City of Goldsboro v. Atlantic Coast Line Railroad Co.
97 S.E.2d 486
N.C.
1957
Check Treatment
DeNNY, J.

The primary question posed for determination on this appeal is this: Does a municipal corporation, pursuant to the general powers of eminent domain conferred upon it by the State, both by General Statutes and by charter provisions, have the authority to condemn, for street purposes, land owned by a railroad which is not necessary or essential to the owner in the operation of its railroad business?

The appealing respondent in the hearing below excepted only to the refusal of the court to sustain its motion for judgment as of nonsuit at the close of petitioner’s evidence and at the close of all the evidence, and to the signing of the judgment.

When a jury trial is waived in the manner provided by statute, G.S. 1-184, and the facts, admitted or found by the court are in its opinion insufficient to support a verdict in favor of the plaintiff, a motion to dismiss or for judgment as of nonsuit may be allowed. St. George v. Hanson, 239 N.C. 269, 78 S.E. 2d 885. However, when a trial by jury is waived, G.S. 1-185 requires the court “to do three things in writing: (1) To find the facts on all issues of fact joined on the pleadings; (2) to declare the conclusions of law arising on the facts found; and (3) to enter judgment accordingly.” Woodard v. Mordecai, 234 N.C. 463, 67 S.E. 2d 639. Therefore, in order to preserve for review on appeal an adverse ruling on a motion for judgment as of nonsuit, it is necessary to except to the findings of fact in apt time on the ground that such *107 findings are not supported by the evidence. Scott v. Shackelford, 241 N.C. 738, 86 S.E. 2d 453; Buchanan v. Clark, 164 N.C. 56, 80 S.E. 424. Exceptions to such findings must be taken within the time allowed by G.S. 1-186. But when a judgment as of nonsuit is allowed in a hearing in which a trial by jury has been waived, “the effect of the written judgment is that when taken in the light most favorable to plaintiffs, all the evidence is insufficient to support a favorable finding for plaintiffs on any issue raised by the pleadings.” Such judgment will be deemed sufficient compliance with the statute. G.S. 1-185; Insurance Co. v. Carolina Beach, 216 N.C. 778, 7 S.E. 2d 13.

Where facts are found by the court, if supported by competent evidence, such findings are as conclusive as the verdict of a jury. St. George v. Hanson, supra; Trust Co. v. Finance Corp., 238 N.C. 478, 78 S.E. 2d 327; Burnsville v. Boone, 231 N.C. 577, 58 S.E. 2d 351; Poole v. Gentry, 229 N.C. 266, 49 S.E. 2d 464.

Moreover, where no exceptions have been taken to the admission of evidence or to the findings of fact, such findings are presumed to be supported by competent evidence and are binding upon appeal. James v. Pretlow, 242 N.C. 102, 86 S.E. 2d 759; Beaver v. Paint Co., 240 N.C. 328, 82 S.E. 2d 113; Donnell v. Cox, 240 N.C. 259, 81 S.E. 2d 664; Wyatt v. Sharp, 239 N.C. 655, 80 S.E. 2d 762; Cannon v. Blair, 229 N.C. 606, 50 S.E. 2d 732; Wilson v. Robinson, 224 N.C. 851, 32 S.E. 2d 601. Therefore, where a trial by jury has been waived, a motion for judgment as of nonsuit, where no exceptions have been taken to the admission of evidence, the findings of fact or the conclusions of law, will not present the question as to whether or not the findings of fact are supported by competent evidence. Burnsville v. Boone, supra.

It follows, therefore, in the instant case, since no exceptions were taken to the findings of fact or the conclusions of law, the exception to the refusal to grant the appellant’s motion for judgment as of nonsuit presents no question for review with respect to the findings of fact or the conclusions of law. The exception to the signing of the judgment, however, does present these questions: (1) Do the facts found support the judgment, and (2) does any error of law appear upon the inoo oí the record? Bailey v. Bailey, 243 N.C. 412, 90 S.E. 2d 696; Dellinger v. Bollinger, 242 N.C. 696, 89 S.E. 2d 592; Moore v. Crosswell, 240 N.C. 473, 82 S.E. 2d 208; Bond v. Bond, 235 N.C. 754, 71 S.E. 2d 53; Gibson v. Insurance Co., 232 N.C. 712, 62 S.E. 2d 320; Paper Co. v. Sanitary District, 232 N.C. 421, 61 S.E. 2d 378.

It is conceded by the petitioner that it has no special legislative authority to condemn the land herein sought. It is depending solely on the general power of eminent domain conferred upon it by the provisions of its charter as set forth in section 37 of Chapter 397 of the *108 Private Laws of 1901, section 1 of Chapter 101 of the Private Laws of 1915, subsection (d), section 1 of Chapter 163 of the Session Laws of 1951, and Chapter 160 of the General Statutes, together with the procedure authorized in Article 2 of Chapter 40 of the General Statutes. G.S. 160-205.

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. Yadkin County v. High Point, 217 N.C. 462, 8 S.E. 2d 470, and cited cases; Anno. — Eminent Domain— Property Not Used, 12 A.L.R. 1502; 18 Am. Jur., Eminent Domain, section 93, page 719; 29 C.J.S., Eminent Domain, section 74, page 861. 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. Yadkin County v. High Point, supra.

“Land not devoted to the public use, although owned by a public service corporation, may be taken under general legislative authority as freely as from a private individual; special legislative authority is not necessary.” 18 Am. Jur., Eminent Domain, section 94, page 720; Vermont Hydro-Electric Corp. v. Dunn, 95 Vt. 144, 112 A. 223, 12 A.L.R. 1495; Bd. of Education v. Campbells Creek R. Co., 138 W. Va. 473, 76 S.E. 2d 271; 29 C.J.S., Eminent Domain, section 74, page 864; McQuillin on Municipal Corporations (3rd Ed.), Volume 11, section 32.70, page 406.

In view of the finding by the court below to the effect “that 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,” and the other findings to which no exception has been taken, we hold that the petitioner has the authority under its general power to exercise the right of eminent domain to condemn the property it seeks for street purposes. Furthermore, we hold that the findings of fact are sufficient to support the conclusions of law and the judgment entered pursuant thereto. Therefore, the judgment of the court below is

Affirmed.