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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
FRANCES L. AUSTIN FAMILY LIMITED PARTNERSHIP and PIEDMONT LAND
CONSERVANCY, Plaintiffs, v. CITY OF HIGH POINT, Defendant
Filed: 6 June 2006
Cities and Towns; Easements--taking_-presence of unused sewer line on now abandoned
sewer easement--just compensation
The presence of defendant city's former buried sewer line on its abandoned and reverted
sewer easement did not constitute a further taking of plaintiff's property for which plaintiff is
entitled to just compensation, because: (1) defendant paid plaintiff just compensation for the
taking when in 1963 defendant paid plaintiff's predecessor-in-title for the right to place its sewer
line on plaintiff's property forever; (2) plaintiff's predecessor-in-title accepted payment of
$988.24 as compensation for any lost value to the property as a result of defendant's installation
and maintenance of the sewer line within its easement, and plaintiff is entitled to nothing more
than what its predecessors-in-title were paid when plaintiff purchased the property with the
easement and sewer line in place and the parties reached an agreement on additional damages for
the new sewer easement; and (3) defendant can abandon the easement without further obligation
to plaintiff to pay compensation or remove the buried pipe when the owner of the dominant
estate is not required to maintain or repair the easement for the benefit of the servient tenement.
Appeal by plaintiffs from order entered 6 October 2005 by
Judge W. Douglas Albright in Guilford County Superior Court. Heard
in the Court of Appeals 18 May 2006.
Wyatt Early Harris Wheeler LLP, by Scott F. Wyatt, for
Womble Carlyle Sandridge & Rice, PLLC, by Gusti W. Frankel and
Alison R. Bost, for defendant-appellee.
Andrew L. Romanet, Jr. and John M. Phelps, II, for amicus
curiae North Carolina League of Municipalities.
Frances L. Austin Family Limited Partnership (AFLP) and
Piedmont Land Conservancy (collectively, plaintiffs) appeal from
order entered concluding the presence of the City of High Point's
(defendant) former sewer line on its abandoned and reverted sewereasement does not constitute a further taking of AFLP's property.
AFLP is the owner of approximately 101 acres located in High
Point formerly used as a dairy farm. No sewer lines or pipes were
located on the property prior to 1963. In 1963, defendant, in
consideration for $988.24, obtained an easement from AFLP's
predecessor-in-title for the installation, operation, and
maintenance of a sewer line across AFLP's property.
On 17 March 2003, defendant initiated condemnation proceedings
for a new sewer pipeline to be placed on AFLP's property as part of
defendant's Upper Deep River Outfall Project. This condemnation
action was resolved by consent judgement entered 18 March 2005.
The consent judgment states that a portion of the existing easement
on the property reverts to the Grantor or its successor in
interest upon completion of construction of the new sanitary sewer
Pursuant to the 1963 easement, defendant has a twenty-foot
wide easement for the placement, operation, and maintenance of its
sewer line across AFLP's property. The total area of the 1963
sewer line easement is 67,521.67 square feet. A total area of
55,887.24 square feet of additional permanent sewer line easement
was taken in the 2003 Upper Deep River Outfall condemnation
proceeding. Portions of the new easement run parallel and overlap
with or include portions of the 1963 easement. The Upper Deep
River Outfall easement is thirty feet wide. In the consentjudgment, defendant also took for temporary construction an
additional ten feet on both sides of the thirty foot easement.
Defendant completed the new sewer line on 1 May 2004. Upon
completion of the new sewer line, defendant abandoned 26,503.83
square feet of portions of the 1963 sewer easement. Defendant left
approximately 1,520 linear feet of sewer pipe buried in the ground
within the abandoned easement. The diameter of the abandoned pipe
varies between eighteen and twenty-four inches. This pipe was
abandoned when the new sewer line was placed into service and is
not being used by defendant for a sewer line or any other purpose.
Plaintiffs filed suit in Guilford County Superior Court
alleging various claims relating to the underground sewer pipe
including taking by inverse condemnation. On 12 August 2005,
plaintiffs filed a Motion for Judicial Determination of Issue
Other than Compensation pursuant to N.C. Gen. Stat. § 40A-47
seeking a ruling from the trial court on whether the continued
presence of defendant's sewer pipe on its abandoned sewer easement
constitutes a taking of AFLP's property requiring defendant to pay
just compensation. The trial court reviewed depositions,
pleadings, exhibits, and other materials and concluded the
presence of defendant City of High Point's unused sewer line on its
now abandoned sewer easement . . . does not constitute a taking of
[AFLP's] property under Chapter 40A of the North Carolina General
Statutes. Plaintiffs appeal.
Plaintiffs argue the trial court erred by concluding
defendant's act of leaving its buried sewer pipe on its abandoned
sewer easement did not constitute a taking of AFLP's property for
which plaintiffs are entitled to just compensation.
III. Standard of Review
Conclusions of law drawn by the trial court from its findings
of fact are reviewable de novo on appeal. Humphries v. City of
Jacksonville, 300 N.C. 186, 187, 265 S.E.2d 189, 190 (1980).
Further, [i]t is well settled that de novo review is ordinarily
appropriate in cases where constitutional rights are implicated.
Piedmont Triad Reg'l Water Auth. v. Sumner Hills, Inc., 353 N.C.
343, 348, 543 S.E.2d 844, 848 (2001).
IV. Takings and Inverse Condemnation
The Fifth Amendment to the United States Constitution provides
in pertinent part, nor shall private property be taken for public
use without just compensation. U.S. Const. amend. V. Article I,
Section 19 of the North Carolina Constitution states in part, No
person shall be taken, imprisoned, or disseized of his freehold,
liberties, or privileges, or outlawed, or exiled, or in any manner
deprived of his life, liberty, or property, but by the law of the
land. N.C. Const. art. I, § 19.
While North Carolina does not have an express
constitutional provision against the taking
or damaging of private property for public
use without payment of just compensation, this
Court has allowed recovery for a taking on
constitutional as well as common law
principles. We recognize the fundamental
right to just compensation as so grounded in
natural law and justice that it is part of the
fundamental law of this State, and imposesupon a governmental agency taking private
property for public use a correlative duty to
make just compensation to the owner of the
property taken. This principle is considered
in North Carolina as an integral part of the
law of the land within the meaning of Article
I, Section 19 of our State Constitution. The
requirement that just compensation be paid for
land taken for a public use is likewise
guaranteed by the Fourteenth Amendment to the
Long v. Charlotte, 306 N.C. 187, 195-96, 293 S.E.2d 101, 107-08
In Charlotte v. Spratt, our Supreme Court discussed the
doctrine of inverse condemnation:
Where private property is taken for a public
purpose by a municipality or other agency
having the power of eminent domain under
circumstances such that no procedure provided
by statute affords an applicable or adequate
remedy, the owner, in the exercise of his
constitutional rights, may maintain an action
to obtain just compensation therefor.
263 N.C. 656, 663, 140 S.E.2d 341, 346 (1965). An inverse
condemnation remedy is provided in this State by statute. N.C.
Gen. Stat. 40A-51(a) (2005). Where property has been taken and no
complaint containing a declaration of taking has been filed, the
owner may initiate an action to seek compensation for the taking.
Id. In order to recover for inverse condemnation, a plaintiff
must show an actual interference with or disturbance of property
rights resulting in injuries which are not merely consequential or
incidental . . . . Long, 306 N.C. at 199, 293 S.E.2d at 109.
In Loretto v. Teleprompter Manhattan CATV Corp., the United
States Supreme Court dealt with a cable television company's
installation of a cable on the plaintiff's apartment building. 458U.S. 419, 73 L. Ed. 2d 868 (1982). New York law required a
landlord to permit a cable television company to install its cable
facilities on his property to provide cable television service to
the tenants. Id. at 421, 73 L. Ed. 2d at 873. The Supreme Court
answered the question of whether a minor but permanent physical
occupation of an owner's property authorized by government
constitutes a 'taking' of property for which just compensation is
due under the Fifth and Fourteenth Amendments of the Constitution.
The Supreme Court recognized the distinction between cases
involving a permanent physical occupation and cases involving
governmental action outside a person's property which results in
consequential damages. Id. The Court noted, A taking has always
been found only in the former situation. Id. at 428, 73 L. Ed. 2d
at 877. The Court affirmed the traditional rule that a permanent
physical occupation of property is a taking. Id. at 441, 73 L.
Ed. 2d at 886.
Plaintiffs argue AFLP is entitled to just compensation because
defendant's act in leaving the buried sewer pipe on its abandoned
sewer easement across AFLP's property constituted a taking. We
In 1963, AFLP's predecessor-in-interest granted an express
sewer easement across the property to defendant for consideration
of $988.24. The language of the express easement states the rightswere granted to defendant forever. However, our Supreme Court
When the purpose, reason, and necessity for an
easement cease, within the intent for which it
was granted, the easement is extinguished.
Hence, if an easement is not granted for all
purposes, but for a particular use only, the
right continues while the dominant tenement is
used for that purpose, and ceases when the
specified use ceases.
R.R. v. Way, 172 N.C. 774, 778, 90 S.E. 937, 939 (1916) (quotation
omitted); see also Int. Paper Co. v. Hufham, 81 N.C. App. 606, 609,
345 S.E.2d 231, 234 (If the deed conveyed only an easement, the
estate of the railroad company ceased and terminated when its
tracks were removed and the railroad was abandoned[.]), disc. rev.
denied, 318 N.C. 506, 349 S.E.2d 860 (1986).
The 1963 easement was created for an express purpose, being a
sewer line across the property of the parties . . . and for the
maintenance and upkeep of said sewer line. Under our Supreme
Court's precedent, defendant abandoned the easement when it ceased
to be used for a sewer line. R.R., 172 N.C. at 778, 90 S.E. at
939. The 18 March 2005 consent order states the abandoned easement
reverts to AFLP upon the completion of the new sewer line.
Whether or not defendant abandoned portions of the sewer
easement is not determinative to the outcome here. Defendant paid
AFLP just compensation for the taking. In 1963, defendant paid
AFLP's predecessor-in-title for the right to place its sewer line
on AFLP's property forever. AFLP's predecessor-in-title accepted
payment of $988.24 as compensation for any lost value to the
property as a result of defendant's installation and maintenance ofthe sewer line within its easement. Defendant has agreed, and the
parties stipulate that defendant shall be responsible for any
assessment and/or remediation of contamination emanating from
abandoned underground sewer lines on the Property to the extent
required by state or federal statutes or federal, state, or local
regulations. Defendant has paid AFLP for the burden to its
property of the buried sewer line. Plaintiffs are not entitled to
be paid twice for that right.
In Hildebrand v. Telegraph Co., the plaintiff was paid just
compensation for a right-of-way taken by the State for highway
purposes. The right-of-way was granted for all purposes for which
the State Highway & Public Works Commission is authorized by law to
subject said right of way. 221 N.C. 10, 13, 18 S.E.2d 827, 829
(1942). The State granted the defendant the right to place
telephone poles on the State's right-of-way. The plaintiff claimed
she was entitled to compensation for the additional burden on her
land. Id. at 14, 18 S.E.2d at 829-30. Our Supreme Court held,
The plaintiff has been compensated for this additional burden.
She may not again recover. Id. Here, the same reasoning applies
against AFLP. Plaintiffs were compensated by defendant for the
right to place sewer lines within its sewer easement. Where a
landowner has granted a right of way over his land, he must look to
his contract for compensation, as it cannot be awarded to him in
condemnation proceedings, provided the contract is valid . . . .
Feldman v. Gas Pipe Line Corp., 9 N.C. App. 162, 166, 175 S.E.2d
713, 715 (1970). Defendant can abandon the easement without further obligation
to AFLP to pay compensation or remove the buried pipe. Over
eighty-five years ago, our Supreme Court stated, the owner of the
dominant estate is not required to maintain or repair the easement
for the benefit of the servient tenement. He may, ordinarily,
abandon it altogether, without infraction of any rights of the
servient owner. Craft v. Lumber Co., 181 N.C. 29, 31, 106 S.E.
138, 139 (1921). Our Supreme Court later reaffirmed this rule and
[I]t is well settled at common law that the
owner of the dominant estate may abandon an
easement if he sees fit without any act of
consent or concurrence on the part of the
servient tenant. Although, as a matter of
fact, the abandonment may injure the land upon
or near which the easement was exercised, it
could not constitute an actionable injury at
common law, and certainly does not amount to a
taking within the meaning of the constitution.
Snow v. Highway Commission, 262 N.C. 169, 173, 136 S.E.2d 678, 681-
82 (1964). Defendant has fully compensated AFLP for its loss in
property value due to placing the sewer pipe on AFLP's property.
AFLP is entitled to nothing more than what its predecessors-in-title
were paid. AFLP purchased this property with the easement and sewer
line in place. The parties reached an agreement on additional
damages for the new sewer easement. This assignment of error is
Defendant fully compensated AFLP's predecessors-in-title for
the sewer easement. The trial court did not err by concluding that
defendant leaving its buried sewer pipe on its abandoned andreverted sewer easement did not constitute a taking of AFLP's
property. The trial court's order is affirmed.
Judges HUDSON and STEELMAN concur.
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