Yadkin River Power Co. v. Wissler

Hoke, J. Tbe power of eminent domain has been expressly conferred by statute on these electric companies which have dedicated their property to tbe public service. Eevisal, secs. 1571-77 inclusive, and sec. 2575 et seq., and this legislation has been sustained as applying to plaintiff company in Wissler v. Power Co., 158 N. C., 465. Tbe authorities also very generally bold that tbe right is not necessarily exhausted by a single exercise of tbe power, but, within tbe limits established by tbe general law or special charter, a subsequent or further exercise of tbe power may be permissible. Hopkins v. R. R., 94 Md., 257; Gardner v. R. R., 117 Ga., pp. 522, 527; R. R. v. Wilson, 17 Ill., 123; 15 Cyc., p. 576. A principle fully recognized by this Court in R. R. v. Olive, 142 N. C., 257, and Thomason v. R. R., 142 N. C., 318. Tbe power granted to this and other companies of like kind having been expressed in very general terms, they can only acquire by condemnation such “rights, privileges, and easements” as may be reasonably necessary to carry on and effect tbe bona fide purposes of tbe enterprise, and while section 2584 of tbe act provides that any person whose rights are affected may “answer tbe petition and show cause against granting tbe *274 same, and may disprove any of the facts alleged in it,” and while this “reasonable necessity” may in its ultimate phases become a judicial question, a perusal of the entire statute will clearly disclose that the extent and limit of the rights to be acquired are primarily and very largely referred to the companies or grantees of the power, and only becomes an issuable question, usually determinable by the court, on allegation of fact tending to show bad faith on the part of the companies or an oppressive or manifest abuse of their discretion — a position which presents the most feasible method of dealing with the subject, and in our opinion accords with the better considered cases. Durham v. Riggsbee, 141 N. C., 128; In re N. Y. v. Hudson River R. R., 77 N. Y., 248; N. Y. Central v. Metre Gas Agent, 63 N. Y., 326; R. R. v. Telegraph Co., 30 Col., 133; R. R. v. Spier, 56 Pa. St., 325; Wheeling R. R. v. Toledo R. R., 72 Ohio St., 368; Telegraph Co. v. Oregon Short Line, 23 Utah, 474; In re N. Y. and Harlem R. R., 46 N. Y., 546; North Mo. R. R. v. Gott, 25 Mo., 540; 2 Lewis Eminent Domain (3d Ed.), sec. 601; 15 Cyc., p. 637; Biddle v. Water Co., 190 Pa. St., 194. It is true that in Love v. R. R., 81 N. C., 434, the Court said that both the value and extent of the right of way in proceedings of this character should be referred to the commissioners, but an examination of the case will disclose that the special statute considered on that appeal expressly provided that the “quantity as well as the value of the easement should be determined by the commissioners,” and accordingly, in a subsequent case, R. R. v. R. R., 104 N. C., pp. 658-665, decided intimation is given that the principle did not apply to the acquisition of a right, of way under the provisions of the general law. The extended discretion accorded to public-service corporations by this interpretation of the statute does not, in our opinion, afford just ground for apprehension that the rights obtainable will be greatly abused, for it must be remembered, as suggested in some of the cases, that the ordinary uses of that portion of the right of way not actually required for the needs of the company remain with the owner, and the amount of compensation to be made; dependent as it is largely on the width of the right of way and the extent of the easement, will act in *275 wholesome restraint of any disposition to seek more than .is actually required. A contrary positio’n, too, would be to "seriously embarrass and at times threaten the success of enterprises giving promise of great benefit to the communities affected. Ordinarily and in its proper acceptation, the term “right of way” is understood to be an easement in the lands of another attaching to some specific portion of the land, defined and ascertainable by specific-surf ace boundaries (Joy v. City of St. Louis, 138 U. S., 44; R. R. v. Paddock, 75 Ill., 616); but our statute applicable to these companies in question is much broader in its scope and terms and must be given a more extended meaning. Thus in section 1572, Eevisal, they are authorized to “treat with the owner of any lands over which their lines are proposed to be erected for a right of way for planting, repairing, and 'preservation of their poles or other property.” Under section 1574, the proceedings for condemnation must set forth the “use, easement, privilege, or other right claimed by the company.” In section 2575, also made applicable to these companies, it is provided “that such company may at any time enter upon the lands through which they may desire to conduct .their lines,” etc. . . . “lay out the same as they may desire, and may also‘enter on such contiguous lands along the route as' may be necessary for depots, warehouses, etc., and other buildings required for the accommodation of their offices, servants,” and for the “protection of their property.” Again, in section 2576, it is enacted: “For the purpose of constructing its works and necessary appurtenances thereto, or of repairing them after they shall have been made, or of enlarging or otherwise altering them, the company may, at any time, enter on any adjacent lands, and cut, dig, and take therefrom any wood, stone, gravel, or earth which may be deemed necessary: Provided, that they shall not, without the consent of the owner, destroy or injure any ornamental or fruit trees.” From these and other portions of the act it appears that the power of condemnation granted to these companies is not confined to a right of way, delimited by surface boundaries, but may be extended to cutting of trees or removing obstructions *276 outside of these boundaries when required for the reasonable preservation and protection of their lines and other property. The terms, rights, and privileges used in our statute are broad enough to include the right sought in the present petition (6 Words and Phrases, p. 5583), and in view of the positions stated, sustained as they are in reason and authority, we are of opinion that the petitioner on the facts as they now appear should be allowed to condemn the right to cut these trees, paying for this right and privilege, as in other eases, the value of the trees cut and the damage done to the land by reason of cutting the same. McLean v. R. R., 158 N. C., 498; 74 S. and E., p. 461. There is error, and this will be certified, that further proceedings may be had in accordance with the opinion. Reversed.