This is аn action instituted by plaintiff pursuant to N.C.G.S. § 40A-19, our statutory provision for private condemnation of privately owned real property. Specifically, plaintiff seeks by its action an easement over defendant’s land to enable it to provide telephone service to Mr. Dennis P. Turlington, one of its custom ers. The issue presented on this appeal is whether the triаl court erred in granting defendant’s motion, and in denying plaintiffs motion, for summary judgment on the grounds that the desired condemnation was not for “the public use or benefit” as required by N.C.G.S. § 40A-3. In an unpublished opinion, the Court of Appeals held that the trial court did not err and affirmed its orders accordingly. We reverse. We hold that the provision of telephone service, irrespective оf the number of customers affected, is an action for “the public use or benefit” and that the trial court’s orders granting summary judgment for defendant and denying summary judgment for plaintiff were therefore improper.
The forecast of evidence in this case tends to show the following facts and circumstances. Plaintiff is a North Carolina corporation and a public utility providing tеlephone services to the citizens of central North Carolina. Defendant is a private citizen who owns approximately twenty-five acres of land adjacent to North Carolina State Road 2009 in Harnett County, North Carolina. Dennis P. Turlington, one of plaintiffs customers, owns roughly twenty-one acres of land lying to the south and west of defendant’s land. Defendant’s land lies directly between Mr. Turlington’s land and the state road.
Mr. Turlington, who lives in a mobile home on his property, is a self-employed
Sometime during 1979, plaintiff installed an underground telephone cable to Mr. Turlington’s property across defendant’s land. Plaintiff chose to install the line across defendant’s land because this was the shortest route to a state-maintained road and a pre-existing telephone terminal. Plaintiff, apparently through inadvertence, failed to obtain defendant’s permission to install the cable in question or to obtain an easement or any other legal right to go on defendant’s land. Nevertheless, defendant made no objection abоut the line, nor about plaintiffs mainte nance of it, for nearly six years. However, on 5 July 1985, apparently in response to a cartway proceeding instituted against defendant by Mr. Turlington and in response to other difficulties between the two, defendant demanded that plaintiff remove the cable or face an action in trespass.
Plaintiff complied with defendant’s request and dug up the line. Left without telephone service, Mr. Turlington filed a complaint with the North Carolina Utilities Commission in October 1985 seeking to have his telephone service reinstated. In December 1985, the Commission issued a “recommended order” instructing plaintiff to restore service to Mr. Turlington by obtaining a permissive way across defendant’s property or, alternatively, by condemning a right-of-way pursuant to N.C.G.S. § 40A-19.
Accordingly, plaintiff then made numerous unsuccessful attempts to secure defendant’s permission to gain an easement or a right-of-way for the telephone line across her land. Plaintiff met with a similar lack of success upon trying to secure similar permission from other adjacent landowners for less convenient routes. Having failed to secure the permissive use of either defendant’s land or that of any other of Mr. Turlington’s neighbors, plaintiff instituted the present action on 21 February 1986.
In her answer to plaintiffs complaint, defendant asserted that plaintiff is not entitled to condemn defendant’s property because the desired condemnation is not for “the public use or benefit,” as required by N.C.G.S. § 40A-3. Moreover, in an inсluded counterclaim, defendant alleged that plaintiff is liable to her in trespass. Both plaintiff and defendant filed motions for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure. The trial court denied plaintiffs motion for summary judgment on the condemnation claim and granted plaintiffs motion for summary judgment on defendant’s counterclaim for trespass. The trial cоurt granted defendant’s motion for summary judgment on the condemnation claim, holding that, here, the desired condemnation was not for “the public use or benefit.” The Court of Appeals affirmed the trial court’s orders.
Pursuant to N.C.G.S. § 7A-31, we allowed plaintiffs petition for discretionary review of the Court of Appeals’ decision affirming the trial court’s order denying plaintiffs Petition to Acquirе an Easement for telephone service. The propriety of the trial court’s disposition of defendant’s counterclaim for trespass is not before us, and accordingly, we do not address it. The question plainly before us is this: Does provision of telephone service to a single customer constitute a “public use or benefit” for purposes of N.C.G.S. § 40A-3? The Court оf Appeals answered “no.” We believe the correct answer is “yes” and we reverse.
Eminent domain is the power of the nation or of a sovereign state to take, or to authorize the taking of, private property for a public use without the owner’s consent and upon payment of just compensation. 26 Am. Jur. 2d
Eminent Domain
§ 1
While delegation of the power of eminent domain is for the legislature, the determination of whether the condemnor’s intended use of the land is for “the public use or benefit” is a question of law for the courts.
Highway Commission v. Batts,
However, judicial determination of whether a condemnor’s intended use is an action for “the public use or benefit” under N.C.G.S. § 40A-3 is not standardless. On the contrary, courts in this and other states have employed essentially two approaches to this problem. The first approach — the рublic use test — asks whether the public has a right to a definite use of the condemned property. 26 Am. Jur. 2d Eminent Domain § 27 (1966). The second approach — the public benefit test — asks whether some benefit accrues to the public as a result of the desired condemnation. Id. We find that both approaches, when applied to the specific facts of this case, yield the identical conclusion. Plaintiffs condemnation of defendant’s рroperty, albeit to provide telephone service to but a single customer, is an action for “the public use or benefit.” Accordingly, the trial court’s decision granting defendant's motion, and denying plaintiffs motion, for summary judgment on the condemnation claim was improper.
We look first at the public use test. Under this first approach, the principal and dispositive dеtermination is whether the general public has a right to a definite use of the property sought to be condemned. 26 Am. Jur. 2d
Eminent Domain
§ 27 (1966). Significantly, this Court has emphasized that it is the public’s
right
to use, not the public’s actual use, which is important to this first approach.
Highway Commission v. Thornton,
“The character of the use, whether public or private, is determined by the extent of the right by the public to its use, and not by the extent to which that right is, or may be, exercised. If it is a public way in fact, it is not material that but few persons will enjoy it. * * *”
Id.
at 715,
A Texas court followed a similar approach in
Dyer v. Texas Electric Service Co.,
Under this first approach, the public use test, this plaintiffs intended use is clearly for “the public use or benefit” for purposes of N.C.G.S. § 40A-3, and acсordingly, plaintiff is entitled to the desired condemnation. While it is true that, by its action, plaintiff wishes to provide telephone service to a single customer, once the telephone cable is laid, every member of the public will have a common and identical right to use that telephone line. Such is the nature of telephonic communication. Any member of the public who wishes to do so may pick up his own telephone and dial Mr. Turlington at the appropriate number. Likewise, Mr. Turlington may access any other phone in the surrounding community merely by dialing the proper number. Moreover, once installed, access to telephone service would be available at the location to Mr. Turlington’s successors in title or рossession. Because it is the right to use the line and not the actual use of the line which is dispositive here,
Highway Commission v. Thornton,
However, use by the general public as a
universal
test of whether a desired condemnation constitutes an action for “the public use or benefit” has been recognized as inadequate. 26 Am. Jur. 2d
Eminent Domain
§ 29 (1966). Accordingly, we turn now to anоther approach, the public benefit test. Generally, under the public benefit test, a given condemnor’s desired use of the condemned property in question is for “the public use or benefit” if that use would contribute to the general welfare and prosperity of the public at large. 26 Am. Jur. 2d
Eminent Domain
§ 27 (1966). However, judicial decisions in this and other states reveal that not just any benefit tо the general public will suffice under this test. Rather, the taking must “ ‘furnish the public with some necessity or convenience which cannot readily be furnished without the aid of some governmental power, and which is required by the public as such.’ ”
Charlotte v. Heath,
The facts of the case at bar satisfy the public benefit test. In this day and age, as we near the end of the twentieth century, the escalating importance of telephones
A final method of analysis has been employed by courts in several states in cases where, as here, the condemnor’s desired use clearly includes both private and public traits. The general rule in such cases is that a taking can be for public use or benefit even when there is also a substantial private use so long as the private use in question is incidental to the paramount public use. See 26 Am. Jur. 2d Eminent Domain § 32 (1966).
This Court applied this general rule in
Highway Comm. v. School,
“[T]he exercise of eminent domain for a public purpose which is primary and paramount will not be defeated by the fact that inсidentally a private use or benefit will result which will not of itself warrant the exercise of a power. . . . The controlling question is whether the paramount reason for the taking of the land to which objection is made is the public interest, to which benefits to private interests are merely incidental, or whether, on the other hand, the private interests are paramount and controlling and the public interests merely incidental.”
Highway Comm. v. School,
Application of Justice Sharp’s reasoning to the case at bar yields yet again the conclusion that this plaintiffs desired use of the property in question — to provide telephone service to Mr. Turlington — was an action for “the public use or benefit” for purposes of N.C.G.S. § 40A-3. It is admitted that plaintiffs action will have as one of its effects the provision of telephone service to a single customer, Mr. Turlington. However, we find that, just as providing access to the Mashburn family was an incidental part of a large and very important highway project, the provision of telephone service to Mr. Turlington is a small part of a more important and more far-reaching effort — the effort to ensure that, in an era in which the tеlephone has truly become a necessity, whole communities, as well as members of individual communities, are interconnected by telephone systems.
In conclusion, we hold that the provision of telephone service, irrespective of the number of customers directly affected, constitutes an action for “the public use or benefit” for purposes of N.C.G.S. § 40A-3 and is therefore a use for which plaintiff may properly exercise its statutory power of eminent domain. Therefore, in the case at bar, the trial court erred in granting defendant’s motion for summary judgment and in denying plаintiffs motion for summary judgment on the grounds that plaintiffs desired use of the land in question is not for “the public use or benefit” as required by N.C.G.S. § 40A-3. Moreover, the Court of Appeals erred in affirming the trial court’s erroneous orders. Accordingly, we reverse and remand to the Court of Appeals with instructions to that court to remand to the Superior Court, Harnett County, for entry of summary judgment for plaintiff on the condemnation claim and for further proceedings consistent with this opinion.
Reversed and remanded.