In some states, Hawaii included, the question of whether a taking is “for public use” is entitled to full resolution before addressing the question of just compensation. See, e.g., Haw. Rev. Stat. § 101-34 (public use challenges are entitled to immediate trial, and as-of-right interlocutory appeal). This makes sense since questions of value come into play only after final determination of whether the condemnor can take the property at all. [Sidebar: in Hawaii, eminent domain cases have calendar preference over all other civil actions, and the courts have a statutory obligation to hear and decide condemnation actions “quickly.” Haw. Rev. Stat. § 101-9.]
But this is not a matter of statute in some jurisdictions, including North Carolina. Meaning that its up to the courts to determine whether the interlocutory issue of whether a trial court’s public use determination is immediately appealable. In Town of Apex v. Whitehurst, No. COA10-697 (July 19, 2011), the N.C. Court of Appeals reached the right conclusion when it held that “[a]s we have concluded that the determination of whether a taking is for a public purpose is an inquiry of vital importance in condemnation cases, such questions affect a substantial right and are immediately appealable.” Slip op. at 9-10.
The court also held that issues surrounding the scope of the taking are also subject to immediate appellate review (in this case, the property owner filed an inverse condemnation claim asserting the condemnor’s taking of an easement for power lines destroyed the “Sylvan refuge” of her forested land). It would not make sense for the jury to consider valuation until they knew how much property was in fact taken. Slip op. at 12.
The court dismissed the appeal, however, since the property owner missed the 30-day windows to appeal from the trial court’s orders.