#### M. A. TORRENCE et al. v. CITY OF CHARLOTTE and CHARLOTTE PARK AND TREE COMMISSION.

(Filed 19 November, 1913.)

1. Corporations — Condemnation—Fee Simple — Nonuser—Reversion —Interpretation of Statutes.

Tbe Legislature has the power to authorize a waterworks company to acquire a fee in lands, and where the charter of such corporation gives the right to condemn land “to its use in the manner now provided. for the condemnation of lands for railroads and other public uses,” and was granted when a statute (see. 20, ch. 62, Battle’s Revisal) was in force, providing “the lands assessed and condemned . . . shall be vested in the company in fee simple,” the charter will be construed, under the provision of the statute, as giving the right to the company to acquire the land in fee, in condemnation proceedings. •

2. Corporations —- Waterworks — Condemnation—Fee—Nonuser—Reversion.

Where it appears in a proceeding by a waterworks company to condemn lands, that the price assessed and. paid for the lands thereunder was the full value of the fee, which the proceedings purported to transfer, the lands do not revert to the original owner of heirs at law for nonuser of the lands for the purposes for which they were acquired.

*5633. Same — Statutes — Substitution of Uses — Interpretation of Statutes — Constitutional Law.

A waterworks company having acquired lands under condemnation proceedings, authorized by its charter, and thereunder paid the full value of the fee, thereafter conveyed them to the city for the purpose of a public park, with authority under a legislative enactment for the change in the use of the lands indicated: Held, that should the waterworks company not have acquired the fee, the Legislature had the power to authorize the substitution of the one public use for the other, and the lands did not revert to the original grantor, or his heirs at law, for nonuser of the lands for the original purpose.

Appeal by plaintiffs from Webb, J., at Mareb Term, 1913, of MECKLENBURG.

F. I. Osborne and Maxwell ■& Eeerans for flmntiffs.

Gansler & Oansler, P. 0. Whitlock, and Chase .Brenizer for defendants.

Glare, C. J.

The plaintiffs, heirs at law and devisees of the •original' owners of the lands, brought this action against the city of Charlotte and the Charlotte Park Commission to recover 9 acres of land on which was formerly located the waterworks pumping station and reservoir of the city, upon the ground that the defendants having ceased to use said property for waterworks purposes, the title thereto had reverted to the plaintiffs.

The answer denied the plaintiffs’ right to recover upon the grounds:

1. That by virtue of the condemnation proceedings the Charlotte Waterworks Company, under whom the defendants claim, acquired an indefeasible fee in said lands.

2. But even if the grantor of the defendants did not acquire an indefeasible fee in the lands in question, still there was no reverter to the plaintiffs, because the defendants were expressly authorized by the General Assembly to discontinue the use of said lands for waterworks purposes and to convert them into a public park.

Under chapter 90, Private Laws 1881, the Charlotte Waterworks Company was authorized to purchase or condemn lands *564for its purpose; and tbe land was taken under condemnation proceedings. Tbe report, wbicb was confirmed by tbe court, set forth that $112.50 per acre was tbe full value thereof, wbicb tbe parties further agreed was “tbe full market value of said lands.”

By virtue of chapter 32, Laws 1905, tbe defendant Charlotte Park Commission was created and a deed from tbe 'Waterworks Company was executed to it, conveying said lands upon condition that they should be perpetually used for a “public park for tbe white people.”

Tbe plaintiffs contend that tbe waterworks under its charter could acquire only an easement in tbe lands for waterworks purposes, and that, consequently, on tbe property ceasing to be used for that purpose it reverted to tbe plaintiffs. Tbe contention of the defendants is that tbe Waterworks Company bad tbe power to acquire by condemnation or otherwise, and under tbe condemnation proceedings they did acquire and paid for an indefeasible fee simple in tbe said lands; and that if this was not so, that tbe Legislature bad tbe right to authorize tbe use of, tbe lands to be changed from one public purpose (waterworks) to another (public park), wbicb prevented any forfeiture for nonuser or misuser.

Tbe Legislature bad tbe power to authorize tbe Waterworks Company to acquire an indefeasible fee simple. R. R. Co. v. Davis, 19 N. C., 467; 2 Lewis Em. Dom. (3 Ed.), sec. 448; Nichols Em. Dom., sec. 291; Tellen v. Medford, (Mass.) 108 Am. St., 459, this last citing Cooley Const. Lim. (7 Ed.), 809 and notes thereto.

Tbe Legislature having provided in tbe charter of tbe Waterworks Company that it should have tbe right to condemn land “to its use in tbe manner now provided by law for tbe condemnation of lands for railroad or other public uses ” this language must be referred back to sec. 20, ch. 62, Battle’s Revisal, then in force, wbicb provided “tbe land assessed and condemned . . . sháll be vested in tbe company in fee simple.”

Tbe judgment confirming tbe report of tbe commissioners in tbe condemnation of this land for tbe waterworks stated that *565tbe land bad been assessed “tbe full value thereof at tbe sum of $996.75,” being, as already said, $112.50 per acre. It is well settled tbat when tbe city acquired an indefeasible fee in tbe latter for waterworks, there could be no forfeiture for nonuser or misuser. 2 Lewis Em. Dom., 1500. In fact, no authority should be necessary for tbat purpose. To same effect, 3 Dillon Mun. Corp. (5 Ed.), 1620.

There are numerous decisions tbat when a common carrier acquires a “right of way” by condemnation, it acquires only an “easement” for tbat purpose. R. R. v. Sturgeon, 120 N. C., 225, and citations thereto, in Anno. Ed. When there is a nonuser, tbe land in such cases does not revert, but tbe easement simply ceases to exist. More than this, the common carrier cannot call for tbe full width of its right of way, notwithstanding its condemnation of, and payment for, tbe same, until actually needed for its purposes. R. R. v. Sturgeon, supra. But this has no application where tbe condemnation is for a purpose requiring tbe entire ownership, as for waterworks, and especially when tbe judgment in such proceedings, and the' agreement of tbe parties, show tbat “full market value” was paid'.

But if it were conceded tbat tbe Waterworks Company acquired only an easement, it was within tbe authority of tbe Legislature to authorize tbe city to change tbe public use from waterworks to tbat of a public park, the latter being not less advantageous or more burdensome to tbe contiguous landowners. This was fully considered and decided in Bass v. Navigation Co., 111 N. C., 446, in which tbe Court said (p. 449) : “Tbe law applicable in our case is, by its terms, retrospective, and we do not think tbat tbe Legislature transcended tbe limits of its powers in providing for tbe substitution of one public agency instead of another (in tbat case tbe change in tbe use of tbe canal from navigation to manufacturing purposes), and thereby postponing tbe possibility of tbe reverter, if it existed at all. Tbat such - contingent claim to the reversion is, at best, where admitted to exist, only an expectancy, defeasible at tbe will of tbe State, is made more apparent when we recall the admitted principle tbat it rests with tbe sovereign to insist upon tbe for*566feiture for failure on the part of the corporation to comply with its charter. And if in our case tbe State bad not moved, and should never move, in the matter, there could bé no dissolution.”

In Malone v. Toledo, 28 Ohio State, 655, the Court held, in an able and exhaustive opinion: “Whatever the estate is, or however denominated, whether fee or easement, as to all property appropriated under the exercise of the law of eminent domain, we think that the real estate so appropriated for one p articular public use may by legislative authority be applied to another public use, and this is not necessarily an abandonment, nor is it a forfeiture of the public interest.”

In Strock v. East Orange, (N. J.) 77 Atlantic, 1051, it is said: “When land has been acquired for a public use, as for a park, by condemnation and payment to the owner of its full value, it seems to be competent to authorize the municipality so acquiring it to use it for other purposes.”

Besides the explicit decision in Bass v. Navigation Co., above cited, in a later case, Wilson v. Leary, 120 N. C., 90, on the question of a reverter of lands upon the dissolution or extinction of a corporation, it was held, expressly citing and overruling Fox v. Horah, 36 N. C., 58, as follows: “Upon the dissolution or extinction of a corporation for any cause, real property conveyed to it in fee does not revert to the original grantors or their heirs; and its personal property does not escheat to the State; and this is so whether or not the corporation was limited by its charter or general statute.”

This has been cited and approved in Broadfoot v. Fayetteville, 124 N. C., 485, which called attention to the fact that Fox v. Horali had been overruled. It had indeed been previously overruled, in effect, in VonGlahn v. DeRosset, 81 N. C., 461. In 2 Kent Commentaries, 307, note, it is said of the doctrine of reverter: “This rule of the common law has in fact become obsolete and odious.” In 5 Thompson Corp., sec. 6730, it is. said that a reverter applies only to a restricted class of corporations; as, for instance, where a railroad company acquired a right of way as an easement, and on the cessation of such ease*567ment tbe land is relieved of .that burden. Land taken for waterworks is for a “public use.” Tbat taken for a railroad is taken for a “gmsi-publie use” only.

In Gray on Perpetuities, secs. 44-51, is shown that “My Lord Coke’s doctrine of reverter rested on the dictum -of a fifteenth century judge (Mr. Justice Choke in the Prior of Spalding’s case, 7 Edward IV., 14 (1467), and is contrary to the only case really deciding the point, Johnson v. Norway, Winch., 37 (1622), though Coke’s statement has often been referred to as law.” The above is quoted from the opinion in Wilson v. Leary, 120 N. C., 93, which states that the modern doctrine is that “upon the dissolution of a corporation the title to the real property does not revert to the original grantors nor their heirs,” citing 5 Thompson Corp., sec. 6747; Owen v. Smith, 31 Barb., 641; Towar v. Hale, 46 ib., 361.

Affirmed.