{ "id": 11143973, "name": "STATE OF NORTH CAROLINA, Plaintiff v. COASTLAND CORPORATION, Defendant", "name_abbreviation": "State v. Coastland Corp.", "decision_date": "1999-07-20", "docket_number": "No. COA98-1067", "first_page": "269", "last_page": "277", "citations": [ { "type": "official", "cite": "134 N.C. App. 269" } ], "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": "N.C. Gen. Stat. \u00a7 136-103", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 1998, "pin_cites": [ { "page": "(a)" }, { "page": "(c)" }, { "page": "(b)" }, { "page": "(d)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 146-24", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 1991, "pin_cites": [ { "page": "(a)" }, { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "167 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1969, "pin_cites": [ { "page": "387" }, { "page": "387" }, { "page": "389" } ], "opinion_index": 0 }, { "cite": "275 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558632 ], "weight": 3, "year": 1969, "pin_cites": [ { "page": "331" }, { "page": "331" }, { "page": "334" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0328-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-341", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "parenthetical": "d" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 146-24.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "opinion_index": 0 }, { "cite": "134 N.C. App. 343", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11144480 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc-app/134/0343-01" ] }, { "cite": "224 S.E.2d 567", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 690", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572697 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0690-01" ] } ], "analysis": { "cardinality": 755, "char_count": 20212, "ocr_confidence": 0.762, "pagerank": { "raw": 2.2269389344706595e-07, "percentile": 0.7783585066156367 }, "sha256": "65a2de0eef84282da12af79d85260825ddf929186034b0e3f87d33da76b58556", "simhash": "1:9a32f12894eede40", "word_count": 3174 }, "last_updated": "2023-07-14T15:28:46.713894+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and HORTON concur." ], "parties": [ "STATE OF NORTH CAROLINA, Plaintiff v. COASTLAND CORPORATION, Defendant" ], "opinions": [ { "text": "LEWIS, Judge.\nDefendant appeals from the trial court\u2019s order denying its motion to dismiss the State\u2019s declaration of taking and notice of deposit. Defendant contends that the trial court lacked subject matter jurisdiction because \u201cplaintiff has sought to condemn property for a purpose which is beyond their statutory authority.\u201d Defendant also asserts that the State failed to state a claim upon which relief could be granted because the taking was not for a public purpose. The trial court concluded that the State was authorized to take defendant\u2019s property pursuant to N.C. Gen. Stat. sections 146-22.1(1) and (10) (1991), and that the State might alternatively take the property pursuant to N.C. Gen. Stat. section 113-306(a) (1997). Defendant made fourteen assignments of error, and argues six of them in one massive contention that the \u201cState\u2019s attempt to take real property of the defendant is not a taking for a public purpose.\u201d\nDefendant and the State own approximately 1000 acres as tenants in common, with defendant owning a one-fifth undivided interest and the State owning the remaining four-fifths. This unusual ownership arrangement exists pursuant to a North Carolina Supreme Court decision. See Taylor v. Johnston, 289 N.C. 690, 224 S.E.2d 567 (1976). The State, using public funds, constructed impoundments on the property in 1963. The impoundments were intended to provide mosquito control and a management area for wildlife, including waterfowl, shorebirds, wading birds, turtles, and other creatures. The twelve miles of dikes that make up the impoundments, together with their pumping stations, pumps, sheds and utility buildings, have been maintained continuously by the State since the 1960\u2019s. The area serves as a habitat and/or breeding area for numerous species, including the endangered peregrine falcon and the threatened bald eagle. The land is available for public wildlife-based recreations such as fishing, birdwatching, and photography. Hunting is permitted in the impoundments an average of 20 days per year and in the marsh area approximately 60 days per year. Maintenance of the facility structures and equipment requires 124 man-days per year, habitat management requires 40 man-days per year, and regulation of the area requires 60 man-days per year. Average annual costs for operation of the facility since 1962 have been $30,030, not including labor which currently requires approximately $11,000 per year.\nIn 1985, defendant purchased its one-fifth undivided interest from John \u201cJack\u201d Taylor, a party to the case establishing shared ownership with the State. The record indicates that defendant and the State have negotiated unsuccessfully to resolve the joint ownership situation since 1985. Defendant was willing to pay the State approximately $800,000 for the State\u2019s 80% interest in the land; however, an offer by the State to purchase defendant\u2019s 20% interest for $200,000 was refused by defendant. The State declined to physically partition the property, claiming such a division would adversely affect the management and operation of the impoundment facility. At various times the parties considered land trades, a sale by defendant if the State could secure a permit so defendant could build impoundments on adjacent property, and donation of the land to the State, all without agreement.\nIn 1991, the Wildlife Resources Commission asked the State Property Office, a division of the Department of Administration (\u201cDOA\u201d), to assess alternatives to the joint ownership. In October of 1995, the Wildlife Commission adopted a resolution requesting that DOA acquire defendant\u2019s interest by condemnation since all prior negotiations had failed. On 24 June 1996, defendant filed a petition for partition against the State. The Governor and the Council of State approved an action of condemnation as requested by DOA on 6 August 1996, and on 29 August 1996, the State, through DOA, filed a Complaint and Declaration of Taking and Notice of Deposit for defendant\u2019s one-fifth interest. The State deposited $200,000 in Pamlico County Superior Court, and title in the one-fifth interest thereby immediately vested in the State, as provided by N.C. Gen. Stat. section 136-104 (1993).\nThe State moved to dismiss defendant\u2019s partition proceeding on grounds of sovereign immunity and mootness on 16 September 1996. On 27 September 1996, defendant voluntarily dismissed its partition proceeding; defendant reinstituted the partition action on 26 September 1997. The State again filed a motion to dismiss on grounds of mootness and sovereign immunity on 21 October 1997. The State\u2019s motion to dismiss the partition suit was granted on 24 April 1998, but defendant still contests the validity of the taking by eminent domain.\nDefendant asserted in the trial court that the taking was improper because it was beyond statutory authority and was not for a public purpose. The trial court denied defendant\u2019s motion to dismiss, and from this order defendant appeals. An opinion filed concurrently with this one, Coastland Corporation v. N.C. Wildlife Resources Comm\u2019n, 134 N.C. App. 343, - S.E.2d- (1999), addresses the issues of mootness and sovereign immunity raised by the partition proceeding. Here we address defendant\u2019s arguments regarding the propriety of the taking.\nDefendant assigns error to the trial court\u2019s conclusions of law that the State was authorized to condemn the undivided one-fifth interest pursuant to N.C. Gen. Stat. sections 146-22.1 (1) and (10) (1991) and pursuant to N.C. Gen. Stat. section 113-306 (1997). The DOA\u2019s authority to condemn land is found in Chapter 146, Article 6 of our General Statutes.\nIn carrying out the duties and purposes set forth in Chapters 143 and 146 of the General Statutes, the Department of Administration is vested with the power of eminent domain .... The power of eminent domain herein granted is supplemental to and in addition to the power of eminent domain which may be now or hereafter vested in any State agency. . . and [DOA] may exercise on behalf of such agency the power vested in said agency or the power vested in [DOA] herein.\nN.C. Gen. Stat. \u00a7 146-24.1 (1991). The duties of DOA include acquiring land for state agencies. See N.C. Gen. Stat. \u00a7 143-341 (4)(d) (1999); State v. Club Properties, 275 N.C. 328, 331, 167 S.E.2d 385, 387 (1969). In acquiring property, \u201cthe Department of Administration may follow the procedure set forth in G.S. 146-24 or the procedure of such agency, at the option of the Department of Administration.\u201d G.S. \u00a7 146-24.1. Therefore, DOA can act to condemn land using either its own authority, here alleged to be found in section 146-22.1(1) and (10), or the authority of the requesting agency, here alleged to be section 113-306. Procedurally, DOA can act to condemn defendant\u2019s land either under section 146-24, which directs DOA to use the Board of Transportation procedures found in Chapter 136, Article 9 (\u201cTransportation procedures\u201d), or under Chapter 40A, which dictates the Wildlife Resources Commission\u2019s procedure to take property. See N.C. Gen. Stat. \u00a7\u00a7 146-24 (1991); 113-306(a).\nIt is clear that the State utilized the Transportation procedures in condemning defendant\u2019s land. Both the complaint and the declaration of taking definitively state that \u201cthe Department of Administration by virtue of G.S. 146-24 and G.S. 146-24.1 is authorized to exercise the power of eminent domain and acquire said lands by condemnation in the same manner as provided for by the Board of Transportation by Chapter 136, Article 9.\u201d This statement refers to section 146-24, which gives DOA power to condemn using Transportation procedures, and section 146-24.1, which allows DOA to choose between Transportation procedures and agency procedures. The statement of authority in the complaint indicates that DOA has chosen to use Transportation procedures rather than agency procedures. Furthermore, the Resolution of the Council of State authorizing eminent domain in this case provides that DOA is authorized to acquire the property \u201cin the manner prescribed by Chapter 146 Article 9, Chapter 136 of the General Statutes of North Carolina.\u201d Chapter 136, Article 9 is the Transportation procedure. No mention is made of section 113-306 or Chapter 40A in the complaint, the declaration, or the authorization. Finally, in a taking under the Wildlife Resources Commission\u2019s procedure, the State must include a statement regarding the timber, buildings, structures or fixtures on the property, and no such recitation appears in the complaint here. See N.C. Gen. Stat. \u00a7 40A-41 (1984). As such, the procedural propriety of the taking must rise or fall on the Transportation procedure.\nN.C. Gen. Stat. section 146-23 (1991) requires that a state \u201cagency desiring to acquire land . . . shall file with [DOA] an application setting forth its needs.\u201d When DOA receives the application, it must \u201cinvestigate all aspects of the requested acquisition\u201d and determine (1) the actual need for the property; (2) availability of other land already owned by the State; (3) availability of other land not owned by the State but which might meet the agency\u2019s needs; and (4) the availability of funds to buy the requested land. G.S. \u00a7 146-23; Club Properties, 275 N.C. at 331, 167 S.E.2d at 387. After this full investigation, DOA \u201cmay make acquisitions at the request of the Governor and Council of State.\u201d G.S. \u00a7 146-23.\nThe trial court made the following finding of fact:\nThe State followed the usual procedures set forth in Chapter 146 of the General Statutes to effect the condemnation of Defendant\u2019s interest in the land. The Commission requested the Department of Administration to acquire Defendant\u2019s interest in the subject property and recommended that it be acquired by condemnation, if necessary. The Department of Administration determined: that acquisition of the property was necessary as an integral part of the Pamlico Point Waterfowl Impoundment and Marshes; that there was no land already owned by the State or any State agency available for this purpose and that there were no other lands available either by purchase, condemnation, lease or rental which would meet the needs of the Commission, (although other impoundment property was for sale in Pamlico County.) that the Department had been unable to obtain the property through negotiations; that funds necessary for the acquisition are available in the budget of the Commission; that the acquisition was in the best interest of the State and it recommended to the Governor and Council of State that the property be condemned.\nDefendant contends there is no evidence in the record to support the trial court\u2019s finding of fact. We disagree.\nThe record indicates that as early as 1989 the Wildlife Commission asked DOA to become involved in negotiations regarding defendant\u2019s interest in the property. Affidavits indicate that DOA determined \u201c(i]n order to continue [the State\u2019s] operation of these governmental facilities unhindered,\u201d the State needed to acquire defendant\u2019s interest. This assertion is further supported by correspondence from defendant\u2019s former counsel dated 18 July 1996 in which defendant threatens to \u201clease his undivided interest to a private group.\u201d The record contains testimony from a DOA employee and wildlife biologists that no other land would allow the continuing operation of these state-owned impoundments and that outright ownership by the State of such impoundments \u201cis in the public\u2019s interest.\u201d Furthermore, there is testimony that funds were available with which to purchase defendant\u2019s interest. Finally, there is testimony from the Acting Director of the State Property Office division of DOA that employees of DOA \u201cha[d] thoroughly investigated all aspects of the requested acquisition.\u201d From the affidavits and exhibits, together with the Secretary of Administration\u2019s findings denoting that each requirement of the statute was addressed, the trial court could reasonably determine that DOA properly investigated \u201call aspects of the requested acquisition\u201d as required under section 146-23. This assignment of error is overruled.\nAs we stated above, once compliance with section 146-23 is established and DOA determines \u201cthat it is in the best interest of the State that land be acquired,\u201d DOA must negotiate with the owners of the desired land. N.C. Gen. Stat. \u00a7 146-24(a) (1991). If these negotiations are unsuccessful, DOA may request permission from the Governor and the Council of State to exercise its right of eminent domain \u201cin the same manner as is provided for the Board of Transportation by Article 9 of Chapter 136.\u201d N.C. Gen. Stat. \u00a7 146-24(c) (1991).\nThe Transportation procedures require that the condemnor file a complaint and a declaration of taking in the superior court of the county where the land is located. See N.C. Gen. Stat. \u00a7 136-103(a) (Cum. Supp. 1998). The complaint must contain:\n(1) A statement of the authority under which and the public use for which said land is taken.\n(2) A description of the entire tract....\n(3) A statement of the estate or interest in said land taken for public use ....\n(4) The names and addresses of those persons who the Department of Transportation is informed and believes may have or claim to have an interest in said lands ....\n(5) A statement as to such liens or other encumbrances . . . upon said real estate ....\n(6) A prayer that there be a determination of just compensation in accordance with the provisions of this Article.\nN.C. Gen. Stat. \u00a7 136-103(c) (Cum. Supp. 1998). The declaration of taking must contain or have attached:\n(1) A statement of the authority under which and the public use for which said land is taken.\n(2) A description of the entire tract....\n(3) A statement of the estate or interest in said land taken for public use ....\n(4) The names and addresses of those persons who . .. may have or claim to have an interest in said lands ....\n(5) A statement of the sum of money estimated by said Department of Transportation to be just compensation for said taking.\nN.C. Gen. Stat. \u00a7 136-103(b) (Cum. Supp. 1998). The filing of the complaint and declaration must be accompanied by a deposit of the amount of money listed in subsection (b)(5). N.C. Gen. Stat. \u00a7 136-103(d) (Cum. Supp. 1998). Upon the filings and deposit, title vests in the Department of Transportation. See G.S. \u00a7 136-104. We have reviewed the State\u2019s filings, and we hold that each of the necessary elements was included in the complaint and declaration.\nDefendant next contends that the statement of public use is defective. This essentially is defendant\u2019s argument that the State lacked statutory authority to take defendant\u2019s property. We hold the statement of public use is sufficient and the State had authority to take defendant\u2019s interest by eminent domain.\nDOA \u201cis authorized and empowered to acquire by purchase, gift, condemnation or otherwise: . . . (10) Utility and access easement, rights-of-way, estates for terms of years or fee simple title to lands necessary or convenient to the operation of state-owned facilities.\u201d G.S. \u00a7 146-22.1. Both the complaint and the declaration state that \u201c[s]aid lands are an integral part of the Wildlife Resources Commission governmental facilities at the Pamlico Point waterfowl impoundments and marshes.\u201d We believe this sufficiently invokes a public use since G.S. \u00a7 146-22.1(10) specifically authorizes DOA to take \u201cfee simple title to lands necessary or convenient to the operation of state-owned facilities.\u201d\nDefendant does not assign error to the trial court\u2019s findings of fact that the State incurs expense to manage the property and that the primary purpose of the management is to provide \u201cfood and winter habitat for migrating waterfowl, which in turn, provides waterfowl hunting opportunities to waterfowl hunters.\u201d The State owns the impoundments and is operating them with the necessary outbuildings, pumps, and pump stations. The legislature has determined that lands \u201cnecessary or convenient to the operation of state-owned facilities\u201d may be taken by condemnation, G.S. \u00a7 146-22.1(10), and \u201conly the legislative [branch] can authorize the exercise of the power of eminent domain and prescribe the manner of its use.\u201d Club Properties, 275 N.C. at 334, 167 S.E.2d at 389. Substantial evidence was received that these state-owned facilities are operated by the State for both hunting and conservation endeavors. The purpose of the taking is statutorily authorized by section 146-22.1 (10), the State complied fully with the Transportation procedures, and defendant\u2019s protestations to the contrary are overruled.\nThe second power under which DOA may institute a taking is under the requesting agency\u2019s authority. See G.S. \u00a7 146-24.1. The Wildlife Resources Commission\u2019s powers of condemnation are set forth in section 113-306, providing that \u201c[i]n the overall best interests of the conservation of wildlife resources, the Wildlife Resources Commission may . . . condemn lands in accordance with the provisions of Chapter 40A.\u201d The trial court held as a matter of law that DOA was authorized to take defendant\u2019s interest under this agency authority, as well as under section 146-22.1(10). Defendant contests this determination.\nWe decline to reach this question since we already have determined that the State properly condemned defendant\u2019s property under DOA authority in G.S.146-22.1(10), using the Transportation procedures in Chapter 136. The State may acquire less than a fee simple interest in property, as evidenced by the statutory requirement that the complaint and declaration denote the estate or interest sought. See G.S. \u00a7\u00a7 136-103(b)(3); 136-103(c)(3). Furthermore, we see no reason why the State should not be able to condemn an undivided partial interest in property when it could condemn a fee simple interest in the entire parcel. Though we are inclined to agree with the State, we need not decide whether hunting is \u201c[f]or the public use or benefit,\u201d N.C. Gen. Stat. \u00a7 40A-3 (Cum. Supp. 1998), under agency authority because we find express statutory authority to condemn defendant\u2019s interest as necessary and convenient for the operation and maintenance of the government-owned impoundments. See G.S. \u00a7 146-22.1 (10).\nAffirmed.\nJudges TIMMONS-GOODSON and HORTON concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General Roy A. Giles, Jr., for the State.", "Henderson, Baxter, Alford & Taylor, P.A., by David S. Henderson, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA, Plaintiff v. COASTLAND CORPORATION, Defendant\nNo. COA98-1067\n(Filed 20 July 1999)\n1. Eminent Domain\u2014 Dept, of Administration condemnation \u2014 authority\nThe trial court did not err by concluding that the State was authorized to condemn defendant\u2019s undivided one-fifth interest in land used for mosquito control and wildlife management (an ownership arrangement resulting from a prior judicial decision). The Department of Administration can act to condemn land using either its own authority, N.C.G.S. \u00a7 146-22.1(1) (Board of Transportation procedures) or the authority of the requesting agency. It is clear that here the State utilized Transportation procedures, that the trial court could reasonably determine from the affidavits, exhibits, and the Secretary of Administration\u2019s findings that the DOA properly investigated all aspects of the requested acquisition as required by the statute, and that each of the necessary elements was included in the complaint and declaration.\n2. Eminent Domain\u2014 statement of public use \u2014 wildlife management lands\nThe statement of public use in a condemnation action was sufficient where it stated that the lands were an integral part of Wildlife Resources Commission facilities and N.C.G.S. \u00a7 146-22.1 specifically authorizes the Department of Administration to take title to lands necessary or convenient to the operation of state owned facilities.\n3. Eminent Domain\u2014 interest acquired \u2014 less than fee simple\nThe State may acquire less than a fee simple interest in property.\nAppeal by defendant from judgment entered 24 April 1998 by Judge James E. Ragan, III, in Pamlico County Superior Court. Heard in the Court of Appeals 21 April 1999.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Roy A. Giles, Jr., for the State.\nHenderson, Baxter, Alford & Taylor, P.A., by David S. Henderson, for defendant-appellant." }, "file_name": "0269-01", "first_page_order": 301, "last_page_order": 309 }