372 S.E.2d 742 | N.C. Ct. App. | 1988
Jessie V. McADOO; Joseph G.A. Dungee and wife, Mrs. Joseph G.A. Dungee; Chester Fewell and wife, Mrs. Chester Fewell; Clayton Wiley; Alvone A. Counts and wife, Carolyn H. Counts; Nathaniel Marshburn and wife, Pearl H. Marshburn; Plaintiffs,
v.
CITY OF GREENSBORO, Defendant.
James L. MOORE and wife, Jeannette J. Moore, Plaintiffs,
v.
CITY OF GREENSBORO, Defendant.
Court of Appeals of North Carolina.
*743 Alexander, Ralston, Pell & Speckhard by Donald K. Speckhard and Stanley E. Speckhard, Greensboro, for plaintiffs, appellants.
A. Terry Wood, Deputy City Atty., Greensboro, for defendant, appellee.
HEDRICK, Chief Judge.
Plaintiffs first contend the trial court erred by granting summary judgment to defendant because the inverse condemnation claim is not barred by the statute of limitations. Statutes of limitations are inflexible and unyielding. Blue Cross and Blue Shield v. Odell Associates, 61 N.C.App. 350, 301 S.E.2d 459, disc. rev. denied, 309 N.C. 319, 306 S.E.2d 791, (1983). The statute of limitations for inverse condemnation actions is defined in G.S. 40A-51(a), which in pertinent part states:
The action may be initiated within 24 months of the date of the taking of the affected property or the completion of the project involving the taking, whichever shall occur later.
The plaintiffs have the burden of showing their actions were filed within the statutory period. Lea Co. v. N.C. Board of Transportation, 308 N.C. 603, 304 S.E.2d 164 (1983). Since plaintiffs here admit they cannot prove when the actual taking occurred, they must show their action was instituted within 24 months of "the completion of the project involving the taking."
Plaintiffs contend the "project" encompasses the entire proposal by defendant to widen Pisgah Church Road. The widening, done in sections, was not yet complete at the time the action was instituted. For this reason, plaintiffs argue the limitations period had not yet begun to run. We disagree with plaintiffs' definition of "project."
Although defendant designated the entire widening as a "project," there is evidence that individual sections were also referred to as "projects." Because the road was widened in sections by different contractors, there were beginning and ending points to the widening of each section. These individual sections meet the definition of "projects" for purposes of G.S. 40A-51(a). Our courts have recognized there may be excusable delay in filing actions. See Midgett v. Highway Commission, 260 N.C. 241, 132 S.E.2d 599 (1963). The legislature, in enacting G.S. 40A-51(a), sought to account for such delay and provide plaintiffs adequate opportunity to discover *744 damage. Smith v. City of Charlotte, 79 N.C.App. 517, 339 S.E.2d 844 (1986). It would be unreasonable, however, for plaintiffs to be able to institute an action years after their property was affected simply because the label of "project" was attached to something which was completed in sections over a period of many years. Each section constituted an individual "project." See Railroad v. Olive, 142 N.C. 257, 55 S.E. 263 (1906). Under the facts of this case, plaintiffs had 24 months from the completion of the individual section which for purposes of G.S. 40A-51(a) was the "project involving the taking."
Plaintiffs further argue, however, that the individual section, and therefore the project, was not completed until 31 August 1984 when the maintenance period was completed. The institution of plaintiffs' actions would then be within the statute of limitations period. We agree.
The statutory period runs from the completion of the "project." This does not necessarily mean it runs from the completion of construction. The fact that defendant accepted the improvements is not relevant as it did so on condition that the project be completed with necessary maintenance. Defendant's authorization of final payment on 5 September 1984 and subsequent payment on 7 September 1984 show that defendant did not consider the project completed until the maintenance period was over. For these reasons, we hold completion of the project was not until 31 August 1984, and the trial court erred in granting summary judgment to defendant based on the statute of limitations. This action is therefore remanded to the Superior Court for further proceedings on the claim of inverse condemnation.
Plaintiffs further contend the trial court erred in granting defendant's motion for summary judgment because their trespass action is not barred by the statute of limitations. We disagree. Summary judgment for defendant was appropriate not because of the statute of limitations but because defendant as a city had the power of eminent domain, and such power insulates it from trespass actions regardless of whether compensation was paid or proper procedures were used. The exclusive remedy for failure to compensate for a "taking" is inverse condemnation under G.S. 40A-51. See Long v. City of Charlotte, 306 N.C. 187, 293 S.E.2d 101 (1982); Smith v. City of Charlotte, 79 N.C.App. 517, 339 S.E.2d 844 (1986). The fact that G.S. 40A-51(c) provides that "[n]othing in this action shall in any manner affect an owner's common-law right to bring an action in tort for damage to his property" is not relevant. An owner has no common-law right to bring a trespass action against a city. Plaintiffs' argument has no merit.
REVERSED AND REMANDED IN PART; AFFIRMED IN PART.
ARNOLD and COZORT, JJ., concur.