Orange Water and Sewer v. Estate of Armstrong

237 S.E.2d 486 (1977)

34 N.C. App. 162

ORANGE WATER AND SEWER AUTHORITY v. ESTATE of Nancy ARMSTRONG, Deceased, and Coy Armstrong, C. V. Bradshaw and wife, Effie Bradshaw, Elmer June Bradshaw and wife, Kitty Felmet Bradshaw, Robert E. Bradshaw and wife, Minnie Bradshaw, A. G. Crawford Heirs, Joel Crawford and Rebecca Crawford, Cecil Clay Crawford, single, and Beulah Mae Crawford, Maurice M. Henkels and wife, Helen M. Henkels, W. Bruce Holt and wife, Nancy F. Holt, Aubrey W. Ivey and wife, Alice Walker Ivey, Edward S. Johnson and wife, Nancy M. Johnson, Alvis Brewer Lloyd, single, John D. Lloyd and wife, Carolyn Shotts Lloyd, W. Banks Lloyd and wife, Hazel P. Lloyd, Erle F. Lloyd and wife, Priscilla W. Lloyd, Gladys T. Snipes, Executrix of W. M. Snipes, Deceased, Carrie Teer Snipes, J. M. Snipes, Jr. and wife, Lora Snipes, Charles W. Snipes and wife, Francis Snipes, Teer Farms, Inc., Charles E. Teer and wife, Leta C. Teer, Thomas E. Teer and wife, Juanita Riley Teer, Thomas Y. Teer and wife, Evelyn M. Teer, James C. Thompson and wife, Betty A. Thompson, Forrest W. Young and wife, Berna Pinner Young.

No. 7715SC492.

Court of Appeals of North Carolina.

September 26, 1977.

Certiorari Denied November 11, 1977.

*487 Claude V. Jones, Durham, for plaintiff appellee.

Hunt & Abernathy, by George E. Hunt, Graham, for defendant appellants.

Certiorari Denied by Supreme Court November 11, 1977.

VAUGHN, Judge.

Plaintiff, Orange Water and Sewer Authority, was created pursuant to Article 1, Chapter 162A of the North Carolina General Statutes. G.S. § 162A-6 enumerates its powers which include the power "[t]o acquire in the name of the authority by .. exercise of the right of eminent domain in accordance with the General Statutes of North Carolina which may be applicable to the exercise of such powers by municipalities or counties, any lands or rights in land or water rights in connection therewith...." This power is further subject to the provisions of G.S. § 162A-7(a) which states that "[n]o authority shall institute proceedings in the nature of eminent domain to acquire water, water rights, or lands having water rights attached thereto without first securing from the Board a certificate authorizing such acquisition."

Defendants contend that plaintiff has no right to go on their lands for the purpose of making surveys until it has secured the certificate authorizing the institution of eminent domain proceedings and, consequently, cannot bring this action to enforce that right. We cannot sustain that contention.

The portion of G.S. 162A-6 we have quoted gives plaintiff the power of eminent domain to be exercised under any statute applicable to municipalities. G.S. 160A-263 provides that "[a]ny city, without having adopted a preliminary condemnation resolution *488... is authorized to enter upon any lands ... to make surveys, borings, examinations, and appraisals as may be necessary or expedient in carrying out and performing its rights or duties under this Article [Eminent Domain]." Moreover, G.S. 160A-241 allows a city at its election to use the procedures of Article 2 of Chapter 40. G.S. 40-3 also allows a preliminary entry to lay out routes. Plaintiff, therefore, having the power of eminent domain possessed by cities, may also enter lands for the purpose of making surveys prior to the institution of eminent domain proceedings.

The present action is not one "in the nature of eminent domain" which must await the granting of the certificate required by G.S. 162A-7. It is, instead, an action to enforce plaintiff's right of entry prior to the institution of such proceeding. A similar question was presented in Duke Power Co. v. Herndon, 26 N.C.App. 724, 217 S.E.2d 82 (1975). The Court held:

"[t]he present action is not an action to condemn a right-of-way across defendants' lands. This is an action to enforce the statutory right of plaintiff under G.S. 40-3 to `enter upon' defendants' lands for the purpose of making a survey of the proposed route."

As a practical matter, it appears that the statutory right of entry should be exercised before petitioning for the certificate authorizing the acquisition. The petition must include a description of the waters and water rights involved, plans for impounding the waters, and the names of the riparian owners affected thereby insofar as known. The certificate may be issued only after a finding of maximum benefit based on a variety of criteria including the probable detriment to present water and watershed users that will be caused by the project.

In summary, we hold as follows. The procedures for eminent domain governing cities and counties apply to Water and Sewer Authorities created pursuant to Article 1 of Chapter 162A with the additional requirement that, before an action in eminent domain is commenced, a certificate of authorization must be obtained. The Authority's right of eminent domain is not dormant before certification. Because it has the power of eminent domain possessed by cities, it may enter and survey prior to the institution of eminent domain proceeding.

Defendants' assignments of error directed to the findings of fact have been considered and are overruled. There is ample evidence to support the order allowing the temporary injunction.

The order is affirmed.

Affirmed.

HEDRICK and CLARK, JJ., concur.