{ "id": 8375662, "name": "PROGRESS ENERGY CAROLINAS, INC., Petitioner v. WILLIAM HOWELL STRICKLAND, Respondent", "name_abbreviation": "Progress Energy Carolinas, Inc. v. Strickland", "decision_date": "2007-02-20", "docket_number": "No. COA06-20", "first_page": "610", "last_page": "629", "citations": [ { "type": "official", "cite": "181 N.C. App. 610" } ], "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": "619 S.E.2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633954, 12633955 ], "year": 2005, "pin_cites": [ { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/se2d/619/0495-01", "/se2d/619/0495-02" ] }, { "cite": "634 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636661 ], "year": 2006, "pin_cites": [ { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/se2d/634/0625-01" ] }, { "cite": "201 S.E.2d 508", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "510" } ], "opinion_index": 0 }, { "cite": "20 N.C. App. 347", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552479 ], "year": 1974, "pin_cites": [ { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/nc-app/20/0347-01" ] }, { "cite": "508 S.E.2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "291", "parenthetical": "quoting Domestic Electric Service, Inc. v. City of Rocky Mount, 20 N.C. App. 347, 350, 201 S.E.2d 508, 510 (1974)" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 337", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11199640 ], "year": 1998, "pin_cites": [ { "page": "338", "parenthetical": "quoting Domestic Electric Service, Inc. v. City of Rocky Mount, 20 N.C. App. 347, 350, 201 S.E.2d 508, 510 (1974)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0337-01" ] }, { "cite": "389 S.E.2d 35", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "39" } ], "opinion_index": 0 }, { "cite": "326 N.C. 338", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305257 ], "year": 1990, "pin_cites": [ { "page": "344-45" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0338-01" ] }, { "cite": "496 S.E.2d 563", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "567", "parenthetical": "quoting Batten v. N.C. Dep't of Corrections, 326 N.C. 338, 344-45, 389 S.E.2d 35, 39 (1990)" } ], "opinion_index": 0 }, { "cite": "347 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551113 ], "year": 1998, "pin_cites": [ { "page": "656", "parenthetical": "quoting Batten v. N.C. Dep't of Corrections, 326 N.C. 338, 344-45, 389 S.E.2d 35, 39 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0649-01" ] }, { "cite": "551 S.E.2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "876" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 589", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435865 ], "year": 2001, "pin_cites": [ { "page": "593" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0589-01" ] }, { "cite": "293 S.E.2d 127", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "133" } ], "opinion_index": 0 }, { "cite": "306 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571007 ], "year": 1982, "pin_cites": [ { "page": "404" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0394-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 63-30", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 62-183", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "166 S.E.2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "670" } ], "opinion_index": 0 }, { "cite": "275 N.C. 250", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558370 ], "year": 1969, "pin_cites": [ { "page": "260" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0250-01" ] }, { "cite": "148 S.E. 246", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 3, "year": 1929, "pin_cites": [ { "page": "284" }, { "page": "248", "parenthetical": "\"An easement, of course, is an interest in land, and if it is created by deed, either by express grant or by reservation, the description thereof must not be too uncertain, vague and indefinite.\"" } ], "opinion_index": 0 }, { "cite": "197 N.C. 280", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628422 ], "year": 1929, "opinion_index": 0, "case_paths": [ "/nc/197/0280-01" ] }, { "cite": "1 L. Ed. 2d 58", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1956, "opinion_index": 0 }, { "cite": "352 U.S. 842", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181096, 6180264, 6181289, 6180911, 6180754, 6180571, 6180412 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/us/352/0842-06", "/us/352/0842-01", "/us/352/0842-07", "/us/352/0842-05", "/us/352/0842-04", "/us/352/0842-03", "/us/352/0842-02" ] }, { "cite": "89 S.E.2d 595", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1955, "pin_cites": [ { "page": "597" }, { "page": "713" }, { "page": "597" } ], "opinion_index": 0 }, { "cite": "242 N.C. 711", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621997 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/nc/242/0711-01" ] }, { "cite": "593 S.E.2d 404", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "408" }, { "page": "408" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 114", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8915511 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "116" }, { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0114-01" ] }, { "cite": "175 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "351" } ], "opinion_index": 0 }, { "cite": "8 N.C. App. 649", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554490 ], "year": 1970, "pin_cites": [ { "page": "653" } ], "opinion_index": 0, "case_paths": [ "/nc-app/8/0649-01" ] }, { "cite": "178 S.E.2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "350-51" } ], "opinion_index": 0 }, { "cite": "277 N.C. 634", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567108 ], "year": 1971, "pin_cites": [ { "page": "643-44" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0634-01" ] }, { "cite": "360 N.C. 46", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3786529 ], "year": 2005, "pin_cites": [ { "page": "48" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0046-01" ] }, { "cite": "155 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1967, "pin_cites": [ { "page": "784" }, { "page": "784" } ], "opinion_index": 0 }, { "cite": "271 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562278 ], "weight": 3, "year": 1967, "pin_cites": [ { "page": "14" }, { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0001-01" ] }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "381" } ], "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "year": 1950, "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] }, { "cite": "179 N.C. App. 505", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8237434 ], "year": 2006, "pin_cites": [ { "page": "509" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0505-01" ] }, { "cite": "549 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135695 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0671-01" ] }, { "cite": "120 S.E.2d 82", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "91" } ], "opinion_index": 0 }, { "cite": "254 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627858 ], "year": 1961, "pin_cites": [ { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0680-01" ] }, { "cite": "521 S.E.2d 707", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1999, "pin_cites": [ { "page": "708", "parenthetical": "quoting Greene v. Charlotte Chem. Lab., Inc., 254 N.C. 680, 693, 120 S.E.2d 82, 91 (1961)" }, { "page": "709" }, { "page": "709" }, { "page": "709" } ], "opinion_index": 0 }, { "cite": "351 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155764 ], "weight": 4, "year": 1999, "pin_cites": [ { "page": "174", "parenthetical": "quoting Greene v. Charlotte Chem. Lab., Inc., 254 N.C. 680, 693, 120 S.E.2d 82, 91 (1961)" }, { "page": "175" }, { "page": "176" }, { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0172-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 63-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2005, "opinion_index": 1 }, { "cite": "458 U.S. 419", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 636616 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "441", "parenthetical": "\"[A] permanent physical occupation of property is a [per se] taking.\"" }, { "page": "886", "parenthetical": "\"[A] permanent physical occupation of property is a [per se] taking.\"" } ], "opinion_index": 1, "case_paths": [ "/us/458/0419-01" ] }, { "cite": "526 S.E.2d 167", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "170", "parenthetical": "internal quotations and citations omitted" }, { "page": "170" } ], "opinion_index": 1 }, { "cite": "351 N.C. 310", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155900 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "314", "parenthetical": "internal quotations and citations omitted" }, { "page": "314" } ], "opinion_index": 1, "case_paths": [ "/nc/351/0310-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 62-184", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "pin_cites": [ { "parenthetical": "emphasis supplied" } ], "opinion_index": 1 }, { "cite": "82 S.E. 5", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1914, "pin_cites": [ { "page": "10" } ], "opinion_index": 1 }, { "cite": "166 N.C. 168", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11268910 ], "year": 1914, "pin_cites": [ { "page": "180-81" } ], "opinion_index": 1, "case_paths": [ "/nc/166/0168-01" ] }, { "cite": "69 S.E.2d 525", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1952, "pin_cites": [ { "page": "526" }, { "page": "526" } ], "opinion_index": 1 }, { "cite": "235 N.C. 259", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622854 ], "weight": 2, "year": 1952, "pin_cites": [ { "page": "260" }, { "page": "260" } ], "opinion_index": 1, "case_paths": [ "/nc/235/0259-01" ] }, { "cite": "251 S.E.2d 457", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1979, "pin_cites": [ { "page": "459", "parenthetical": "internal citations omitted" }, { "page": "459" }, { "page": "459" } ], "opinion_index": 1 }, { "cite": "296 N.C. 503", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567817 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "504", "parenthetical": "internal citations omitted" }, { "page": "504" }, { "page": "504" } ], "opinion_index": 1, "case_paths": [ "/nc/296/0503-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 63-37.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 63-30", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 8, "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 62-183", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "year": 2005, "opinion_index": 1 }, { "cite": "166 S.E.2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1969, "pin_cites": [ { "page": "670" }, { "page": "670" } ], "opinion_index": 1 }, { "cite": "275 N.C. 250", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558370 ], "weight": 2, "year": 1969, "pin_cites": [ { "page": "260" }, { "page": "260" } ], "opinion_index": 1, "case_paths": [ "/nc/275/0250-01" ] }, { "cite": "148 S.E. 246", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1929, "pin_cites": [ { "page": "248" } ], "opinion_index": 1 }, { "cite": "197 N.C. 280", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628422 ], "year": 1929, "pin_cites": [ { "page": "284" } ], "opinion_index": 1, "case_paths": [ "/nc/197/0280-01" ] }, { "cite": "1 L. Ed. 2d 58", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1956, "opinion_index": 1 }, { "cite": "352 U.S. 842", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181096, 6180264, 6181289, 6180911, 6180754, 6180571, 6180412 ], "year": 1956, "opinion_index": 1, "case_paths": [ "/us/352/0842-06", "/us/352/0842-01", "/us/352/0842-07", "/us/352/0842-05", "/us/352/0842-04", "/us/352/0842-03", "/us/352/0842-02" ] }, { "cite": "89 S.E.2d 595", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1955, "pin_cites": [ { "page": "597" }, { "page": "597" }, { "page": "597" } ], "opinion_index": 1 }, { "cite": "242 N.C. 711", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621997 ], "weight": 3, "year": 1955, "pin_cites": [ { "page": "714" }, { "page": "714" }, { "page": "714" } ], "opinion_index": 1, "case_paths": [ "/nc/242/0711-01" ] }, { "cite": "175 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1970, "pin_cites": [ { "page": "351", "parenthetical": "\"[W]hen the City undertook to exercise the power of eminent domain which had been granted to it by the Legislature, it was necessary that it both allege and prove compliance with statutory procedural requirements.\"" }, { "page": "351" }, { "page": "351" }, { "page": "351" }, { "page": "351" } ], "opinion_index": 1 }, { "cite": "8 N.C. App. 649", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554490 ], "weight": 5, "year": 1970, "pin_cites": [ { "page": "653", "parenthetical": "\"[W]hen the City undertook to exercise the power of eminent domain which had been granted to it by the Legislature, it was necessary that it both allege and prove compliance with statutory procedural requirements.\"" }, { "page": "653" }, { "page": "653" }, { "page": "653" }, { "page": "653" } ], "opinion_index": 1, "case_paths": [ "/nc-app/8/0649-01" ] }, { "cite": "178 S.E.2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1971, "pin_cites": [ { "page": "350", "parenthetical": "The petitioner \"must exercise the power of eminent domain pursuant to Chapter 160 and Chapter 40, and in order to invoke the power of eminent domain petitioner must affirmatively allege or prove compliance with the statutory requirements.\"" }, { "page": "350", "parenthetical": "Petitioner \"must exercise the power of eminent domain pursuant to Chapter 160 and Chapter 40 and in order to invoke the power of eminent domain petitioner must affirmatively allege or prove compliance with the statutory requirements.\" (emphasis supplied)" }, { "page": "350" }, { "page": "350" }, { "page": "350" } ], "opinion_index": 1 }, { "cite": "277 N.C. 634", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567108 ], "weight": 5, "year": 1971, "pin_cites": [ { "page": "643", "parenthetical": "The petitioner \"must exercise the power of eminent domain pursuant to Chapter 160 and Chapter 40, and in order to invoke the power of eminent domain petitioner must affirmatively allege or prove compliance with the statutory requirements.\"" }, { "page": "643" }, { "page": "643" }, { "page": "643" }, { "page": "643" } ], "opinion_index": 1, "case_paths": [ "/nc/277/0634-01" ] } ], "analysis": { "cardinality": 1378, "char_count": 47172, "ocr_confidence": 0.736, "pagerank": { "raw": 8.751083229998141e-08, "percentile": 0.4949211324675686 }, "sha256": "9813744afa8119db6106ce02bc22627d7cd32d24b394737a3ee1b67bb18e25f6", "simhash": "1:0248dd6735f76c70", "word_count": 7561 }, "last_updated": "2023-07-14T22:19:54.793724+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge CALABRIA concurs.", "Judge TYSON concurs in part and dissents in part by separate opinion." ], "parties": [ "PROGRESS ENERGY CAROLINAS, INC., Petitioner v. WILLIAM HOWELL STRICKLAND, Respondent" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nPetitioner sought to condemn an easement across respondent\u2019s 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\u2019s 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.\nOn 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 the 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\u2019s 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.\nRespondent 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\u2019s 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\u2019s appeal is interlocutory and must be dismissed.\nI. Right to Appellate Review\nWe first consider whether respondent\u2019s appeal in this case is an interlocutory appeal requiring dismissal. \u201cA ruling is interlocutory \u2018if it does not determine the issues but directs some further proceeding preliminary to final decree.\u2019 \u201d Dep\u2019t 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\u2019d 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.\n\u201cThere is generally no right to appeal an interlocutory order.\u201d Gregory v. Penland, 179 N.C. App. 505, 509, 634 S.E.2d 625, 628 (2006). However, \u201ca party may appeal an interlocutory order that \u2018affects some substantial right claimed by the appellant and will work an injury to him if not corrected before an appeal from the final judgment.\u2019 \u201d 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\u2019n v. Nuckles, 271 N.C. 1, 155 S.E.2d 772 (1967) that \u201corders from a condemnation hearing concerning title and area taken are \u2018vital preliminary issues\u2019 that must be immediately appealed pursuant to N.C.G.S. \u00a7 1-277, which permits interlocutory appeals of determinations affecting substantial rights.\u201d 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\u2019t of Transp. v. Stagecoach Village, 360 N.C. 46, 48, 619 S.E.2d 495, 496 (2005).\nThe 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:\nObviously, 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 \u201cissues other than damages.\u201d\nNuckles, 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: \u201cDefendants 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\u2019s interlocutory order does not affect any substantial right of these defendants.\u201d Rowe, 351 N.C. at 176, 521 S.E.2d at 709. The Court went on to limit the Nuckles holding to \u201cquestions of title and area taken.\u201d Id.\nApplying 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\u2019s 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. \u00a7 1-277.\nII. Respondent\u2019s First Issue: The Garden\nWe next consider whether the court erred in finding that respondent\u2019s reasonable size garden was not affected by the easement and whether the law allows petitioner to condemn the proposed easement for an electric transmission line. The court found: \u201cThe easement to be taken by condemnation over Respondent\u2019s property does not affect the kitchen and reasonable size garden of the Respondent as said property existed on the date the Petition was filed, February 2, 2005.\u201d Respondent argues that the evidence does not support the court\u2019s finding and that the finding does not support the court\u2019s conclusion that \u201cPetitioner has the right to condemn the property in the manner noted in the Findings of Fact.\u201d As a preliminary matter, we note that, in this particular case, respondent bore the burden of proving that the court should not grant the petition, according to N.C.G.S. \u00a7 40A-25. Section 40A-25 applies to eminent domain proceedings by private condemnors, and it states:\nOn presenting such petition to the clerk of superior court, ... all or any of the persons whose estates or interests are to be affected by the proceedings may answer such petition and show cause against granting the prayer of the same. The clerk shall hear the proofs and allegations of the parties, and if no sufficient cause is shown against granting the prayer of the petition, shall make an order for the appointment of three commissioners ....\nN.C. Gen. Stat. \u00a7 40A-25 (2005) (emphasis added). Petitioner Progress Energy Carolinas, Inc., is a private condemnor as described in N.C.G.S. \u00a7 40A-3(a), which includes corporations, bodies politic, or persons whose purpose is to construct power lines and other facilities related to power generation and distribution. N.C. Gen. Stat. \u00a7 40A-3(a)(l) (2005).\nThe statutory authority found in \u00a7 40A-25 is distinguishable from cases cited by both respondent and the dissent in support of their assertion that petitioner bears the burden of proof. See Redev. Comm\u2019n of Washington v. Grimes, 277 N.C. 634, 643-44, 178 S.E.2d 345, 350-51 (1971); City of Charlotte v. McNeely, 8 N.C. App. 649, 653, 175 S.E.2d 348, 351 (1970). Both Grimes and McNeely involved public condemnors, who are not governed by \u00a7 40A-25. See N.C. Gen. Stat. \u00a7 40A-3(b)-(c) (2005) (defining public condemnors); N.C. Gen. Stat. \u00a7 40A-19 (2005) (limiting the application of \u00a7 40A-25 to \u201c[a]ny private condemnor enumerated in G.S. 40A-3(a)\u201d). Furthermore, both Grimes and McNeely cite to Chapter 40 of our General Statutes, which was repealed in 1981. 1981 N.C. Sess. Laws ch. 919, \u00a7 1. Public condemnation proceedings are governed by what is now Article 3 of Chapter 40A, while private condemnation proceedings are governed by Article 2 of Chapter 40A.\nHaving established the proper burden of proof, we consider the merit of respondent\u2019s arguments. \u201cThe trial court\u2019s findings of fact are binding on appeal as long as competent evidence supports them, despite the existence of evidence to the contrary.\u201d Resort Realty of the Outer Banks, Inc. v. Brandt, 163 N.C. App. 114, 116, 593 S.E.2d 404, 408 (2004). The evidence presented at the hearing was inconclusive as to the precise location of respondent\u2019s garden in relation to the proposed easement. Respondent testified about the location of his garden by describing a large rectangle with indefinite boundaries that appeared on an aerial photograph. It is apparent from the transcript that respondent offered testimony by pointing to areas of the photograph, although the gestures are not recorded in the transcript. Respondent testified orally that the garden extended from the current right of way to the house; however, respondent also testified that he did not know exactly where the proposed easement would run in relation to his garden. Considering the equivocal competent evidence about the size, location, and boundaries of the garden, and respondent\u2019s burden to show that the garden did fall within the proposed easement, the court did not err in finding that a reasonable size garden was not affected by the easement. As supported by the competent evidence, this fact is binding on appeal.\nRespondent argues the court erred in concluding, based on this finding, that petitioner had the right to condemn respondent\u2019s garden in contravention of the plain language of N.C.G.S. \u00a7 40A-3(a), governing private condemnors, which states: \u201cNo such condemnor shall be allowed to have condemned to its use, without the consent of the owner, his burial ground, usual dwelling house and yard, kitchen and garden, unless condemnation of such property is expressly authorized by statute.\u201d N.C. Gen. Stat. \u00a7 40A-3(a) (2005). Although this statute in fact limits a private condemnor\u2019s power to condemn a garden, the court\u2019s conclusion in the present case does not contravene the statute. The trial court did not find that the proposed easement would affect the respondent\u2019s garden, which finding would have triggered the \u00a7 40A-3 limitation. Rather, the court concluded that petitioner has the right to condemn based on the finding that a reasonable size garden would not be affected.\nRespondent further argues the court used the wrong standard when it made a finding with regard to a \u201creasonable size garden\u201d because such language does not appear in the statute. We acknowledge that N.C.G.S. \u00a7 40A-3 does not use the standard of a \u201creasonable size garden,\u201d but in the present case this is not a fatal flaw. If the court\u2019s findings support the conclusions of law, we will affirm the trial court\u2019s order. See Resort Realty, 163 N.C. App. at 116, 593 S.E.2d at 408. Here, the court found that a reasonable size garden would not be affected by the proposed easement. The finding suggests either that the whole garden, of a reasonable size, was not affected by the proposed easement or at least that the respondent did not meet his burden of proving that any portion of the garden was affected by the easement. Either reading of the finding is sufficient to support the court\u2019s conclusion that the petitioner has the right to condemn the land.\nIII. Respondent\u2019s Second Issue: Description of the Easement\nThe second issue raised by respondent is whether the petition sufficiently described the extent of the easement to be condemned and whether petitioner has the legal authority to condemn the rights described in the petition. N.C.G.S. \u00a7 40A-20 governs what information must be alleged in the petition. It requires \u201ca description of the property which the condemnor seeks to acquire . . ., stating in detail the nature of its public business, and the specific use of the property; and that the property described in the petition is required for the purpose of conducting the proposed business.\u201d N.C. Gen. Stat. \u00a7 40A-20 (2005). We conclude that petitioner satisfied the statutory requirements where the petition (1) included a legal description of the property and the easement area in exhibit A, (2) described its intended use as \u201cPetitioner plans to construct across land owned by Respondent a transmission and/or distribution line consisting of one or more wires attached to poles for the purpose of transmitting and distributing electric power as part of the necessary functioning of Petitioner\u2019s electric system,\u201d and (3) further described in paragraph 8, for one and one-half pages, the nature of the right, title, and interest that it sought to condemn.\nCiting Cannon v. City of Wilmington, 242 N.C. 711, 89 S.E.2d 595 (1955), cert. denied, 352 U.S. 842, 1 L. Ed. 2d 58 (1956), both respondent and the dissent assert that petitioner is required to define with particularity the location and extent of its claimed easement. Id. at 714, 89 S.E.2d at 597. We note that Cannon, a case about a public taking by the State Highway and Public Works Commission, was decided in 1955, under a previous version of the eminent domain statutes. See id. at 713, 89 S.E.2d at 597. Our General Assembly repealed the eminent domain laws appearing in Chapter 40 of our General Statutes in 1981 and enacted Chapter 40A. 1981 N.C. Sess. Laws ch. 919, \u00a7 1. To the extent that Cannon might constitute controlling precedent in the case of a private condemnation proceeding, we rely on our General Assembly to have incorporated it into the recodified eminent domain statutes, and \u00a7 40A-20 in particular.\nSimilarly, we recognize that M.E. Gruber, Inc. v. Eubank, 197 N.C. 280, 148 S.E. 246 (1929), cited by the dissent, is not controlling precedent in this case because it pertains specifically to easements created by deed, not to eminent domain proceedings. Id. at 284, 148 S.E. at 248 (\u201cAn easement, of course, is an interest in land, and if it is created by deed, either by express grant or by reservation, the description thereof must not be too uncertain, vague and indefinite.\u201d) (emphasis added).\nRespondent also cites N.C.G.S. \u00a7 40A-66 as statutory authority requiring certain descriptions to appear in the petition; however, \u00a7 40A-66 governs valuation and does not impose requirements on the petition. We do not read such requirements into the statute because \u201c[w]hen [a] section dealing with a specific matter is clear and understandable on its face, it requires no construction.\u201d State ex rel. Utils. Comm\u2019n v. Lumbee River Elec. Membership Corp., 275 N.C. 250, 260, 166 S.E.2d 663, 670 (1969). We conclude the description of the easement sought to be condemned in the petition is sufficient.\nRespondent further argues that petitioner does not have the authority to condemn an easement to construct \u201cfuture facilities.\u201d As we have previously discussed, under N.C.G.S. \u00a7 40A-25, we must determine whether respondent has successfully shown that petitioner has exceeded its authority in seeking condemnation of the easement for future facilities. As all of the facilities to be built on a proposed easement are \u201cfuture\u201d facilities, petitioner\u2019s authority to condemn the easement for future facilities is granted in the statutory grant of eminent domain appearing in N.C.G.S. \u00a7 62-183, which includes the right to erect poles and towers and to establish offices and powerhouses. N.C. Gen. Stat. \u00a7 62-183 (2005). We have found no other authority suggesting that \u201cfuture facilities\u201d are excluded from the general grant; therefore, the description in the petition does not exceed petitioner\u2019s authority to condemn under our statutes. Furthermore, to the extent that petitioner shall have the right to construct future facilities, respondent may seek compensation for his loss at the valuation stage.\nIV. Respondent\u2019s Third Issue: The Airstrips\nWe turn to the final issue in this appeal, whether petitioner can exercise the power of eminent domain when it conflicts with statutes governing the obstruction of private airports and runways. The alleged conflict between the statutes stems from language in N.C.G.S. \u00a7 62-183 that electric power companies may condemn by eminent domain a \u201cright-of-way over the lands, privileges and easements of other persons and corporations\u201d and language in the aviation statutes which declares that airport hazards are not in the public interest and obstruction of a private airport is a misdemeanor. N.C. Gen. Stat. \u00a7\u00a7 63-30, 63-37.1 (2005). In this case, the court found that \u201c[t]he easement to be taken by condemnation over Respondent\u2019s property will affect in some way one or both of the two (2) airstrips of the Respondent.\u201d Since respondent did not assign error to this finding of fact, it is presumed to be correct and supported by the evidence. In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982). Respondent argues that the proposed easement in this case would create both an obstruction and a hazard to respondent\u2019s airstrips and that the aviation statutes therefore prohibit petitioner from condemning the easement.\nWe first note the principle of statutory construction that \u201c[interpretations that would create a conflict between two or more statutes are to be avoided, and statutes should be reconciled with each other whenever possible.\u201d Velez v. Dick Keffer Pontiac-GMC Truck, Inc., 144 N.C. App. 589, 593, 551 S.E.2d 873, 876 (2001). The statutory construction advocated by respondent results in a conflict between the statutes, namely that the eminent domain statute allows condemnation of the easement near the airstrip while the aviation statutes prohibit it. The precedent for statutory construction requires that we consider whether the statutes can be read in such a way as to avoid conflict. This can be accomplished by an understanding of the language \u201cobstruction\u201d and \u201chazard\u201d in the aviation statutes as not pertaining to airport rights and uses that become permanently condemned through a formal condemnation proceeding and for which just compensation is received. We find this to be the most harmonious reading of the two statutes because, to the extent the power lines in the easement will affect the airstrips, they constitute a condemnation of certain activity on the airstrip, rather than a hazard or obstruction. The loss of use or other effect of the easement on the airstrip may be resolved in the valuation portion of the proceedings.\nEven if the statutes could not be read together to avoid conflict, any resolution of the conflict between the statutes, based on the other principles of statutory construction, would result in the eminent domain statutes controlling the present situation. We note that \u201cthe exclusion of a particular circumstance from a statute\u2019s general operation is evidence of legislative intent not to exempt other particular circumstances not expressly excluded.\u201d Dep\u2019t of Transp. v. Humphries, 347 N.C. 649, 656, 496 S.E.2d 563, 567 (1998) (quoting Batten v. N.C. Dep\u2019t of Corrections, 326 N.C. 338, 344-45, 389 S.E.2d 35, 39 (1990)). Eminent domain statute N.C.G.S. \u00a7 40A-3(a) contains specific exemptions from the general ability of private condemnors to condemn property where it prohibits condemnation of burial grounds, houses and yards, and kitchens and gardens without the owner\u2019s consent unless authorized by statute. Since N.C.G.S. \u00a7 40A-3 contains exceptions which do not include land that affects a private airstrip, this is evidence that the legislature did not intend to exempt such land. Furthermore, \u201c[w]hen a more generally applicable statute conflicts with a more specific, special statute, the \u2018special statute is viewed as an exception to the provisions of the general statute ....\u2019\u201d Taylor v. Robinson, 131 N.C. App. 337, 338, 508 S.E.2d 289, 291 (1998) (quoting Domestic Electric Service, Inc. v. City of Rocky Mount, 20 N.C. App. 347, 350, 201 S.E.2d 508, 510 (1974)). As the eminent domain statutes contain much more detail about what land may be taken for what uses, as discussed above, the aviation statutes are the generally applicable statutes and the eminent domain statutes are an exception to it.\nFinally, we note that the court was required to grant the petition unless respondent successfully showed cause that condemnation of the easement is prohibited by law. Accordingly, we conclude that the North Carolina statutes grant petitioner the authority to condemn respondent\u2019s land even though it \u201cwill affect in some way one or both of the two (2) airstrips,\u201d and we affirm.\nAffirmed.\nJudge CALABRIA concurs.\nJudge TYSON concurs in part and dissents in part by separate opinion.", "type": "majority", "author": "MARTIN, Chief Judge." }, { "text": "TYSON, Judge,\nconcurring in part, dissenting in part.\nI concur with the majority\u2019s opinion that respondent\u2019s interlocutory appeal is properly before us. I do not agree with the remainder of the majority\u2019s opinion on the merits of respondent\u2019s appeal. Affirming the trial court is error because: (1) N.C. Gen. Stat. \u00a7 40A-3(a) exempts and specifically prohibits petitioner from condemning respondent\u2019s kitchen and garden without the owner\u2019s consent; (2) the trial court improperly imposed a \u201creasonable size\u201d standard not present in N.C. Gen. Stat. \u00a7 40A-3(a); (3) petitioner\u2019s petition does not sufficiently describe the proposed easement as required by N.C. Gen. Stat. \u00a7 40A-20 and seeks to exercise unbridled discretion over future expansions, uses, and burdens of the easement; and (4) petitioner\u2019s proposed condemnation of an easement expressly violates N.C. Gen. Stat. \u00a7 63-30 and N.C. Gen. Stat. \u00a7 63-37.1. I vote to reverse the trial court\u2019s order and respectfully dissent.\nI. Standard of Review\nOur Supreme Court has stated:\nIt is well settled that the power of eminent domain is inherent in sovereignty. The Legislature has the right to determine what portion of this sovereign power it will delegate to public or private corporations to be used for public benefit. The right of eminent domain must be conferred by statute, expressly or by necessary implication, and such statute must be strictly construed.\nColonial Pipeline Co. v. Neill, 296 N.C. 503, 504, 251 S.E.2d 457, 459 (1979) (internal citations omitted) (emphasis supplied).\nII. Respondent\u2019s Kitchen and Garden\nRespondent argues the trial court erred in interpreting and applying N.C. Gen. Stat. \u00a7 40A-3(a) to allow petitioner\u2019s condemnation of his kitchen and garden. I agree.\nN.C. Gen. Stat. \u00a7 40A-3(a) (2005) states, \u201cNo such condemnor shall be allowed to have condemned to its use, without the consent of the owner, his burial ground, usual dwelling house and yard, kitchen and garden, unless condemnation of such property is expressly authorized by statute.\u201d (Emphasis supplied).\nOur Supreme Court has stated:\nThe limitation contained in G.S. 40-10 [the immediate predecessor of N.C. Gen. Stat. \u00a7 40A-3(a)] as enacted by the General Assembly of 1852, chapter 92, section 1, which was an act to define the duties and powers of turnpike and plank road companies. It was codified in the Revised Code of 1855, chapter 61, section 21, and read as follows: \u201cNo such corporation shall be allowed to have condemned to its use, without the consent of the owner, his dwelling house, yard, kitchen, garden or burial ground.\u201d This exact language was carried forward in section 1701, chapter 38, in the Code of 1883. The provision later became a part of section 2578 of the Revisal of 1905, chapter 61.\nMount Olive v. Cowan, 235 N.C. 259, 260, 69 S.E.2d 525, 526 (1952). Our Supreme Court has specifically recognized the limitation contained in Section 2578 of the Revisal of 1905, Chapter 61, a direct predecessor to N.C. Gen. Stat. \u00a7 40A-3(a), applies to petitioner as a private condemnor. R. R. Manufacturing Co. v. Mecklenburg Mfg. Co., 166 N.C. 168, 180-81, 82 S.E. 5, 10 (1914). The prohibitions contained in the statutes have remained virtually unchanged for 155 years and have been continuously re-codified by our General Assembly in each revisal of the North Carolina General Statutes. Mount Olive, 235 N.C. at 260, 69 S.E.2d at 526.\nA. Burden of Proof\nThe petitioner bears the burden of: (1) proving a legal right to condemn the property described in the petition; (2) establishing the legal sufficiency of the petition; and (3) showing affirmative compliance with all applicable statutory provisions. See Redevelopment Comm. v. Grimes, 277 N.C. 634, 643, 178 S.E.2d 345, 350 (1971) (The petitioner \u201cmust exercise the power of eminent domain pursuant to Chapter 160 and Chapter 40, and in order to invoke the power of eminent domain petitioner must affirmatively allege or prove compliance with the statutory requirements.\u201d); City of Charlotte v. McNeely, 8 N.C. App. 649, 653, 175 S.E.2d 348, 351 (1970) (\u201c[W]hen the City undertook to exercise the power of eminent domain which had been granted to it by the Legislature, it was necessary that it both allege and prove compliance with statutory procedural requirements.\u201d). The General Assembly\u2019s limited delegation of eminent domain to petitioner, as a private condemnation authority, is expressly limited by Articles One and Two of N.C. Gen. Stat. \u00a7 40A.\nPetitioner carries the burden to prove the proposed condemnation of an easement does not violate N.C. Gen. Stat. \u00a7 40A-3(a). Id. The trial court and the majority\u2019s opinion erroneously shifts the burden onto respondent to prove petitioner\u2019s purported easement actually condemns respondent\u2019s kitchen or garden. The majority\u2019s opinion relies on N.C. Gen. Stat. \u00a7 40A-25 to assert \u201crespondent bore the burden of proving that the court should not grant the petition[.]\u201d I disagree.\n\u201cIt is a well established principle of statutory construction that a section of a statute dealing with a specific situation controls, with respect to that situation, [over] other sections which are general in their application.\u201d Utilities Comm. v. Electric Membership Corp., 275 N.C. 250, 260, 166 S.E.2d 663, 670 (1969).. \u201cWhen, ... [a] section dealing with a specific matter is clear and understandable on its face, it requires no construction.\u201d Id.\nN.C. Gen. Stat. \u00a7 40A-25 is a statute of general applicability that applies, as the majority states, \u201cto eminent domain proceedings by private condemnors.\u201d N.C. Gen. Stat. \u00a7 40A-3(a) is a specific prohibition exempting from private condemnation an owner\u2019s \u201cburial ground, usual dwelling house and yard, kitchen and garden\u201d without the condemnor proving either \u201cthe consent of the owner\u201d or that the condemnation is \u201cexpressly authorized by statute.\u201d This statute clearly and unambiguously places the burden on petitioner to either show \u201cconsent of the owner\u201d or that the condemnation is \u201cexpressly authorized by statute.\u201d N.C. Gen. Stat. \u00a7 40A-3(a). This specific statute trumps the general provisions of N.C. Gen. Stat. \u00a7 40A-25. Utilities Comm., 275 N.C. at 260, 166 S.E.2d at 670.\nB. N.C. Gen. Stat. \u00a7 62-183 and $ 62-184 (2005)\nIn the absence of the owner\u2019s consent, petitioner argues its power to condemn respondent\u2019s kitchen and garden \u201cis expressly authorized by statute\u201d based upon N.C. Gen. Stat. \u00a7\u00a7 62-183 and 62-184. N.C. Gen. Stat. \u00a7 40A-3(a): I disagree.\nN.C. Gen. Stat. \u00a7 62-183 is a legislative delegation of a portion of the state\u2019s eminent domain powers to private condemnors, to include public utilities. N.C. Gen. Stat. \u00a7 62-183. The powers granted to petitioner in N.C. Gen. Stat. \u00a7 62-183 are expressly limited by the provisions of N.C. Gen. Stat. \u00a7 62-184 which expressly restate the prohibitions contained in N.C. Gen. Stat. \u00a7 40A-3(a):\nThe dwelling house, yard, kitchen, garden or burial ground of the owner may be taken under G.S. 62-183 when the company alleges, and upon the proceedings to condemn makes it appear to the satisfaction of the court, that it owns or otherwise controls not less than seventy-five percent (75%) of the fall of the river or stream on which it proposes to erect its works, from the location of its proposed dam to the head of its pond or reservoir; or when the Commission, upon the petition filed by the company, shall, after due inquiry, so authorize.\nN.C. Gen. Stat. \u00a7 62-184 (emphasis supplied).\nHere, petitioner does not propose to erect any \u201cworks\u201d on a \u201criver or stream.\u201d The State Utilities Commission (\u201cthe Commission\u201d) did not \u201cso authorize\u201d petitioner\u2019s taking of respondent\u2019s kitchen and garden. Id. The record clearly shows the Commission specifically avoided ruling on this issue and concluded, \u201cThe remaining issues regarding the valuation of land and the presence of burial grounds, gardens, and kitchens are issues which need not be resolved in the current certification proceeding but are left to be resolved, if necessary, in the final acquisition of right-of-way for the new transmission line.\u201d (Emphasis supplied). Petitioner\u2019s asserted power to take respondent\u2019s kitchen and garden is: (1) without respondent\u2019s consent; (2) not authorized by North Carolina statutes; and (3) not \u201cso authorized\u201d by the Commission. Id.\nN.C. Gen. Stat. \u00a7 40A-3(a) is an express reservation by the General Assembly from its delegation under the police power of eminent domain to private condemors to take private property unless the property is acquired with the owner\u2019s consent or through the authority granted in another statute. N.C. Gen. Stat. \u00a7 40A-3(a). The General Assembly\u2019s prohibitions contained in N.C. Gen. Stat. \u00a7 40A-3(a) are expressly recited in N.C. Gen. Stat. \u00a7 62-184. The uses and classes of private property exempt from being taken are recited verbatim. N.C. Gen. Stat. \u00a7 62-184.\nThe exempt properties are those regarded as worthy of the highest protections from interference by others and are so closely related to a person\u2019s shelter, food, maintenance, and the sacred grounds containing the remains of family members. These prohibitions have been maintained and continued virtually unchanged for over 155 years, for more than one half of the time of North Carolina\u2019s existence as a state. When the statutes are read together, the identical exemptions and prohibitions show the General Assembly\u2019s clear intent to prohibit a private condemnor from taking another owner\u2019s specified private property unless the condemning entity proves the consent of the owner or strict compliance with the requirements contained in both N.C. Gen. Stat. \u00a7 40A-3(a) and N.C. Gen. Stat. \u00a7 62-184.\nC. Condemnation of Respondent\u2019s Kitchen and Garden\nThe issue is whether petitioner\u2019s proposed easement condemns portions of respondent\u2019s kitchen and garden. Petitioner argues the proposed easement does not condemn a portion of respondent\u2019s garden. I disagree.\nHere, petitioner expressly carries the burden to prove the proposed easement does not condemn respondent\u2019s kitchen or garden. See Redevelopment Comm., 277 N.C. at 643, 178 S.E.2d at 350 (Petitioner \u201cmust exercise the power of eminent domain pursuant to Chapter 160 and Chapter 40 and in order to invoke the power of eminent domain petitioner must affirmatively allege or prove compliance with the statutory requirements.\u201d (emphasis supplied)); City of Charlotte, 8 N.C. App. at 653, 175 S.E.2d at 351 (\u201c[W]hen the City undertook to exercise the power of eminent domain which had been granted to it by the Legislature, it was necessary that it both allege and prove compliance with statutory procedural requirements.\u201d (emphasis supplied)).\nRespondent\u2019s uncontradicted testimony showed the land petitioner seeks to condemn has been owned by respondent\u2019s family for over a hundred years and consists of his home place, kitchen, garden, burial ground, and yard. Respondent did not consent to petitioner\u2019s taking. Respondent identified the parameters of the garden his family had established and used for many years and testified petitioner\u2019s proposed condemnation would take portions of the garden. Respondent testified the petitioner\u2019s surveying stake was placed in the middle of the garden. Petitioner failed to present any evidence whatsoever to rebut respondent\u2019s testimony and other evidence admitted. Petitioner failed to meet its burden to prove the proposed easement does not condemn respondent\u2019s garden and does not violate N.C. Gen. Stat. \u00a7 40A-3(a). The trial court erred by failing to rule petitioner\u2019s condemnation violated N.C. Gen. Stat. \u00a7 40A-3(a).\nThe trial court also erred in interpreting and applying N.C. Gen. Stat. \u00a7 40A-3(a). The trial court\u2019s finding of fact numbered 23 states: \u201cThe easement to be taken by condemnation over Respondent\u2019s property does not affect the kitchen and reasonable size garden of the Respondent as said property existed on the date the Petition was filed, February 2, 2005.\u201d The trial court hand wrote the words \u201creasonable size\u201d into the remaining typed portions of finding of fact 23. The trial court improperly imposed a quantification and a reasonableness standard onto the size or extent of respondent\u2019s garden that does not appear in N.C. Gen. Stat. \u00a7 40A-3(a).\nAs noted, N.C. Gen. Stat. \u00a7 40A-3(a) states in relevant part:\nNo such condemnor shall be allowed to have condemned to its use, without the consent of the owner, his burial ground, usual dwelling house and yard, kitchen and garden, unless condemnation of such property is expressly authorized by statute.\nOur Supreme Court has stated \u201cit is well settled that where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must give [the statute] its plain and definite meaning, and are without power to interpolate, or superimpose, provisions and limitations not contained therein.\u201d Union Carbide Corp. v. Offerman, 351 N.C. 310, 314, 526 S.E.2d 167, 170 (2000) (internal quotations and citations omitted). The right of eminent domain \u201cmust be strictly construed.\u201d Colonial Pipeline Co., 296 N.C. at 504, 251 S.E.2d at 459.\nN.C. Gen. Stat. \u00a7 40A-3(a) is clear and unambiguous and does not contain a \u201creasonable size\u201d standard to allow the trial court to limit, ignore or fa.il to enforce the express terms of the statute. Under N.C. Gen. Stat. \u00a7 40A-3(a), our General Assembly has strictly protected, for 155 years, a landowners \u201cburial ground, usual dwelling house and yard, kitchen and garden.\u201d N.C. Gen. Stat. \u00a7 40A-3(a). Allowing the trial court to judicially impose a \u201creasonable size\u201d standard on respondent\u2019s kitchen and garden would allow a court to impose a \u201creasonable size\u201d standard on respondent\u2019s home and burial grounds that is not allowed by the statute. The trial court erred as a matter of law by judicially re-drafting the statute and imposing a \u201creasonable size\u201d limitation that does not appear in N.C. Gen. Stat. \u00a7 40A-3(a). Union Carbide Corp., 351 N.C. at 314, 526 S.E.2d at 170; Colonial Pipeline Co., 296 N.C. at 504, 251 S.E.2d at 459.\nIII. Description of the Proposed Easement\nRespondent argues petitioner\u2019s petition does not sufficiently describe the easement to be condemned and failed to define with particularity the rights petitioner purports to take. I agree.\nN.C. Gen. Stat. \u00a7 40A-20 (2005) states the information that must be stated in a petition for condemnation and requires, in relevant part:\nThe petition shall be signed and verified. If filed by the condem-nor, it must contain a description of the property which the con-demnor seeks to acquire-, and it must state that the condemnor is duly incorporated, and that it is its intention in good faith to conduct and carry on the public business authorized by its charter, stating in detail the nature of its public business, and the specific use of the property[.]\n(Emphasis supplied). Petitioner was required to define with particularity: (1) the location and description of any claimed easement; and, (2) the \u201cspecific use[s]\u201d, burdens, and extent of any claimed easement. Id.; Cannon v. City of Wilmington, 242 N.C. 711, 714, 89 S.E.2d 595, 597 (1955), cert. denied, 352 U.S. 842, 1 L. Ed. 2d 58 (1956). \u201cAn easement, of course, is an interest in land, and, . . . the description thereof must not be too uncertain, vague and indefinite.\u201d Gruber v. Eubank, 197 N.C. 280, 284, 148 S.E. 246, 248 (1929). The purpose, burdens, and allowed uses of an easement must \u201cbe set forth precisely.\u201d Patrick K. Hetrick & James B. McLaughlin, Jr., Webster\u2019s Real Estate Law in North Carolina \u00a7 15-9 (5th ed. 1999).\nPetitioner also bears the burden of establishing the legal sufficiency of the petition. See Redevelopment Comm., 277 N.C. at 643, 178 S.E.2d at 350; City of Charlotte, 8 N.C. App. at 653, 175 S.E.2d at 351. While the petition provides a legal description of the easement area to be taken, it fails to describe with particularity the specific uses, burdens, and extent of the easement, attempts to provide petitioner with unbridled discretion over future additional uses and burdens and structures within the easement, and purports to muzzle respondent\u2019s objections or assertion of his underlying property rights. Cannon, 242 N.C. at 714, 89 S.E.2d at 597.\nThe petition failed to describe the number or location of power lines and poles to be constructed across respondent\u2019s property lines, the height of power lines, and the voltage of the lines, or other improvements to be located on the easement. The proposed easement states, \u201cPetitioner reserves the right to construct future facilities within said easement area and Respondent shall not interfere with or object to the construction of said future facilities.\" Without the statutorily required specificity, petitioners\u2019 purported \u201ceasement\u201d is actually a taking of all of respondent\u2019s rights, title, and interest in the property described in the petition under the ghise of an easement. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 441, 73 L. Ed. 2d 868, 886 (1982) (\u201c[A] permanent physical occupation of property is a [per se] taking.\u201d).\nPetitioner\u2019s failed to allege with particularity the extent of the specific uses, burdens, and improvements it seeks to take within the claimed easement in their petition. Cannon, 242 N.C. at 714, 89 S.E.2d at 597; N.C. Gen. Stat. \u00a7 40A-20. Petitioner\u2019s also failed to meet their burden of establishing the legal sufficiency of the petition. See Redevelopment Comm., 277 N.C. at 643, 178 S.E.2d at 350; City of Charlotte, 8 N.C. App. at 653, 175 S.E.2d at 351. The trial court erred by not dismissing petitioner\u2019s petition.\nIV. Respondent\u2019s Airport\nRespondent also argues petitioner cannot exercise the power of eminent domain in contravention of North Carolina law prohibiting the obstruction of respondent\u2019s private airport and runways. Respondent contends that the petition must also be dismissed because the proposed easement creates an obstruction and hazard to respondent\u2019s pre-existing and established airstrips in violation of N.C. Gen. Stat. \u00a7\u00a7 63-30 and 63-37.1 (2005). I agree.\nN.C. Gen. Stat. \u00a7 63-30 states:\nIt is hereby found and declared that an airport hazard endangers the lives and property of users of the airport and of occupants of land in its vicinity, and also, if the obstruction type, in effect reduces the size of the area available for the landing, taking off and maneuvering of aircraft, thus tending to destroy or impair the utility of the airport and the public investment therein, and is therefore not in the interest of the public health, public safety, or general welfare.\nN.C. Gen. Stat. \u00a7 63-37.1 states:\nAny person, other than the owner or operator of an airport, who intentionally obstructs the lawful takeoff and landing operations and patterns of aircraft at an existing public or private airport shall be guilty of a Class 1 misdemeanor.\nAn airport is defined in N.C. Gen. Stat. \u00a7 63-1 (2005) as:\n(8) \u201cAirport\u201d means any area of land or water, except a restricted landing area, which is designed for the landing and take off of aircraft, whether or not facilities are provided for the shelter, servicing, or repair of aircraft, or for receiving or discharging passengers or cargo, and all appurtenant areas used or suitable for airport buildings or other airport facilities, and all appurtenant rights-of-way, whether heretofore or hereafter established.\nUncontradicted testimony established respondent\u2019s airstrips and related facilities constitute an airport under N.C. Gen. Stat. \u00a7 63-1. The trial court found as fact that \u201cThe easement to be taken by condemnation over Respondent\u2019s property will affect in some way one or both of the two (2) airstrips of the Respondent.\u201d Based upon this unchallenged finding of fact, the trial court erred by failing to conclude as a matter of law that petitioner\u2019s petition violated N.C. Gen. Stat. \u00a7\u00a7 63-30 and 63-37.1. No finding of fact supports the trial court\u2019s conclusion of law to allow the condemnation to lawfully proceed.\nAs noted above, petitioner bears the burden of showing affirmative compliance with all applicable statutory provisions. See Redevelopment Comm., 277 N.C. at 643, 178 S.E.2d at 350; City of Charlotte, 8 N.C. App. at 653, 175 S.E.2d at 351. N.C. Gen. Stat. \u00a7 63-30 and \u00a7 63-37.1 statutorily control this petition. Petitioner failed to meet its burden of showing affirmative compliance with these statutes.\nThe term \u201cperson\u201d is defined in N.C. Gen. Stat. \u00a7 63-37.1 as \u201cany individual, firm, partnership, corporation, company, association, joint stock association, or body politic; and includes any trustee, receiver, assignee, or other similar representative thereof.\u201d N.C. Gen. Stat. 63-l(a)(17) (emphasis supplied). N.C. Gen. Stat. \u00a7 63-37.1 is a criminal statute- of general applicability, and applies to all \u201cpersons\u201d, including petitioner in its purported exercise of their power of eminent domain. Petitioner failed to offer any evidence or argument that it or other private condemnors are specifically exempted from the statutory prohibitions of N.C. Gen. Stat. \u00a7 63-30 and \u00a7 63-37.1. '\nPetitioner failed to offer any evidence to prove its petition complied with applicable statutory provisions, N.C. Gen. Stat. \u00a7\u00a7 63-30 and 63-37.1. The trial court\u2019s unchallenged finding of fact shows the proposed taking \u201cwill affect in some way one or both of the two (2) airstrips of the Respondent.\u201d The trial court\u2019s findings of fact do not support its conclusion of law, and compels a contrary conclusion. The trial court erred by not dismissing the petition.\nV. Conclusion\nThe majority\u2019s conclusion to affirm the trial court is error because: (1) N.C. Gen. Stat. \u00a7 40A-3(a) (2005) prohibits petitioner from condemning respondent\u2019s kitchen and garden without the owner\u2019s consent; (2) the trial court judicially re-drafted N.C. Gen. Stat. \u00a7 40A-3(a) and unlawfully imposed a \u201creasonable size\u201d standard on respondent\u2019s garden that does not appear and is not allowed by the clear and unambiguous language of the statute; (3) petitioner\u2019s petition does not specifically describe the uses, burdens, and extent of the proposed easement as required by N.C. Gen. Stat. \u00a7 40A-20 and seeks to enlarge, in petitioner\u2019s unbridled discretion, the uses, burdens, and structures petitioner may impose on respondent in the future; and (4) petitioner\u2019s proposed imposition of an easement on respondent\u2019s airport violates N.C. Gen. Stat. \u00a7 63-30 and \u00a7 63-37.1. These errors of law, singularly or collectively, compels dismissal of petitioner\u2019s petition. I vote to reverse the trial court\u2019s order and remand with instructions to dismiss the petition. I respectfully dissent.", "type": "concurring-in-part-and-dissenting-in-part", "author": "TYSON, Judge," } ], "attorneys": [ "Womble Carlyle Sandridge & Rice, PLLC, by Burley B. Mitchell, Jr., John C. Cooke, and Elizabeth T. Smith, and The Yarborough Law Firm, by Garris Neil Yarborough, for 'petitioner-appellee.", "Vandeventer Black LLP, by David P. Ferrell, for respondent-appellant." ], "corrections": "", "head_matter": "PROGRESS ENERGY CAROLINAS, INC., Petitioner v. WILLIAM HOWELL STRICKLAND, Respondent\nNo. COA06-20\n(Filed 20 February 2007)\n1. Appeal and Error\u2014 appealability \u2014 condemnation\u2014decision on area \u2014 remand for appointment of commissioners\u2014 substantial right \u2014 appealable\nA condemnation order is immediately appealable if it decides questions of title or area taken. The order here, which allowed condemnation but remanded the matter to the clerk for further proceedings, decided questions of area taken.\n2. Eminent Domain\u2014 private condemnation \u2014 utility line\u2014 burden of proof on respondent\nRespondent bore the burden of proving that the court should not grant a petition by an electric utility to condemn an easement for a power line. Petitioner is a private condemnor as described in N.C.G.S. \u00a7 40A-3(a); private condemnation proceedings are governed by Article 2 of Chapter 40A. N.C.G.S. \u00a7 40A-25.\n3. Eminent Domain\u2014 private utility \u2014 garden not affected\nThe trial court did not err by finding that a reasonable size garden was not affected by the easement that petitioner wished to condemn, based on respondent\u2019s burden of proof and his equivocal evidence about the size, location, and boundaries of the garden, even though the phrase \u201creasonable size\u201d does not appear in N.C.G.S. \u00a7 40A-3(a). Because of this finding, that statute, which prohibits private condemnation of gardens, does not apply.\n4. Eminent Domain\u2014 private utility \u2014 extent of easement\u2014 adequately described\nA petition for condemnation by an electric utility sufficiently described the extent of the easement to be condemned and whether petitioner had the authority to-condemn.\n5. Eminent Domain\u2014 private utility \u2014 airstrip affected statutes read together\nPetitioner, a private electric utility, had the authority to condemn property that affected airstrips. Statutes giving electric power companies the power of condemnation and those prohibiting airport hazards are in conflict; the most harmonious reading is that the \u201cobstruction\u201d and \u201chazard\u201d language in the aviation statutes do not pertain to airport rights and uses that become permanently condemned through a formal condemnation proceeding and for which just compensation is received.\nJudge Tyson concurring in part and dissenting in part.\nAppeal by respondent from judgment entered 15 August 2005 by Judge William C. Gore, Jr. in Columbus County Superior Court. Heard in the Court of Appeals 13 November 2006.\nWomble Carlyle Sandridge & Rice, PLLC, by Burley B. Mitchell, Jr., John C. Cooke, and Elizabeth T. Smith, and The Yarborough Law Firm, by Garris Neil Yarborough, for 'petitioner-appellee.\nVandeventer Black LLP, by David P. Ferrell, for respondent-appellant." }, "file_name": "0610-01", "first_page_order": 642, "last_page_order": 661 }