An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-561


Filed: 16 March 2004


v .                         Robeson County
                            No. 02 CVS 3098

    Appeal by defendants from judgment entered 23 October 2002 by Judge Gary L. Locklear in Robeson County Superior Court. Heard in the Court of Appeals 4 February 2004.

    J. Gates Harris for plaintiff-appellee.

    William L. Davis, III for defendant-appellants.

    STEELMAN, Judge.

    Defendants appeal the judgment of the trial court granting judgment on the pleadings in favor of plaintiff, pursuant to Rule 12(c) of the N.C. Rules of Civil Procedure. We affirm the trial court.
    The pleadings in this matter reveal that during 1992 and 1993,plaintiff administered a Small Cities Community Development Block Grant, which provided for approximately one million dollars worth of improvements to residential areas in and around the Town of Red Springs. These improvements included funds to provide municipal sewage service for defendants' property.
    In 1992-93, plaintiff installed a sewer lift station on defendants' land. Around the end of July 2002, defendants advised plaintiff, in writing, not to come on their land. They also advised plaintiff that “anyone seen trespassing [would] be prosecuted” and “[a]ccess to the Sewer Lift Station [had] been temporarily blocked off pending the outcome of this situation.” Defendants demanded $200,000.00 from the plaintiff for the “taking of their property.” Plaintiff contends it acquired the right to build and service the sewer lift station on defendants' land. However, plaintiff's attorney who handled the block grant is deceased, and plaintiff was unable to locate any documents concerning its acquisitions of the right to place the lift station upon defendants' property and an easement giving plaintiff access to the lift station site.
    On 2 August 2002, plaintiff filed a complaint against defendants seeking a declaratory judgment that it was entitled to ownership of the lift station site and the easement to that site. Plaintiff also requested a temporary restraining order, preliminaryinjunction, and permanent injunction preventing defendants from interfering with plaintiff's access to the lift station. On 23 August 2002, the trial court granted a preliminary injunction pending resolution of this matter. On 23 September 2002, defendants filed an answer and counterclaims alleging trespass to land and breach of contract. Defendants did not specifically assert a claim for inverse condemnation under N.C. Gen. Stat. § 40A-51(a) or allege they were under a disability which would have tolled the applicable statute of limitations. What defendants did assert, was that plaintiffs, “in 1992 or shortly thereafter, possessed certain lands belonging to defendants, located in the County of Robeson County [sic] and built a sewer lift station without the permission of the Defendants.” In its reply, plaintiff admitted that in 1992 and 1993 it possessed the land and built the sewer lift station. The trial court entered judgment on the pleadings, granting to plaintiff the relief sought in the complaint, and dismissing defendants' counterclaims.
    In their first assignment of error, defendants argue the trial court erred in granting plaintiff's motion for judgment on the pleadings. We disagree.
    “After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.” N.C. R. Civ. P. 12(c). The trial court granted judgment on thepleadings based solely upon the provisions of N.C. Gen. Stat. § 40A-51(a), the relevant portion of which states:
If property has been taken by an act or omission of a condemnor listed in G.S. 40A-3(b) or (c) and no complaint containing a declaration of taking has been filed the owner of the property, may initiate an action to seek compensation for the taking. 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.

N.C. Gen. Stat. § 40A-51(a) (2003). This provision is the “inverse condemnation” statute. Smith v. City of Charlotte, 79 N.C. App. 517, 521, 339 S.E.2d 844, 847 (1986). It allows a property owner to obtain compensation for a taking by a governmental entity even though no formal condemnation proceedings have been instituted. Id. This statute applies regardless of whether the taking was a result of “an act or omission” of the condemnor. Further, this statute is the sole and exclusive remedy for a property owner when a governmental entity has taken property and failed to compensate the property owner. McAdoo v. City of Greensboro, 91 N.C. App. 570, 573, 372 S.E.2d 742, 744 (1988). Thus, defendants' counterclaims for trespass and breach of contract were properly dismissed by the trial court. See id.
    The provisions of N.C. Gen. Stat. § 40A-51, requiring a property owner to institute an action seeking compensation for ataking within twenty-four months of the date of the taking has been held to be a statute of limitations. Id. at 572, 372 S.E.2d at 743. The pleadings in this case clearly show plaintiff “took” the property without consent in 1992 or 1993. Defendants did not institute an action seeking compensation until 23 September 2002, almost ten years later. Consequently, any claims of the defendants for compensation are barred by the statute of limitations in N.C. Gen. Stat. § 40A-51.
    The trial court properly granted judgment on the pleadings in favor of plaintiff. This assignment of error is without merit.
    In their second assignment of error, defendants contend the trial court erred in denying their motion to dismiss plaintiff's complaint pursuant to Rule 12(b)(6). For the reasons stated above, this assignment of error is also without merit.
    Judges MARTIN and GEER concur.
    Report per Rule 30(e).

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