978-1285770178 Case Printout Case CPC-29-08 Part 1

N.C.App.,2011.

Town of Midland v. Morris

Town of Midland, Plaintiff,

and

Town of Midland, Plaintiff,

and

Town of Midland, Plaintiff,

v.

Concord Police Club, Inc., Defendant.

and

Theron Keith Honeycutt and Ann Nash Honeycutt, Defendants.

and

Harry T.[ ] Morris and Maralyn R. Morris, Plaintiffs,

v.

Town of Midland, Defendant.

v.

Town of Midland, Defendant.

and

Marlene T. Cook and Jennings R. Cook, Plaintiffs,

v.

Billy James, Norris James and Amelia Goodnight, Plaintiffs,

v.

Town of Midland, Defendant.

v.

Town of Midland, Defendant.

No. COA10–322.

Jan. 18, 2011.

(1) appeal was not moot, despite pipeline’s completion;

(2) acquisition of property was “for use the city,” even in the absence of plan to furnish gas services to town citi-

zens;

(3) condemnation was for the public use;

(4) condemnation was for the public benefit;

West Headnotes

[1] Eminent Domain 148 262(1)

Property owners’ appeal in condemnation action regarding pipeline right of way was not moot, even though

pipeline construction was complete, as, if successful, property owners would be entitled to relief both in the form of

reimbursement for their costs in the action, as well as in the form of return of title to the land. West’s N.C.G.S.A.

157k48 k. Official proceedings and acts. Most Cited Cases

Court of Appeals considering town’s condemnation action for gas pipeline right of way would take judicial no–

tice of Utilities Commission order which allowed joint motion for approval of settlement and abandonment of natu–

ral gas service, as it was an important public document.

157k20(1) k. In general. Most Cited Cases

Evidence 157 23(1)

157 Evidence

gas services, as fact that other cities might soon have a need for the natural gas flowing through the pipeline had no

effect on the validity of the condemnations.

[4] Eminent Domain 148 261

nent domain case.

[5] Eminent Domain 148 34

Town’s acquisition of property by condemnation to establish a gas transmission and distribution system was

“for use the city,” even in the absence of a concrete, immediate plan to furnish gas services to town citizens; place-

ment of a tap on the pipeline and acquisition of the right to low-cost natural gas satisfied requirement that the public

enterprise be established and conducted for the city and its citizen, and contracted-for right to install a tap on the

indicated that town would eventually furnish natural gas services to its citizens. West’s N.C.G.S.A. §§ 160A–240.1,

148k6 Delegation of Power

148k9 k. To municipality. Most Cited Cases

Eminent Domain 148 13

268 Municipal Corporations

268VI Property

268k223 k. Purposes for which property may be acquired or held. Most Cited Cases

148I Nature, Extent, and Delegation of Power

148k16 Particular Uses or Purposes

148k34 k. Production and supply of oil or gas. Most Cited Cases

148 Eminent Domain

148I Nature, Extent, and Delegation of Power

148k12 Public Use

148k13 k. In general. Most Cited Cases

148 Eminent Domain

148I Nature, Extent, and Delegation of Power

148k16 Particular Uses or Purposes

148k34 k. Production and supply of oil or gas. Most Cited Cases

148 Eminent Domain

148I Nature, Extent, and Delegation of Power

148k12 Public Use

148k13 k. In general. Most Cited Cases

30 Appeal and Error

30II Nature and Grounds of Appellate Jurisdiction

30k23 k. Determination of questions of jurisdiction in general. Most Cited Cases

Standing is a jurisdictional issue and the Court of Appeals may raise the question of subject matter jurisdiction

148k284 k. Persons entitled to sue. Most Cited Cases

The real party in interest who by substantive law has the legal right to enforce a claim under statute requiring

county consent to a condemnation action by a town in a different county is the county affected by a potential viola-

tion, and not an individual property owner. West’s N.C.G.S.A. § 153A–15; Rules Civ.Proc., Rule 17, West’s

30IV(A) Persons Entitled

30k151 Parties or Persons Injured or Aggrieved

30k151(1) k. In general. Most Cited Cases

Appeal and Error 30 151(2)

An appeal may only be taken by an aggrieved real party in interest; a “person aggrieved” is one adversely af-

fected in respect of legal rights, or suffering from an infringement or denial of legal rights.

[20] Action 13 13

and

Town of Midland, Plaintiff,

and

Town of Midland, Plaintiff,

v.

Concord Police Club, Inc., Defendant.

and

Theron Keith Honeycutt and Ann Nash Honeycutt, Defendants.

and

Harry T.[ ] Morris and Maralyn R. Morris, Plaintiffs,

v.

Town of Midland, Defendant.

v.

Town of Midland, Defendant.

and

Marlene T. Cook and Jennings R. Cook, Plaintiffs,

v.

Billy James, Norris James and Amelia Goodnight, Plaintiffs,

v.

Town of Midland, Defendant.

v.

Town of Midland, Defendant.

No. COA10–322.

Jan. 18, 2011.

(1) appeal was not moot, despite pipeline’s completion;

(2) acquisition of property was “for use the city,” even in the absence of plan to furnish gas services to town citi-

zens;

(3) condemnation was for the public use;

(4) condemnation was for the public benefit;

West Headnotes

[1] Eminent Domain 148 262(1)

Property owners’ appeal in condemnation action regarding pipeline right of way was not moot, even though

pipeline construction was complete, as, if successful, property owners would be entitled to relief both in the form of

reimbursement for their costs in the action, as well as in the form of return of title to the land. West’s N.C.G.S.A.

157k48 k. Official proceedings and acts. Most Cited Cases

Court of Appeals considering town’s condemnation action for gas pipeline right of way would take judicial no–

tice of Utilities Commission order which allowed joint motion for approval of settlement and abandonment of natu–

ral gas service, as it was an important public document.

157k20(1) k. In general. Most Cited Cases

Evidence 157 23(1)

157 Evidence

gas services, as fact that other cities might soon have a need for the natural gas flowing through the pipeline had no

effect on the validity of the condemnations.

[4] Eminent Domain 148 261

nent domain case.

[5] Eminent Domain 148 34

Town’s acquisition of property by condemnation to establish a gas transmission and distribution system was

“for use the city,” even in the absence of a concrete, immediate plan to furnish gas services to town citizens; place-

ment of a tap on the pipeline and acquisition of the right to low-cost natural gas satisfied requirement that the public

enterprise be established and conducted for the city and its citizen, and contracted-for right to install a tap on the

indicated that town would eventually furnish natural gas services to its citizens. West’s N.C.G.S.A. §§ 160A–240.1,

148k6 Delegation of Power

148k9 k. To municipality. Most Cited Cases

Eminent Domain 148 13

268 Municipal Corporations

268VI Property

268k223 k. Purposes for which property may be acquired or held. Most Cited Cases

148I Nature, Extent, and Delegation of Power

148k16 Particular Uses or Purposes

148k34 k. Production and supply of oil or gas. Most Cited Cases

148 Eminent Domain

148I Nature, Extent, and Delegation of Power

148k12 Public Use

148k13 k. In general. Most Cited Cases

148 Eminent Domain

148I Nature, Extent, and Delegation of Power

148k16 Particular Uses or Purposes

148k34 k. Production and supply of oil or gas. Most Cited Cases

148 Eminent Domain

148I Nature, Extent, and Delegation of Power

148k12 Public Use

148k13 k. In general. Most Cited Cases

30 Appeal and Error

30II Nature and Grounds of Appellate Jurisdiction

30k23 k. Determination of questions of jurisdiction in general. Most Cited Cases

Standing is a jurisdictional issue and the Court of Appeals may raise the question of subject matter jurisdiction

148k284 k. Persons entitled to sue. Most Cited Cases

The real party in interest who by substantive law has the legal right to enforce a claim under statute requiring

county consent to a condemnation action by a town in a different county is the county affected by a potential viola-

tion, and not an individual property owner. West’s N.C.G.S.A. § 153A–15; Rules Civ.Proc., Rule 17, West’s

30IV(A) Persons Entitled

30k151 Parties or Persons Injured or Aggrieved

30k151(1) k. In general. Most Cited Cases

Appeal and Error 30 151(2)

An appeal may only be taken by an aggrieved real party in interest; a “person aggrieved” is one adversely af-

fected in respect of legal rights, or suffering from an infringement or denial of legal rights.

[20] Action 13 13