#### TOWN OF MOUNT OLIVE v. CHARLES G. COWAN and Wife, MARY WOOTEN COWAN.

(Filed 19 March, 1952.)

1. Eminent Domain § 5—

The power of eminent domain is inherent in the State, and the power can be delegated by the General Assembly only when the purposes for which it may be exercised are enumerated and the procedure for such exercise prescribed.

2. Eminent Domain § 2—

The exercise of the power of eminent domain is always subject to the principle that there must be definite and adequate provision made for reasonable compensation to the owner.

3. Eminent Domain § 6—

A municipal corporation can exercise the right of eminent domain only when and to the extent authorized by its charter or by general law.

4. Same—

A municipality is given the right to condemn land for street purposes by general law, G.S. 160-205, and such right is not limited by the provisions of G.S. 40-10, which applies to those corporations named in the preceding sections of that statute, in exercising the power of eminent domain under that act, and therefore that the land sought to be condemned for street purposes by the city was a part of respondents’ premises, consisting of yard and garden, and upon which their dwelling is located, is not a bar to the proceedings by the municipality.

Appeal by respondents from *Bennett, Special Judqe,*October Term, 1951, of Wayne.

The petitioner, Town of Mount Olive, instituted this proceeding in the Superior Court of Wayne County to condemn certain property of the respondents, situate in the Town of Mount Olive, for street purposes, after tbe petitioner was unable to agree with the respondents for the purchase thereof. The land sought to be condemned is a part of the respondents’ premises, consisting of their yard and garden, and upon which their dwelling house and garage are located.

The respondents filed an answer to the petition and pleaded in bar of the right of the petitioner to condemn any portion of their premises, the provision of G.S. 40-10. The Clerk of the Superior Court appointed Commissioners to appraise the property of the respondents, and upon filing of the Commissioners’ report, the respondents filed exceptions thereto. The Clerk overruled the exceptions and confirmed the report. The respondents appealed to the Superior Court. The trial judge, after hearing the arguments of counsel on both sides, held the plea in bar insufficient to prevent the Town of Mount Olive from proceeding with the condemnation of the land involved and entered an order to the effect that *260the petitioner is entitled to proceed to trial on the issue of damages resulting from the condemnation of the land described in the petition.

The respondents appeal and assign error.

*Dees & Dees, Charles 0. Whilley, and Julian T. Plythe for petitioner, appellee.*

*Paul B. Fdmundson, James N. Smith, and J. Melville Broughton for respondents, appellants.*

DeNNy, J.

The charter of the Town of Mount Olive contains no provision authorizing it to condemn land for street purposes. Hence, the petitioner brought this proceeding pursuant to the provisions of G.S. 160-204 and 160-205 which authorize municipalities to condemn land for various purposes.

The question raised and presented for decision on this appeal is whether a municipality may condemn a dwelling house, yard, kitchen or garden, or any part thereof, for the purpose of widening or extending a street under the authority granted by the above statutes, or is such authority subject to the limitation contained in G.S. 40-10?

The limitation contained in G.S. 40-10 was enacted by the General Assembly of 1852, chapter 92, section 1, which was an act to define the duties and powers of turnpike and plankroad companies. It was codified in the Revised Code of 1855, chapter 61, section 21, and read as follows: “No 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.” 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.

The right to exercise the power of eminent domain, as set forth in General Statutes, chapter 40, article 1, sections 1 through 10, was given to certain corporations, as defined therein, for the purpose of enabling them to construct the works or projects enumerated in the article and which involve a public use or benefit, among them being as follows:

> “1. Railroads, street railroads, plankroads, tramroads, turnpikes, canal, pipe lines originating in North Carolina for the transportation of petroleum products, telegraph, telephone, electric power or lighting, public water supply, flume, or incorporated bridge companies.

> “2. Municipalities operating water systems and sewer systems and all water companies operating under charter from the State or license from municipalities, which may maintain public water supplies, for the purpose of acquiring and maintaining such supplies.”

The right to exercise the power of eminent domain belongs to every independent government exercising sovereign power as a necessary inci*261dent to its sovereignty. And tbis power, unless otherwise provided in the organic law, rests solely in the state unless by Legislative action the power is delegated and the purposes for which it may be exercised enumerated and the procedure for such exercise prescribed. The right to exercise the power of eminent domain, however, is always subject to the principle that there must be definite and adequate provision made for reasonable compensation to the owner of the property proposed to be taken. *Jeffress v. Greenville,*154 N.C. 490, 70 S.E. 919; *Durham v. Rigsbee,*141 N.C. 128, 53 S.E. 531; *Morganton v. Hutton,*187 N.C. 736, 122 S.E. 842; 18 Am. Jur., Eminent Domain, section 19, page 645, and section 304, page 949; 29 C.J.S., Eminent Domain, section 2, page 777, *et seq.,*and section 100, page 904.

Therefore, a municipal corporation, being a creature of the Legislature, can only exercise the right of eminent domain when authorized to do so by its charter or by the general law. *Lloyd v. Venable,*168 N.C. 531, 84 S.E. 855; *In re Southern R. Co. Paving Assessment,*196 N.C. 756, 147 S.E. 301. Consequently, until 1917, it was a general practice to grant to towns and cities, in their charters, the right to exercise the power of eminent domain in order to obtain property for the construction or widening of streets, and for various other purposes. *Long v. Town of Rockingham,*187 N.C. 199, 121 S.E. 461; *Lee v. Town of Waynesville,*184 N.C. 565, 115 S.E. 51; *Jeffress v. Greenville, supra; Rosenthal v. Goldsboro,*149 N.C. 128, 62 S.E. 905. Finally, the General Assembly, by the enactment of chapter 136, Public Laws of 1917, sub-ch. 4, section 1, codified as C.S.

2791 and 2792 (now G.S. 160, sections 204 and 205), gave this right to all cities and towns. *Raleigh v. Hatcher,*220 N.C. 613, 18 S.E. 2d 207; *Charlotte v. Heath,*226 N.C. 750, 40 S.E. 2d 600, 169 A.L.R. 569. See also *Winston-Salem v. Ashby,*194 N.C. 388, 139 S.E. 764. Likewise, other acts have been passed by the General Assembly giving various public agencies and public utility companies more comprehensive power to condemn land than those granted in chapter 40, article 1, of our General Statutes.

The “Revision Commission” appointed pursuant to the provisions of chapter 252 of the Public Laws of 1917, for the purpose of “the compiling, collating, and revising' of the public statutes of North Carolina,” in its report to the General Assembly, having codified various statutes giving to certain corporations the power to condemn land for purposes not included in section 2575 of the Revisal of 1905, chapter 61, among them being sub-ch. 4, section 1, of chapter 136 of the Public Laws of 1917, as sections 162 and 163, ch. 56, art. 16 — Municipal Corporations, in such report, added to section 2578 of the Revisal of 1905, the following provision, “unless condemnation of such property is expressly authorized.” The section was further amended, it appears, after the report of the *262Revision Commission was received by tbe General Assembly, since it was codified as section 1714 in the Consolidated Statutes of 1919, and contains tbe following language: “No sucb corporation shall be allowed to bave condemned to its use, without tbe consent of tbe owner, bis dwelling bouse, yard, kitchen, garden or burial ground, unless condemnation of sucb property is expressly authorized in its charter or by some provision of tbe Consolidated Statutes.” This section is now codified as G.S. 40-10. And sections 162 and 163 in tbe report of tbe Revision Commission, referred to above, were codified as sections 2791 and 2792 of tbe Consolidated Statutes, and brought forward in G.S. 160, sections 204 and 205.

G.S. 160-204 authorizes tbe governing body of any city, or any board, commission, or department of tbe government of sucb city having tbe management and control of tbe streets, parks, playgrounds, electric lights, gas, power, sewerage or drainage systems, or other public utilities, to purchase sucb land, either within or without tbe city, when in tbe opinion of tbe governing body of tbe city, or other board, commission, or department of tbe government of sucb city having control of its'streets, or other utilities, sucb purchase “shall be necessary for tbe purpose of opening, establishing, building, widening, extending, enlarging, maintaining, or operating any sucb streets, parks, playgrounds,” or other public utilities, and to pay sucb compensation therefor as may be agreed upon.

G.S. 160-205 provides : “If sucb governing body, board, commission or department of tbe government of sucb city are unable to agree with tbe owners thereof for tbe purchase of sucb land, right of way, privilege) or easement, for tbe purposes mentioned in tbe preceding section, or for a site for city ball purposes, condemnation of tbe same for sucb public use may be made in tbe same manner and under tbe same procedure as is provided in chapter Eminent Domain, article 2; and tbe determination of tbe governing body, board, commission, or department of government of sucb city of tbe land necessary for sucb purposes shall be conclusive.”

In tbe case of *Selma v. Nobles, et als.,*183 N.C. 322, 111 S.E. 543, tbe Town of Selma undertook to condemn certain property for cemetery purposes. Tbe area sought to be condemned belonged to one of tbe defendants. Tbe other defendants owned and occupied residences near tbe area sought to be condemned. No water was available to these defendants for domestic use and consumption except from wells on their respective premises. It was contended that tbe location of a cemetery in this particular area would constitute a nuisance, so affecting tbe homes of tbe defendants as to bring tbe case within tbe exceptions contained in C.S. section 1714 (now G.S. 40-10).

Tbe Town of Selma bad obtained an amendment to its charter by chapter 116, Private Laws of 1915, giving it tbe power to condemn land for tbe purposes of a cemetery, “in tbe same manner as lands are eon-*263demned by railroads and public utility companies.” This Court beld that since railroads and public utility companies were subject to the limitation contained in C.S. section 1714 (now G.S. 40-10), so was the Town of Selma. However, the Court said: “Undoubtedly, the Legislature could confer the power to condemn property for a public purpose, even to the extent of taking a man’s home, for all private property is liable to be appropriated for the public use in the reasonable exercise of the police power. *Thomas v. Sanderlin,*173 N.C. 329, citing 6 R.C.L. 193.” *Jeffress v. Greenville, supra.*

In *Lee v. Waynesville, supra,*the plaintiff undertook to restrain the defendant from condemning a portion of plaintiff’s yard for street purposes. The plaintiff and her husband, had erected a large and expensive residence on the premises approximately thirty years prior thereto and were occupying it as their home at the time of the institution of the action. This Court held that the provisions contained in the charter of the defendant, Public Laws 1885, ch. 127, section 16; Public-Local Laws, Extra Session 1921, ch. 28, sec. 3; C.S. 2791 and 2792 (now G.S. 160, sections 204 and 205), gave the Board of Aldermen of the Town of 'Waynesville ample authority to make the proposed street improvements and to condemn the needed portion of plaintiff’s property for the purpose, on payment of reasonable and just compensation, citing *Jeffress v. Greenville, supra,*and *Waynesville v. Satterthwait,*136 N.C. 226, 48 S.E. 661.

It will be noted that G.S. 40-10 is a part of article 1, chapter 40, of our General Statutes which grants the right to exercise the power of eminent domain in connection with the construction of the projects enumerated in said article. Municipalities were not included among the corporations authorized to condemn land under the provisions of what is now chapter 40 of our General Statutes, article 1, until 1911. Chapter 62, section 25, of the Public Laws of 1911 reads in pertinent part as follows : “All municipalities operating water systems and sewer systems, . . . may acquire by condemnation such lands and rights in lands and water as are necessary for the successful operation and protection of their plants, said proceedings to be the same as prescribed by law for acquiring right of way by railroad companies.” No such limitation on the right of a municipality to condemn land for the purposes enumerated in G.S. 160-204, is included in G.S. 160-205. Therefore, in our opinion the limitation contained in G.S. 40-10 is a limitation only upon such corporations as are defined and named in the preceding sections in the article, when exercising the power of eminent domain granted in the act, or the amendments thereto, in connection with the construction of the works or projects enumerated therein, and pursuant to the authority granted thereby.

It would be illogical to assume that the General Assembly intended to place a limitation upon the power of a municipality to condemn land for *264street purposes when such, municipality was not given the power to condemn land for such purposes in the original act, of which the limitation was a part, or by any amendment thereto. A municipality, at the present time, could not condemn land for street purposes under the substantive power granted in G.S. 40, article 1, sections 1 through 9, even if the limitation contained in G.S. 40-10 had never been enacted. And the mere fact that the procedure outlined in chapter 40, article 2 of the General Statutes, sections 40-11 to 40-29, must be followed in condemning property for the imrposes enumerated in G.S. 160-204, does not impose upon the municipality the limitation contained in G.S. 40-10. *In re Housing Authority,*233 N.C. 649, 65 S.E. 2d 761.

In our opinion, the power granted to a municipality to condemn land for street and other purposes by G.S. 160-204 and 160-205, is not limited or restricted by G.S. 40-10.

In view of the conclusion we have reached, the judgment of the court below is

Affirmed.