In this recent decision, the North Carolina Court of Appeals held that when a condemnation is invalidated a court -- but the condemnor has, by quick-take, already built the project for which it (wrongly) took the property -- the owner is not limited to an inverse condemnation remedy (compensation), but may also bring a claim for plain-old trespass (ejectment).
On the same day the court issued that ruling, it produced a second opinion in related litigation stemming from the same facts: Town of Apex v. Rubin, No. COA20-305 (Mary 4, 2021).
As in that case, this one involved the sewer line the Town wrongly installed on Rubin's land. After the court invalidated the taking of the land, the Town still claimed the sewer line belonged to it, and in addition to raising that argument in the (now failed) eminent domain case, it brought a separate action (this second case) to declare the Town the owner of the easement, to declare that inverse condemnation is Rubin's only remedy, and to enjoin Rubin from removing the sewer line.
Rubin argued the ruling in the condemnation lawsuit was res judicata on the Town's second lawsuit.
The court of appeals mostly agreed. In the eminent domain case, the court concluded that the Town didn't gain title to Rubin's property. Same issue in the subsequent declaratory action. Same parties. Same subject matter. For all intents and purposes, the second lawsuit raised the same claims as in the first, and the Town merely changed its legal theory. Whether you call it "claim preclusion" or res judicata (ok, boomer), same thing: issue was resolved.
This is different from those cases where, after a failed condemnation the condemnor fundamentally changes its purpose for the taking. In those cases, res judicata may not bar the condemnor's second try. But "[n]o such change has occurred here, as the Town has simply changed its legal theory to take a sewer easement across Ms. Rubin’s land to serve Riley’s Pond." Slip op. at 13. The first case was direct condemnation, the second inverse. Same goal, same purpose, just a different theory. In the first, "we're going to take the property for a public use." The court disagreed. So the second case's theory was "we already possess the property, so we have taken the land for public use."
It wasn't a 100% win for Rubin, however. The court ok'd the Town's request for a declaration about whether the sewer can be removed, and sent that issue back down. The court concluded that issue had been left open in the other case (indeed, it held that the issue of removal needed to be resolved via a trespass action).
Town of Apex v. Rubin, No. COA20-305 (May 4, 2021)
