SOUTHERN RAILWAY COMPANY v. City of Greensboro , 247 N.C. 321 ( 1957 )

Higgins, J.

This appeal is from the order of Judge Olive dissolving the temporary restraining order issued by Judge Preyer. The order of Judge Olive contains the following: “. . . the Court finds that the work, the performance of which was restrained by said temporary restraining order, is pursuant to a plan and a contract duly adopted in good faith by the City Council of the City of Greensboro in the exercise of its judgment and discretion for the important public work of building and improving streets and storm sewer drains, and that to stop this work would greatly interfere with public improvements that are for the public good and that tend to develop the country and its resources.”

It must be understood this Court is discussing only the issues involved. The merits must be left to the trial court. However, we think the pleadings raise questions more basic than whether the improvement was pursuant to plan and a contract entered into in good faith in the exercise of the Council’s discretion, and that to stop the work would interfere with public improvements that tend to develop the country and its resources.

The findings may be sufficient (but of this we express no opinion) to enable the City to exercise its power of eminent domain to take private property for the uses indicated. Yadkin County v. High Point, 217 N.C. 462, 8 S.E. 2d 470; Retreat Association v. Development Co., 183 N.C. 43, 110 S.E. 524; Commissioners v. Bonner, 153 N.C. 66, 68 S.E. 970. In this instance, however, the City attempts to take the property (easement) of another public service agency also possessing the power of eminent domain when the property is already in public use and alleged by the plaintiff to be necessary for that use. In this connection it is noted the City’s brief emphasizes the plaintiff’s contention by the following: “It is true, as counsel for plaintiff argue, that the whole area involved in this matter is one of the most promising industrial areas in the State.”

The map reproduced herein shows the extent to which the City proposes to make use of the plaintiff’s right of way as a thoroughfare over which 25,000 cars will pass daily and the number will be doubled within the next 12 years. Whether the labyrinth of crossings as shown by the map will carry the vehicular traffic, present and contemplated, and still permit the plaintiff to operate its railway facilities is a question for the trial court. To the extent of the interference with the railroad’s operation over its right of way the City will be taking the plaintiff’s property.

Quite understandable is the concern of the City and the public over the traffic bottleneck which has resulted from the suspension of work by court order after road facilities in existence had been partially destroyed by the City’s contractor in the attempt to carry out the City’s plans. However, it must be borne in mind the City had notice the Railway Company objected to the plan and instead of going to the courts to have the dispute determined, the City elected to execute its plans. It did so at its own risk. The record discloses the City had acquired rights of way for this project from all owners except the plaintiff. The plaintiff certainly has done nothing to waive or forfeit its rights to be heard on the issues of fact and questions of law raised by its complaint. Since the City did not resort to the courts to have the dispute resolved, the plaintiff has done so by this proceeding.

No doubt this progressive and rapidly growing city is anxious to discharge its duty to provide within its domain adequate street and highway facilities. But in this instance, if the plaintiff’s contentions are correct, the City seeks to use the strong arm of government under its general powers to take property already dedicated to a proper public use. “The power of eminent domain, as generally understood, extends only to the right to. condemn private property for public uses.” Yadkin County v. High Point, supra; Wissler v. Power Co., 158 N.C. 465, 74 S.E. 460; Jeffress v. Greenville, 154 N.C. 490, 70 S.E. 919. “The authorities are to the effect that a general authorization to exercise the power of eminent domain will not suffice in a case where property already dedicated to a public use is sought to be condemned for another public use which is totally inconsistent with the first or former use. Railroad v. Railroad, 83 N.C. 489; 20 C.J. 602. In such a case a specific legislative grant or one of unmistakable intent is required.” Yadkin County v. High Point, supra, (citing many cases). The City of Greensboro does not have specific legislative authority.

No doubt the Legislature may authorize a municipality to take (by condemnation) for public use property already devoted to another public use, but the authority must be expressly conferred by statute or must arise by necessary inference. 18 Am. Jur., Eminent Domain, p. 723. Land once appropriated by a railroad company for public use cannot, in the absence of statutory authority which is express or necessarily implied, be condemned for streets or highways if such purpose would be inconsistent with and impair or destroy its use for railroad purposes. 29 C.J.S. 869, Eminent Domain, Sec. 87; Fayetteville Street Railway v. R. R., 142 N.C. 423, 55 S.E. 345. This same principle is fully recognized in the case of Goldsboro v. R. R., 246 N.C. 101, 97 S.E. 2d 486, cited in the City’s brief; “Ordinarily, land devoted to the public use cannot be taken for another public use unless express or implied legislative authority has been given which authorizes such taking, (citing authorities) However, the rule is otherwise where the property is not in actual public use and not necessary or vital to the operation of the business of its owner.” (Citing Yadkin County v. High Point, supra). In the Goldsboro case there was a finding to the effect “that the strip of land herein sought to be condemned is not necessary or essential to the owner, Atlantic Coast Line Railroad Company, in the operation of its railroad business.”

Unquestionably the State, its subdivisions, and public agencies may acquire property by gift, by purchase, and, in proper cases, by condemnation under the power of eminent domain. In the latter class of cases the procedure is outlined.

Notwithstanding the fact that authorities who seek to take may act in the utmost good faith, something more is required than merely adopting a plan, transmitting it to the owner, and entering into a contract for the work to be done. Due process involves more than notice. Before the plaintiff is finally deprived of its property it may question the right of the City to take as planned. Acquisition of property by confiscation is limited to forfeitures and to contraband.

We have examined the many cases cited by the defendants. These cases do not mitigate or weaken but tend to support the principles enunciated in the cases herein cited, and many others of like import. Courts generally are reluctant to approve governmental shortcuts when personal and property rights are involved.

In view of the importance and seriousness of the issues involved, the facts and the reasons for this opinion have been stated at considerable length. The plaintiff has alleged an unlawful entry and a trespass upon its right of way by the City and its contractor, and that the entry is unauthorized by legislative enactment. It alleges further that if the planned construction is permitted the railroad’s ability to operate its lines will be destroyed or greatly impaired. If the plaintiff’s charge of trespass is established at the hearing, conceivably the defendant may be faced with the problem of restoring, as near as may be, the property to its former condition. But these matters are for another court.

Nothing herein is intended as a modification of the general rule that a city may provide street facilities over a railroad track by right angle crossings in such manner and under such circumstances as will not deprive the railway company of its reasonable use of its track for railroad purposes. Ft. Wayne v. Lake Shore and M. S. Railroad, 132 Ind. 558, 32 N.E. 215.

The issues presented should be heard on the merits, and to that end the status quo should be maintained until the issues in dispute have been resolved. The order appealed from is set aside and the cause is remanded to the Superior Court of Guilford County for the entry of an order, upon appropriate terms, restraining the defendants from proceeding further with the execution of its plans pending hearing on the merits.

Reversed.