "173 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562575 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0556-01" ] }, { "cite": "52 P. 127", "category": "reporters:state_regional", "reporter": "P.", "year": 1898, "opinion_index": 0 }, { "cite": "169 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "196", "parenthetical": "quoting City and County of San Francisco v. Grote, 52 P. 127 (Cal. 1898), aff'd, 276 N.C. 556, 173 S.E.2d 909 (1970" } ], "opinion_index": 0 }, { "cite": "5 N.C. App. 684", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553209 ], "year": 1969, "pin_cites": [ { "page": "689", "parenthetical": "quoting City and County of San Francisco v. Grote, 52 P. 127 (Cal. 1898), aff'd, 276 N.C. 556, 173 S.E.2d 909 (1970" } ], "opinion_index": 0, "case_paths": [ "/nc-app/5/0684-01" ] }, { "cite": "532 P.2d 691", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 5286381 ], "weight": 3, "year": 1975, "pin_cites": [ { "page": "693" }, { "page": "692" }, { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/mont/166/0330-01" ] }, { "cite": "110 S.E. 583", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1922, "pin_cites": [ { "page": "584" } ], "opinion_index": 0 }, { "cite": "183 N.C. 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655275 ], "year": 1922, "pin_cites": [ { "page": "76" } ], "opinion_index": 0, "case_paths": [ "/nc/183/0068-01" ] }, { "cite": "202 So. 2d 748", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9800733, 9800830 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/so2d/202/0748-01", "/so2d/202/0748-02" ] }, { "cite": "194 So. 2d 658", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9808678 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/so2d/194/0658-01" ] }, { "cite": "189 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "280", "parenthetical": "quoting Brest v. Jacksonville Expressway Authority, 194 So. 2d 658 (Fla. App. 1967), aff'd, 202 So. 2d 748 (Fla. 1967)" } ], "opinion_index": 0 }, { "cite": "281 N.C. 459", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575314 ], "year": 1972, "pin_cites": [ { "page": "473", "parenthetical": "quoting Brest v. Jacksonville Expressway Authority, 194 So. 2d 658 (Fla. App. 1967), aff'd, 202 So. 2d 748 (Fla. 1967)" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0459-01" ] }, { "cite": "466 S.E.2d 719", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "342 N.C. 648", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795982 ], "year": 1996, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0648-01" ] }, { "cite": "456 S.E.2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "846" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 609", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920091 ], "year": 1995, "pin_cites": [ { "page": "615" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0609-01" ] }, { "cite": "433 S.E.2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "473", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 857", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524424 ], "year": 1993, "pin_cites": [ { "page": "859", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0857-01" ] } ], "analysis": { "cardinality": 576, "char_count": 9648, "ocr_confidence": 0.756, "pagerank": { "raw": 2.432066723774206e-07, "percentile": 0.8021299697395485 }, "sha256": "a338967f749605fac31f4d8e51bf4c3f1efd508adc52ce8c658bc1d6232fde2a", "simhash": "1:8706c043dceb9ec3", "word_count": 1612 }, "last_updated": "2023-07-14T22:18:02.941264+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and SMITH concur." ], "parties": [ "THE CITY OF CHARLOTTE, Plaintiff v. J. ERNEST COOK; and wife, RUBY H. COOK, Defendants THE CITY OF CHARLOTTE, Plaintiff v. J. ERNEST COOK; and wife, RUBY H. COOK, and CRESCENT ELECTRIC MEMBERSHIP CORPORATION, Defendants" ], "opinions": [ { "text": "LEWIS, Judge.\nThe question presented in this appeal is whether the trial court erred in allowing the City of Charlotte (\u201cthe City\u201d) to condemn a portion of property belonging to defendant J. Ernest Cook and defendant Ruby H. Cook (\u201cthe Cooks\u201d) in fee simple in order to construct a pipeline. Because the City\u2019s actions constitute an abuse of discretion, we reverse.\nThe City instituted these condemnation actions under section 7.81 of its charter against the Cooks, the owners of the property, and Crescent Electric Membership Corporation, the holder of an option to purchase a portion of the property. Section 7.81 grants the City the power of eminent domain for \u201cthe acquisition of property to be used for . . . water supply and distribution systems\u201d according to the procedure outlined in Article 9, Chapter 136 of the North Carolina General Statutes.\nThe City sought to acquire a seventy foot wide strip of the Cook\u2019s dairy farm (\u201cCook property\u201d) by condemnation of the fee to house a pipeline and various other lines and cables for a new raw water treatment plant in North Mecklenburg County being constructed by the Charlotte-Mecklenburg Utility Department (\u201cCMUD\u201d). The proposed condemnation would cut off a fifteen acre tract of land from the rest of the farm. The defendants opposed the condemnation in fee alleging, inter alia, that the public purpose could be accomplished by an easement. After this matter was heard at the 5 October 1995 term of Mecklenburg County Superior Court, the trial court concluded that plaintiff was entitled to condemn the Cook property in fee simple. Defendants appeal.\nDefendants maintain that the City abused its discretion in condemning the Cook property in fee simple because it is not necessary. They contend that an easement would be sufficient to serve the public purpose. We agree.\n\u201cGenerally, once a public purpose is established the taking is not reviewable by the courts. However, allegations of arbitrary and capricious conduct or of abuse of discretion on the part of the condemnor render the issue subject to judicial review.\u201d Dept. of Transportation v. Overton, 111 N.C. App. 857, 859, 433 S.E.2d 471, 473 (1993) (citations omitted). An abuse of discretion results when an act is \u201c \u2018not done according to reason or judgment, but depending upon the will alone\u2019 and \u2018done without reason.\u2019 \u201d Dare County Bd. of Education v. Sakaria, 118 N.C. App. 609, 615, 456 S.E.2d 842, 846 (1995), aff'd per curiam, 342 N.C. 648, 466 S.E.2d 719 (1996) (citations omitted).\nTo our knowledge, no other North Carolina appellate court has dealt directly with the issue of whether a condemning authority abuses its discretion by taking a greater estate than is necessary for the public purpose. However, other Courts have recognized the principle that \u201c \u2018the power to take private property is in every case limited to such and so much property as is necessary for the public use in question.\u2019 \u201d Highway Comm. v. Equipment Co., 281 N.C. 459, 473, 189 S.E.2d 272, 280 (1972) (quoting Brest v. Jacksonville Expressway Authority, 194 So. 2d 658 (Fla. App. 1967), aff'd, 202 So. 2d 748 (Fla. 1967)); accord Jennings v. Highway Comm., 183 N.C. 68, 76, 110 S.E. 583, 584 (1922). Due to the lack of North Carolina law on this topic, we have looked to other jurisdictions for guidance.\nIn a similar case, the Supreme Court of Montana has held that a county cannot condemn fee simple title to a defendant\u2019s property when an easement would be sufficient to accomplish the public use. See Silver Bow County v. Hafer, 532 P.2d 691, 693 (Mont. 1975). In so holding, that court observed, \u201cIt is well established that a condemning authority can not acquire a greater interest or estate in the condemned property than the public use requires.\u201d Id. at 692. To support this assertion and its holding, the court quoted the following language from 3 Nichols on Eminent Domain \u00a7 9.2[2]:\n\u201cIt necessarily follows from the principle that property cannot constitutionally be taken by eminent domain except for the public use, that no more property can be taken by eminent domain than the public use requires, since all that might be appropriated in excess of the public needs would not be taken for the public use. While considerable latitude is allowed in providing for the anticipated expansion of the requirements of the public, the rule itself is well established, and applies both to the amount of property to be acquired for public use and to the estate or interest acquired in such property. If an easement will satisfy the public needs, to take the fee would be unjust to the owner, who is entitled to retain whatever the public needs do not require, and to the public, which should not be obliged to pay for more than it needs . . ..\u201d\nId. at 693.\nWe adopt the reasoning of the Montana court and hold that it is an abuse of discretion for a condemning authority to condemn a greater estate in land than is necessary to accomplish the intended public purpose. However, whether such an abuse of discretion has occurred should be determined according to the facts of each case.\nIn the present case, the trial court found the following reasons for the City\u2019s taking the property in fee simple:\na. the depths (up to 40 feet deep) at which the 60-inch diameter pipes will be installed;\nb. the number and nature of the facilities that will be located within the pipeline route;\nc. the ability to exercise effective control over all uses of the pipeline route by having the ability to determine in advance any proposed used [sic] of the pipeline route which would be permitted by the City;\nd. the ability to protect the pipeline facilities more effectively than if the City of Charlotte only had an easement;\ne. the cost for acquisition of a fee simple interest were [sic] not anticipated to be significantly different than for the acquisition of an easement;\nf. the ability to select the most economical electric power supplier.\nWe find nothing in these facts which would justify taking the Cook\u2019s property in fee simple rather than by acquiring an easement. In fact, after review of the record, we find no justification whatever for the City\u2019s fee simple condemnation. The taking by a city of more than can be justified and the paying of tax dollars is not only wasteful but unwise, arbitrary and arguably unconstitutional. Should the facility be abandoned in the future, the farm should not be needlessly divided by a strip of city land. A specially crafted easement will provide the control and protection the City desires with less injury to the Cooks. Furthermore, the equality of cost to the City is no reason to wrongfully deprive an individual of his or her property, nor is the right to select an electrical provider.\nAdditionally, our conclusion that an easement is all the City needed to acquire is supported by statements of City representatives themselves at a 12 September 1994 City Council Meeting, the minutes of which are an exhibit to the record. At the meeting, the director of CMUD acknowledged that although it was not preferable, it was technically possible to accomplish what was needed with an easement. A deputy city attorney stated that it was \u201cpossible that an easement could be used.\u201d\nWe hold that the City abused its discretion by taking fee simple title to the Cook\u2019s property because an easement is sufficient to carry out the public use intended. \u201c \u2018It is not a trivial thing to take another\u2019s land.\u2019 \u201d Highway Comm. v. School, 5 N.C. App. 684, 689, 169 S.E.2d 193, 196 (1969) (quoting City and County of San Francisco v. Grote, 52 P. 127 (Cal. 1898), aff\u2019d, 276 N.C. 556, 173 S.E.2d 909 (1970).\nAccordingly, the trial court\u2019s judgments vesting fee simple title in plaintiff are vacated. However, nothing in this opinion shall be read to prohibit the City from seeking an easement. \u2022\nJudgment vacated.\nJudges WALKER and SMITH concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "City Attorney Dewitt F. McCarley, by Assistant City Attorney R. Susanne Knox and Deputy City Attorney H. Michael Boyd, for plaintiff-appellee.", "Bailey, Patterson, Caddell, Hart & Bailey, P.A., by H. Morris Caddell, Jr., for defendants-appellants J. Ernest Cook and Ruby H. Cook; William R. Pope and Crisp, Page & Currin, L.L.P., by Cynthia M. Currin, for defendant-appellant Crescent Electric Membership Corporation." ], "corrections": "", "head_matter": "THE CITY OF CHARLOTTE, Plaintiff v. J. ERNEST COOK; and wife, RUBY H. COOK, Defendants THE CITY OF CHARLOTTE, Plaintiff v. J. ERNEST COOK; and wife, RUBY H. COOK, and CRESCENT ELECTRIC MEMBERSHIP CORPORATION, Defendants\nNo. COA96-364\n(Filed 21 January 1997)\nEminent Domain \u00a7 29 (NCI4th)\u2014 condemnation for water system \u2014 fee simple title \u2014 easement sufficient \u2014 abuse of discretion\nThe trial court\u2019s judgments vesting fee simple title in plaintiff were vacated where the City sought to acquire by condemnation a seventy-foot wide strip of defendant\u2019s dairy farm for a pipeline and various other lines and cables for a water treatment plant, which would cut off a fifteen-acre tract of land from the rest of the farm. There is nothing in the facts found by the court which would justify taking the property in fee simple rather than by acquiring an easement, and the conclusion that an easement is all the City needed is supported by statements of City representatives at a City Council meeting. It is an abuse of discretion for a condemning authority to condemn a greater estate in land than is necessary to accomplish the intended public purpose.\nAm Jur 2d, Eminent Domain \u00a7\u00a7 385, 386.\nAppeal by defendants from judgments entered 6 December 1995 by Judge Claude S. Sitton in Mecklenburg County Superior Court. Heard in the Court of Appeals 4 December 1996.\nCity Attorney Dewitt F. McCarley, by Assistant City Attorney R. Susanne Knox and Deputy City Attorney H. Michael Boyd, for plaintiff-appellee.\nBailey, Patterson, Caddell, Hart & Bailey, P.A., by H. Morris Caddell, Jr., for defendants-appellants J. Ernest Cook and Ruby H. Cook; William R. Pope and Crisp, Page & Currin, L.L.P., by Cynthia M. Currin, for defendant-appellant Crescent Electric Membership Corporation." }, "file_name": "0205-01", "first_page_order": 243, "last_page_order": 247 }