The historic Supreme Court of North Carolina.
Here's the latest in a somewhat strange case we've been following about what happens after a court determines that a taking lacks a public use -- but the condemnor goes ahead and just seizes the property anyway.
The Town of Apex, North Carolina, sought to take an easement across Rubin's land. She objected, asserting the taking was not for a public use or purpose, but rather to benefit a private party: a developer who needed the easement to connect two of his non-contiguous parcels to the municipal sewer system, a precondition of the Town's development approvals for his proposed residential subdivisions.
While Rubin's public use objection was pending, the Town went ahead at installed the sewer line, purportedly under its quick-take power. That was not the best of moves, however, because the courts eventually agreed with Rubin that the taking violated the public use requirement. (We say "public use requirement" because Rubin's objections were both under the U.S. Constitution's Public Use Clause, as well as the North Carolina Constitution, which, as you may recall, does not contain an express takings clause. But North Carolina has long recognized that the public use and just compensation limitations on eminent domain power govern, under the N.C. Constitution's "Law of the Land" Clause.) More details in our earlier post on the case.
So here's the situation: the Town is now illegally occupying Rubin's property. Now what? The Town argued it was fait accompli -- all you can do is sue us for just compensation in an inverse action. Or maybe you can sue us in a common law tort trespass action to get us off your property by way of separately seeking a writ of ejectment, or an injunction. (Rubin hadn't done either of these.) She argued that she didn't need to do that, and the court in the eminent domain action had all it needed to order the Town to get off her land.
In Town of Apex v. Rubin, No. COA20-403 (May 4, 2021), the North Carolina Court of Appeals was horrified by the Town's actions. The three-judge panel held, "[t]his is not the law, nor can it be consistent with our Federal and State Constitutions[,]" "[t]he Town’s argument is not supported by the facts or the law[,]" and "the public purpose requirement serves as a shield to protect the landowner from government intrusion rather than as a sword to cut away private property rights," and accepting the Town's arguments would, "open the door to numerous constitutional harms[.]"
All good, right? See ya later, Town of Apex?
Not so fast. The court also concluded that although the Town grossly exceeded its powers and violated Rubin's rights, Rubin had not sought the proper remedy, and in order to get the Town off her property, she needs to sue it in trespass (and win):
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.
Neither party was happy with that outcome. The Town sought discretionary review in the N.C. Supreme Court, while Rubin conditionally cross-petitioned. The North Carolina Supreme Court granted both petitions.
This morning, the North Carolina Supreme Court allowed our motion to file this amicus brief in support of Rubin. Because this is (now) a case we're participating in, we won't go into much detail. But here's how the brief summarizes the case:
In a free society, we should not expect that when a court tells the government that a taking is illegal and unconstitutional, that it would just go ahead and seize the property anyway. Yet that is exactly what the Town of Apex did. Having been told it was acting unconstitutionally, it did not do the right thing and stand down. Instead, its only response to the court’s lawful order that the taking lacked a public use was to occupy Ms. Rubin’s land, and then claim it was too late for Ms. Rubin or the court to do anything about it. This isn’t the rule of law, but predatory government conduct that a court has the power to address even in the absence of the property owner’s trespass claim.This case is an opportunity to reaffirm a foundational principle of limited government: the sovereign power of eminent domain does not extend to taking private property for private use, and the Town’s attempt to do so was utterly void—not merely voidable. Neither North Carolina’s Law of the Land Clause, nor the U.S. Constitution’s Public Use Clause, is so toothless that it permits the Town to purposely violate Ms. Rubin’s property rights, with the court powerless to do anything unless and until she pursues and wins a common law trespass claim.
Underlying the Court of Appeals decision is the incorrect assumption that the Town’s invasion and occupation of Ms. Rubin’s land was a run-of-the-mill tort, redressable solely by a separate trespass action. But exercising the sovereign power of eminent domain to seize property—especially after the courts have held that the taking is not appropriate—is not merely a civil wrong, but the government acting well outside its constitutionally delegated powers. This principle goes back to the foundation of this nation. See, e.g., Calder v. Bull, 3 U.S. (3 Dall.) 386, 388–89 (1798) (“It is against all reason and justice for a people to entrust a legislature with such powers [to take property for another’s private use], and therefore it cannot be presumed that it has done it.”). Put another way, in addition to recognizing a property owner’s individual civil right to keep and use their property unless a taking is for public use, the public use requirement acknowledges an inherent limitation on sovereign power: takings for private benefit are simply beyond the power of government. In other words, the public use requirement is self-executing and does not merely give rise to a cause of action in trespass. As such, the courts of North Carolina, like any other, inherently have the power to enforce it.
Thus, once the court in the eminent domain action determined that the Town’s attempt to take Ms. Rubin’s property for private benefit was an illegitimate exercise of governmental power, she need have done nothing more. As a party which acted unconstitutionally and in derogation of fundamental property rights, the Town—and not the innocent property owner—bore the risk when the Town installed the sewer line. The Town thus also bears the affirmative burden to remove it when its gamble that it could install the sewer line, contrary to the court’s order, went bad.
More on the case from Mitch Kokai (John Locke Foundation): "Apex sewer pipe fight sends clear message about property rights."
We'll bring you more as things progress.
