A lot of times, when the government has invaded and physically occupies private property, the owner wants a court to find a taking. That's why a typical remedy in these situations is an inverse condemnation action alleging the occupation is a taking requiring the government to provide compensation. And the remedy the owner usually seeks is compensation or an order compelling the government to formally take the property.
But in what circumstances does that remedy not work, such as when an owner doesn't want compensation, but instead wants the government to go away?
That's the question the North Carolina Court of Appeals considered in Town of Apex v. Rubin, No. COA20-403 (May 4, 2021), where a court struck down down a taking by eminent domain for lack of public use, but by then the condemnor had already occupied the property under its quick take power. What now?
Dig these facts. Developer wanted to buy property next to Rubin's. But there was a problem: the property wasn't serviced by a sewer line. Developer's efforts to obtain an easement from Rubin got nowhere. So the developer asked the Town, "how about condemning a sewer easement for me ... I'll pay the compensation and all costs." Unable to resist such a deal, the Town agreed and did so by quick take. And like that, problem solved!, and the developer, now having the promise of a sewer line, could and did buy the property.
For every solution, there's a problem. Rubin objected to the taking. And guess what? ... the court agreed. It invalidated the condemnation.
But here's the rub: the Town had already installed the sewer.
The trial court rejected Rubin's request for a mandatory injunction ordering the Town to get its stuff off of her land because she had not asked for such relief in her pleadings. The court also concluded that the remedy for the Town's trespassing with a sewer line on Rubin's land was for her to sue for inverse for compensation for compensation. It voided the public use judgment.
But Rubin still didn't want compensation (which is why she fought the eminent domain action in the first place, we suppose), she wanted the sewer off her land.
Up to the Court of Appeals. That court concluded this wasn't an inverse condemnation. The N.C. Supreme Court has defined inverse condemnation as an action by a landowner against a governmental defendant to recover compensation, "even though no formal exercise of the [eminent domain] power has been attempted by the taking agency." Slip op. at 15 (quoting Wilkie v. City of Boiling Spring Lakes, 809 S.E.2d 853, 861 (N.C. 2018)).
The court of appeals focused on that last bit, concluding that because the Town actually did attempt a taking previously, this case didn't fall within that definition. The court rejected the Town's argument that the trial court's conclusion the taking (by eminent domain) was not for public use means that the attempted taking was void ab initio and thus the installation of the sewer lines were based on a "separate intrusion," not pursuant to an exercise of eminent domain (at least not a valid exercise of eminent domain). Slip op. at 16. The court concluded that the Town installing the sewer lines wasn't an inverse condemnation by which the Town took title to an easement.
The opinion also sets out how a contrary ruling "would also open the door to numerous constitutional harms." See slip op. at 21-22. Holding otherwise, the court suggested, would allow the government to institute private condemnations, build what it wanted to build, then voluntarily dismiss and tell the owner "sue me in inverse for your compensation." No deal. "We do not believe the law of inverse condemnation can be used to facilitate such an abuse of the government’s eminent domain power." Slip op. at 22.
The court also rejected the Town's argument that the construction mooted the judgment.
The court next addressed the real heart of the problem. At this point, the facts and the opinion read more like a law school exam hypo (what are the rights and liabilities of each of the parties?). Did the trial court's judgment invalidating the taking by eminent domain mean that Rubin could eject the Town's sewer, even though she did not expressly ask for a mandatory injunction in her pleadings?
First, the court of appeals agreed that Rubin did not ask for mandatory injunctive relief during the eminent domain action. See slip op. at 25 ("Ms. Rubin failed to seek a mandatory injunction while the direct condemnation action was pending.") [Hint, N.C. practitioners: maybe from now on, you should ask for that remedy if you plan on challenging the power to take.]
Second, the court rejected Rubin's other arguments why the court should eject the Town from her land, even though she didn't plead it. See slip op. at 25-30.
So now what? The court offered this: she needs to sue the Town in trespass:
The question remains whether the trial court correctly concluded that the Judgment precluded mandatory injunctive relief. We hold that the trial court erred in this respect. While Ms. Rubin is not entitled to post-judgment mandatory injunctive relief in the direct condemnation action, she may bring a trespass claim against the Town in pursuit of the mandatory injunctive relief she seeks. We therefore vacate the trial court’s orders insofar as they preclude the availability of mandatory injunctive relief, but we ultimately affirm the trial court’s denial of Ms. Rubin’s motion to enforce the Judgment.
Slip op. at 31.
And we'd be remiss if we ended this post before referring to the way the court opened the opinion.
Our Federal and State Constitutions protect us, our homes, and our lands from unrestrained government intrusion. Police cannot roam about our private property unfettered. U.S. Const. amend. IV; N.C. Const. art. I § 20. The military cannot forcibly occupy our homes during peacetime. U.S. Const. amend. III; N.C. Const. art. I § 31. And, most pertinent to this appeal, the State cannot take our property without both a public purpose and payment of just compensation. U.S. Const. amend. V; N.C. Const. art. I § 19.
Slip op. at 1-2. When you are a property owner and the opinion in your case starts off that way, you know you are in for some good stuff. Huzzah.
Note: the video at the top of this post is a summary of the case from one of the amici counsel.
Town of Apex v. Rubin, No. COA20-403 (N.C. App. May 4, 2021)
