In Rutherford Elec. Membership Corp. v. 130 of Chatham, LLC, No. 13 SP 95 (Sep. 2, 2014), the North Carolina Court of Appeals reversed the dismissal of an eminent domain complaint filed by a private company that sought to take property located in two counties.
In cases where a private company seeks to condemn private property, North Carolina law allows the filing of a special proceeding in the county in which the property is located. The trial court dismissed the complaint because the property to be taken was partially located in the county of venue, and partially in another county, and the court concluded it lacked subject matter jurisdiction. The court refused to allow the condemnor to amend its petition to cover only the land located in the proper county
The court of appeals reversed, although it conceded that the process was "in conflict," and urged the legislature to fix it:
While there is apparent conflict between statutes in Chapter 40A on whether a multi-county private condemnation action may be filed, we reverse the trial court because the trial court very clearly did have subject matter jurisdiction over at least the portions of the Box Creek Wilderness that were in Rutherford County and did not grant Rutherford Electric’s motion to amend its pleading. See N.C. Gen. Stat. §§ 40A-20, 40A-21, 40A-25, 40A-28, 40A-67 (2013). This Court leaves to the General Assembly whether or not Chapter 40A contemplates a multi-county private condemnation action via the procedure that Rutherford Electric attempted here and would urge the General Assembly to clarify the procedure to avoid future issues of this type.Slip op. at 7-8 (footnote omitted).
What the trial court should have done was not dismiss the entire claim, and allow the petitioner to amend its pleadings to cover only the property in the right county.
Rutherford Electric Membership Corp. v. 130 of Chatham, LLC, No. 13 SP 95 (N.C. App. Sep. 2, 2014)
