213 N.C. App. 579
N.C. Ct. App.2011Background
- Apex condemned defendants' land under Article 9 of Chapter 136 to construct a gravity sewer line for public use.
- Disagreement over purchase price led Apex to seek judicial determination of just compensation.
- Defendants moved to dismiss and counterclaimed for inverse condemnation, alleging a total taking would occur.
- Trial court granted Apex summary judgment on public-use purpose and dismissed the inverse condemnation counterclaim; later dismissed counterclaim on merits.
- Apex moved for determination of issues, focusing on whether the easement constituted a taking of the entire tract; the court held it was a partial taking.
- Defendants appealed three interlocutory orders; the timeline issue arises over whether the appeals were timely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the taking for public use? | Whitehurst et al. contended Apex's taking served public use. | Whitehurst et al. argued the taking was private use, or at least not a proper public use. | The order determining public use was interlocutory; appeal timeliness governs review. |
| Is the 10 February 2009 order an appealable interlocutory decision? | Apex sought to establish public-use purpose as a vital issue. | Defendants challenged the ruling as erroneous and sought review. | The order was interlocutory and appealable only if timely; here the appeal was untimely. |
| Is the 19 November 2009 order appealable and timely? | Defendants argued it disposed of area taken/inverse condemnation. | Defendants maintained it affected taking extent and required immediate appeal. | The order was interlocutory and the appeal was untimely; dismissed. |
| Should the 17 February 2010 order be reviewed on appeal? | — | — | Not reviewed because not argued in briefs. |
Key Cases Cited
- Progress Energy Carolinas, Inc. v. Strickland, 181 N.C.App. 610 (N.C. Ct. App. 2007) (vital preliminary issues; interlocutory appealability of taking-related orders)
- N.C. Dept. of Transportation v. Rowe, 351 N.C. 172 (1999) (unification of tracts; questions limited to title/area for appealability)
- N.C. State Highway Comm'n v. Nuckles, 271 N.C. 1 (1967) (vital preliminary issues affecting substantial rights in condemnation)
- Dep't of Transp. v. Mahaffey, 137 N.C.App. 511 (2000) (area taken as a key issue in appealability of condemnation)
- DeHart v. N.C. Dep't of Transp., 195 N.C.App. 417 (2009) (distinguishes cases where taking exists by agreement vs. contested in court)
- Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191 (2008) (failure to follow appellate rules results in dismissal)
- Penn v. Coastal Corp., 231 N.C. 481 (1950) (sovereign may condemn for public use; private benefit barred)
- Kelo v. City of New London, 545 U.S. 469 (2005) (public-use standard and private-benefit considerations in eminent domain)