370 N.C. 540
N.C.2018Background
- Plaintiffs Edward and Debra Wilkie own lakeside property on Spring Lake, a lake owned and maintained by the City of Boiling Spring Lakes. Two outlet drain pipes control lake level.
- After petitions from lake residents, the City installed "elbows" on the outlet pipes in July 2013 to raise the lake level; plaintiffs allege this flooded and submerged ~1,192 sq ft of their land while the elbows remained in place.
- Plaintiffs filed suit seeking compensation under N.C.G.S. § 40A-51 (statutory inverse condemnation) and constitutional remedies, alleging a taking because no condemnation complaint with a declaration of taking was filed.
- The trial court held the City’s placement of the elbows constituted a temporary taking under § 40A-51 and reserved damages for later determination.
- The Court of Appeals reversed, holding § 40A-51 requires that the property be taken for a public use or benefit and remanded for consideration of state constitutional claims.
- The North Carolina Supreme Court granted discretionary review on whether § 40A-51 contains a "public use or benefit" element and whether the Court of Appeals misinterpreted § 40A-51.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 40A-51 requires the taking to be for a public use or benefit | § 40A-51's text does not add a "public use" element; the reference to § 40A-3(b)/(c) limits defendant types, not purpose | The statute ties to § 40A-3(b)/(c) and eminent-domain powers, so inverse condemnation under § 40A-51 applies only to takings for public purposes | Held: § 40A-51 does not require the taking to have been for a public use or benefit; the reference to § 40A-3(b)/(c) delineates eligible condemnor entities only |
| Proper textual construction of "listed in § 40A-3(b) or (c)" in § 40A-51 | That phrase modifies "condemnor," per last-antecedent canon; § 40A-51 is remedial and should be construed broadly | Phrase modifies "act or omission" or otherwise imports public-purpose limitation | Held: Applying plain meaning and the last-antecedent canon, the phrase modifies "condemnor"; broad remedial construction supports claim availability regardless of purpose |
| Whether "taken/taking" in § 40A-51 is necessarily limited to eminent-domain (public) takings | "Taken" can mean actual deprivation/interference; statute uses "act or omission," expanding beyond formal eminent domain | "Taken/taking" are terms of art tied to eminent domain and public purpose | Held: Court rejects defendant’s argument that the statutory terms automatically equate to only eminent-domain public takings; ordinary meaning and statute control |
| Whether plaintiffs’ remedy is limited by availability of tort/common-law relief | § 40A-51 provides a statutory procedure and should be available; denying it would unfairly limit remedies | Common-law tort remains available; statute should not be read to expand beyond public-purpose takings | Held: § 40A-51 remains an available statutory remedy even when the taking is not for a public purpose; common-law remedies are preserved but do not preclude § 40A-51 relief |
Key Cases Cited
- Kirby v. N.C. Dep't of Transp., 368 N.C. 847, 786 S.E.2d 919 (2016) (discusses scope of "taking" and inverse-condemnation principles)
- Long v. City of Charlotte, 306 N.C. 187, 293 S.E.2d 101 (1982) (definition of a taking as substantial interference with property rights)
- Corum v. Univ. of N.C., 330 N.C. 761, 413 S.E.2d 276 (1992) (availability of constitutional claims when no adequate statutory remedy exists)
- Arkansas Game & Fish Comm'n v. United States, 568 U.S. 23 (2012) (federal takings jurisprudence on temporary physical occupations and takings principles)
- Beroth Oil Co. v. N.C. Dep't of Transp., 367 N.C. 333, 757 S.E.2d 466 (2014) (discussion of just compensation and "law of the land" takings principles)