{
  "id": 8549736,
  "name": "CAROLINA POWER & LIGHT COMPANY v. JOHN W. MERRITT and wife, EDITH R. MERRITT; WILLIAM D. MERRITT, JR.; JOHN W. MERRITT and WILLIAM D. MERRITT, JR., Executors of the Estate of William D. Merritt, Sr., deceased",
  "name_abbreviation": "Carolina Power & Light Co. v. Merritt",
  "decision_date": "1979-06-05",
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    "judges": [
      "Judges MARTIN (Robert M.) and ERWIN concur."
    ],
    "parties": [
      "CAROLINA POWER & LIGHT COMPANY v. JOHN W. MERRITT and wife, EDITH R. MERRITT; WILLIAM D. MERRITT, JR.; JOHN W. MERRITT and WILLIAM D. MERRITT, JR., Executors of the Estate of William D. Merritt, Sr., deceased"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nIn February 1962 the petitioner brought condemnation proceedings against these respondents, seeking to acquire for the purpose of constructing a steam electric generating plant 447.17 acres of the 558.273 acres it wishes to condemn in the present proceeding. Respondents\u2019 demurrer and their motion to dismiss were overruled. Stipulations were filed by the parties in May, and on 4 December 1962 a \u201cFinal Judgment\u201d was entered, as follows:\nTHIS CAUSE coming on to be heard and it appearing that the plaintiff, Carolina Power & Light Company, does not need any portion of the defendants\u2019 property described and for the purposes stated in the petition filed in this cause and has abandoned all plans for acquiring any portion of said property for such purposes, and it further appearing that a final judgment should now be entered setting forth such abandonment and dismissing the action.\nNOW, THEREFORE, IT IS HEREBY ORDERED, CONSIDERED,'ADJUDGED AND DECREED:\n1. That the plaintiff has abandoned all plans for acquiring the defendants\u2019 property or any portion thereof as described and for the purposes stated in the petition filed in this case.\n2. That the plaintiff has no right, title or interest in and to any portion of said property.\n3. This action is hereby dismissed and the costs of the same are taxed against the plaintiff.\nRespondents argue that this 1962 judgment is res judicata in the present action.\n\u201cBasic to the doctrine of res judicata is the premise that a plea of res judicata must be founded on an adjudication \u2014a judgment on the merits.\u201d Taylor v. Electric Membership Corp., 17 N.C. App. 143, 145, 193 S.E. 2d 402, 403 (1972). The 1962 judgment upon which respondents rely, though labelled \u201cFinal Judgment,\u201d shows upon its face that it is in fact a voluntary dismissal of petitioner\u2019s action. The only facts that conceivably were decided were that petitioner had at that time abandoned its plans to acquire respondents\u2019 property, and that it had acquired no interest in that property by its action.\nBecause the petitioner once abandoned a condemnation action involving the same parties, lands and purposes, respondents would have us find that petitioner cannot bring the present action. Our Supreme Court held, however, that the right of eminent domain \u201cis not necessarily exhausted by a single exercise of the power,\u201d Power Co. v. Wissler, 160 N.C. 269, 273, 76 S.E. 267, 269 (1912), in a case where an interest in the property actually was taken in the first condemnation proceeding. Where, as here, the first proceeding has been abandoned and no interest has been taken, certainly the right of eminent domain is not extinguished.\nRespondents next argue that petitioner was not entitled to bring this action because it failed to acquire, prior to the institution of the action, a permit from the U.S. Army Corps of Engineers to allow petitioner to excavate and fill on Mayo Creek. However, according to the uncontradicted testimony of George Frank Yelverton of the Corps of Engineers, on the date of the institution of this action, 15 June 1977, no such permit was required. Jurisdiction over waters such as Mayo Creek was not given to the Corps of Engineers until 1 July 1977. A permit which is now required but was not required at the time this action was instituted could not have been a prerequisite to the filing of this action. Respondents\u2019 argument fails.\nPetitioner\u2019s appeal from the first order of the Clerk of Superior Court was heard by Judge Walker. His order of 22 November 1977 states in part \u201c[t]hat even though the Clerk of Superior Court of Person County has not prepared a statement of the case in this proceeding as a result of a hearing before her . . . , the Court is of the opinion that the Finding of Facts as stated in [her] Judgment are sufficient for consideration of this Matter by this Court.\u201d He concluded that one of the clerk\u2019s findings of fact was incorrect and the others did not support her conclusions of law, and set aside her judgment dismissing the proceeding. Respondents assign error to the trial court\u2019s failure to hear evidence or order a statement of the case prepared by the clerk.\nG.S. 1-274 requires the clerk \u201cto prepare and sign a statement of the case, of his decision and of the appeal\u201d for the use of the judge. It has been held that this statement \u201cshould embrace the material facts [and] copies of necessary paper writings ... to the end the Judge may review the decision of the Clerk appealed from upon its full merits.\u201d Brooks v. Austin, 94 N.C. 222, 224 (1885). Here, the judgment of the clerk, which was before Judge Walker, sets out her findings of fact, and respondents have made no objections to these findings. The judge changed only one of the findings, and this because both parties stated to the court that the evidence underlying it, an answer to interrogatories, had been error. Otherwise, the court\u2019s decision to set aside the clerk\u2019s judgment was based upon his determination that the findings of fact failed to support the clerk\u2019s conclusions of law. We fail to see how any more formal statement of the case could have aided him in this determination, and we note that the Court in Brooks v. Austin, supra, required only that the clerk\u2019s statement \u201cembrace the material facts,\u201d not necessarily the evidence. In the absence of a showing that any material facts were excluded from the judge\u2019s consideration, we find no prejudicial error.\nFinally, respondents argue that the trial court erred in refusing to stay petitioner\u2019s entry upon the land pending this appeal. G.S. 40-19 states in pertinent part that \u201c[i]f the [petitioner], at the time of the appraisal, shall pay into court the sum appraised by the commissioners, then . . . the [petitioner] may enter, take possession of, and hold said lands, notwithstanding the pendency of the appeal.\u201d On 21 April 1978 Judge Hobgood ordered petitioner to deposit with the Clerk of Court the full amount awarded by the Commissioners, and respondents do not argue that petitioner has failed to do this. Instead, they rely on Airport Authority v. Irviri, 2 N.C. App. 341, 163 S.E. 2d 118 (1968), arguing that where the right to condemn is in issue, the respondents must be protected against the possibility of irreparable damage.\nThe petitioner in Airport Authority sought an air rights easement which would allow it to cut trees on respondents\u2019 property. While appeal of the commissioners\u2019 damage award was pending before the Superior Court, respondents obtained a temporary restraining order to prevent petitioner\u2019s interference with the trees on the land. Petitioner appealed from the denial of its request that the temporary restraining order be dissolved, and this Court held that, while petitioner was entitled to enter and possess the property pending final adjudication, \u201csince respondents challenge petitioner\u2019s right to condemn and the cutting or trimming of trees on the subject property would cause irreparable damage to respondents should they ultimately prevail, the Superior Court was fully empowered to grant the restraining orders.\u201d Id. at 345, 163 S.E. 2d at 121.\nThe fact that we held in Airport Authority that the Superior Court was empowered to grant a restraining order does not lead inescapably to the conclusion that it was required to do so. \u201cIt ordinarily lies in the sound discretion of the [trial] court to determine whether or not a temporary injunction will be granted. . . Conference v. Creech, 256 N.C. 128, 139-40, 123 S.E. 2d 619, 626 (1962). On appeal, we are not bound by the findings of the trial court as to the injunction, but there is a presumption that the judgment entered by the trial court is correct. Id.\nHaving reviewed the evidence in this case, we find no error in the court\u2019s refusal to grant a temporary restraining order. G.S. 40-2(3) gives petitioner the right of eminent domain, and G.S. 40-19 affords the property owner protection by allowing the court to award damages to be paid from the deposit made by petitioner in the event condemnation is ultimately defeated. In the case at bar, however, we find that respondents do not have sufficient grounds to defeat the condemnation.\nThe order of the trial court is\nAffirmed.\nJudges MARTIN (Robert M.) and ERWIN concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "Andrew McDaniel, and Ramsey, Hubbard and Galloway, by James E. Ramsey, for petitioner appellee.",
      "Bryant, Bryant, Drew & Crill, by Victor S. Bryant, Jr., for respondent appellants."
    ],
    "corrections": "",
    "head_matter": "CAROLINA POWER & LIGHT COMPANY v. JOHN W. MERRITT and wife, EDITH R. MERRITT; WILLIAM D. MERRITT, JR.; JOHN W. MERRITT and WILLIAM D. MERRITT, JR., Executors of the Estate of William D. Merritt, Sr., deceased\nNo. 789SC751\n(Filed 5 June 1979)\n1. Eminent Domain \u00a7 12\u2014 abandonment of earlier proceeding \u2014no extinguishing of right\nA final judgment entered in an earlier condemnation proceeding against respondents was not res judicata in the present proceeding since the \u201cFinal Judgment\u201d of the earlier action was in fact a voluntary dismissal and since abandonment of the proceeding in which no interest was taken did not extinguish petitioner\u2019s right of eminent domain.\n2. Eminent Domain \u00a7 7.1\u2014 obtaining permit \u2014 no prerequisite to condemnation proceeding\nA permit from the U.S. Army Corps of Engineers which is now required but was not required at the time this eminent domain action was instituted could not have been a prerequisite to the filing of this action.\n3. Courts \u00a7 6.3\u2014 appeal from clerk \u2014 findings of fact in clerk\u2019s judgment\nThe trial court, upon appeal from the clerk, did not err in failing to hear evidence or to order a statement of the case prepared by the clerk, since the judgment of the clerk set out her findings of fact and a more formal statement of the case could not have aided the judge in his determination.\n4. Eminent Domain \u00a7 15\u2014 compensation paid into court \u2014possession by condem-nor pending appeal\nThe trial court in an eminent domain proceeding did not err in refusing to stay petitioner\u2019s entry upon the land pending appeal, since petitioner had deposited with the clerk the full amount of compensation awarded by the commissioners, and respondents were thereby protected from damage. G.S. 40-19.\nAPPEAL by respondents from Hob good, Judge. Order entered 21 April 1978 in Superior Court, PERSON County. Heard in the Court of Appeals 2 May 1979.\nPetitioner seeks to acquire by condemnation respondents\u2019 land, for the purpose of constructing a steam electric generating plant. The defenses raised by respondents include a final judgment entered in 1962 which respondents allege is res judicata, and the alleged failure of petitioner to acquire from the United States Government the required consent to this construction project.\nThe proceeding was heard on the pleadings by the Clerk of Superior Court, and by the Clerk\u2019s order of 14 October 1977, the proceeding was dismissed. Petitioner appealed from this order to Superior Court. Judge Walker found that the clerk\u2019s findings of fact did not support her conclusions of law, set aside the clerk\u2019s order, and remanded the proceeding to the clerk for the appointment of commissioners. The commissioners to appraise the tracts of land were appointed on 12 December 1977.\nOn 15 December 1977, respondents, alleging newly discovered evidence that petitioner must acquire a U.S. Army Corps of Engineers permit before beginning the project, moved to have any action of the commissioners deferred, and to have the proceeding dismissed. At a hearing before the clerk on 28 December, petitioner stipulated that it must have a Corps of Engineers permit before it could dredge and fill Mayo Creek in connection with the project, and that application for this permit had been made in March 1977 but had not yet been granted. The clerk entered judgment on 30 December 1977 dismissing the proceeding.\nPetitioner appealed from this judgment to Superior Court, and a hearing was held on 27 February 1978. At the hearing, an employee of the Corps of Engineers testified that petitioner could not proceed with its construction project without a permit from the Corps of Engineers. Judge Hobgood concluded that the necessity for this permit did not prevent petitioner from acquiring respondents\u2019 land in a condemnation special proceeding under North Carolina law, and he set aside the clerk\u2019s order dismissing the proceeding. He did not remand, but retained jurisdiction in the Superior Court, and ordered the commissioners to proceed with their appraisal.\nOn 29 March 1978 the commissioners filed their report, assessing damages at $1,105,166. Petitioner\u2019s objection to this report was overruled, and on 21 April 1978 the report was confirmed by Judge Hobgood. Petitioner gave notice of appeal from this confirmation, and Judge Hobgood ordered petitioner to deposit the full amount of the award in the clerk\u2019s office pending determination of the appeal, and allowed petitioner to enter upon and possess the land while the appeal was pending. Respondents appeal.\nAndrew McDaniel, and Ramsey, Hubbard and Galloway, by James E. Ramsey, for petitioner appellee.\nBryant, Bryant, Drew & Crill, by Victor S. Bryant, Jr., for respondent appellants."
  },
  "file_name": "0438-01",
  "first_page_order": 466,
  "last_page_order": 472
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