
    MARION EPPLEY v. BRYSON CITY.
    (Filed 20 December, 1911.)
    Cities and Towns — Condemnation—Special Acts — Requisites—General Laws — Interpretation of Statutes.
    An incorporated town was authorized to erect, own, and operate an electric plant under chapter 217, Private Laws of 1911, conferring the power of condemnation “in the same manner as is now provided by law for the condemnation of lands for streets.” The charter of the town contains no method of procedure for condemning lands for streets: Held, that to lawfully authorize a municipal corporation to exercise the right of eminent domain the power must be expressly conferred or arise by necessary implication and the procedure necessary to give it effect must be provided; but a valid exercise of this power may be done by the municipality under the general law, ch. 86, sec. 1, Public Laws of 1911,' where all requisite powers are conferred.
    Appeal from order of Webb, J., refusing to grant an injunction, beard at chambers, 27 November, 1911. From SwaiN.
    Civil action pending in the Superior Court of Swain County instituted for the purpose of obtaining a perpetual injunction forbidding the maintaining of a dam on Deep Creek or river and asking its abatement as a nuisance.
    His Honor denied the motion, and plaintiff appealed.
    
      F. 0. Fisher for plaintiff.
    
    
      Bryson & Black for defendant.
    
   Beowh, J.

The defendant, a municipal corporation, is duly authorized by law to erect, own, and operate an electric light plant. Chapter 217, Private Laws 1911. An election was held and the voters approved the scheme. The bonds were issued and the work commenced and several thousand dollars expended, and especially in the purchase of land and a water-power on Deep Eiver. The dam has been erected, and it turns out now that after a survey of the property adjacent to the site of the defendant’s dam, about one and three-tenths acres of plaintiff’s rocky hillside mountain land is flooded. The -dam has been finished and the electric light plant well advanced towards completion.

It appears from tbe affidavits in tbe record tbat tbe only controversy between plaintiff and defendant is tbe value of tbe one and tbree-tentbs of an acre of overflowed land. Tbe plaintiff demands $400 damages, wbicb sum defendant avers is extortionate and defendant offers to submit tbe question to arbitration.

It is contended by plaintiff tbat tbe defendant bas no power of eminent domain and no right to condemn bis land for municipal purposes.

Chapter 217, Private Laws of 1911, sec. 1, reads as follows: “Tbat tbe board of commissioners of tbe town of Bryson City shall have power to lay out, build, and construct a system of sewerage and sewerage pipes for said town; to build and construct an electric light plant and repair tbe streets and sidewalks in said town, and to protect tbe same by adequate ordinances; and if in the construction, extension, or maintenance of said s.ewer system, electric light plant, or repair work, it shall become necessary to acquire land, right of way or easement, both within or without tbe corporate limits of said town, said board shall have tbe power to condemn tbe same in tbe same manner as is now provided by law for tbe condemnation of land for streets.”

It is contended tbat there is no method of procedure provided in tbe acts incorporating Bryson City for condemning land for streets, and tbat therefore there is no procedure provided for condemning plaintiff’s land.

This seems to be true, and in order tbat a municipal corporation shall lawfully exercise tbe right of eminent domain the power must be expressly conferred or arise by necessary implication, and tbe procedure necessary to give it effect must be provided. 15 Cyc., 568. But tbe defendant is not confined to tbe act in question as tbe only source of its power to appropriate plaintiff’s land and to have bis damage assessed by a legal tribunal.

Conceding tbat chapter 217, Private Laws 1911, is of no effect, so far as conferring, either in direct terms or by necessary implication, tbe rights of eminent domain -upon tbe defendant, still it is not without that right. Chapter 86, sec. 1,'Public Laws of 1911, amending section 2916, Revisal, grants to all towns, cities, and municipal corporations the right to build, construct, maintain and operate a system of electric plants, etc. That act, in connection with the sections of the Kevisal of 1905 which it amends, not only confers in express terms the right to condemn property for such public purposes, but provides all necessary legal machinery for appropriating the property and assessing the owner’s damage.

Unless the plaintiff and defendant can come to some agreement as to the value of his overflowed land and the damages incident thereto, if any, the defendant can proceed under that act to have them assessed.

The judgment of the Superior Court is

Affirmed.  