Adams Outdoor Advertising of Charlotte v. North Carolina Dept. of Transp.

• Decision Date: 21 September 1993
• Docket Number: No. 9210SC937,9210SC937
• Citation: 112 N.C.App. 120,434 S.E.2d 666
• Parties: ADAMS OUTDOOR ADVERTISING OF CHARLOTTE, A Minnesota Limited Partnership v. The NORTH CAROLINA DEPARTMENT OF TRANSPORTATION.
• Court: North Carolina Court of Appeals

Page 666

434 S.E.2d 666

112 N.C.App. 120

ADAMS OUTDOOR ADVERTISING OF CHARLOTTE, A Minnesota Limited Partnership v. The NORTH CAROLINA DEPARTMENT OF TRANSPORTATION.

No. 9210SC937.

Court of Appeals of North Carolina.

Sept. 21, 1993.

Wilson & Waller, P.A. by Betty S. Waller and Brian E. Upchurch, Raleigh, for plaintiff-appellant.

Atty. Gen. Lacy H. Thornburg by Asst. Attys. Gen. John F. Maddrey and Elizabeth N. Strickland, Raleigh, for the State.

McCRODDEN, Judge.

In this appeal, we must determine whether defendant's planting of trees and vegetation within its right-of-way adjacent to premises on which plaintiff owns and leases outdoor advertising signs (billboards) constitutes a taking of plaintiff's property such that plaintiff is entitled to compensation. At issue are eleven billboards which are located on private property adjacent to the Airport Connector Road and the Billy Graham Parkway in Mecklenburg County. Plaintiff's contention is that the trial court erred in dismissing its complaint because, according to plaintiff, the complaint stated a cause of action for inverse condemnation under the Fifth and Fourteenth Amendments to the United States Constitution, Article I, Section 19 of the North Carolina Constitution, and N.C.Gen.Stat. § 136-111 (1986).

Plaintiff's complaint alleged, inter alia, that subsequent to the erection of plaintiff's billboards, DOT began a program of planting trees and vegetation within the state owned right-of-way adjacent to plaintiff's leased premises pursuant to a state-initiated and funded highway beautification project. Plaintiff further claimed that since the vegetation has obscured or will eventually obscure its billboards, the billboards have been rendered economically useless; therefore, plaintiff is entitled to compensation on the basis of inverse condemnation of its property rights, pursuant to N.C.G.S. § 136-111.

A motion to dismiss pursuant to N.C.Gen.Stat. § 1A-1, Rule 12(b)(6) (1990), challenges the sufficiency of the complaint to state a claim upon which relief can be granted. Dismissal under Rule 12(b)(6) is proper if no law exists to support the claim, if sufficient facts to make out a good claim are absent, or if there are known facts which necessarily defeat the claim. Burgess v. Your House of Raleigh, 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990).

Although plaintiff asserted in its complaint that it should be awarded compensation pursuant to N.C.G.S. § 136-111 because DOT's actions constituted a "taking" of its property, the complaint failed to raise constitutional questions, and the record on appeal contains no indication that plaintiff argued the constitutional issues at the trial level. An appellate court should not pass upon a constitutional question unless it affirmatively appears that the party urging the claim raised it at trial and the trial court ruled upon it. Powe v. Odell, 312 N.C. 410, 416, 322 S.E.2d 762, 765 (1984). Since plaintiff failed to ask the trial court to rule upon these constitutional issues, we decline to rule on them now.

We will, however, address whether plaintiff's complaint states a cause of action pursuant to N.C.G.S. § 136-111. That statute provides that "[a]ny person whose land or compensable interest therein has been taken by an intentional or unintentional act or omission of the Department of Transportation ... [may] file a complaint in the superior court ..." to obtain compensation for the taking. An action in inverse condemnation must show (1) a taking (2) of private property (3) for a public use or purpose. Advertising Co. v. City of Charlotte, 50 N.C.App. 150, 153-54, 272 S.E.2d 920, 922 (1980). Although an actual occupation of the land, dispossession of the landowner, or physical touching of the land is not necessary, a taking of private property requires "a substantial interference with elemental rights growing out of the ownership of the property." Long v. City of Charlotte, 306 N.C. 187, 198-99, 293 S.E.2d 101, 109 (1982). A plaintiff must show an actual interference with or disturbance of property rights resulting in injuries which are not merely consequential or incidental. Id. at 199, 293 S.E.2d at 109.

While Black's Law Dictionary does not define the word consequential, it does define the term consequential damages, and from this definition, we may determine what the Supreme Court meant when it wrote of "injuries which are not merely consequential." Consequential damages means "[s]uch damage, loss or injury as does not flow directly and immediately from the act of the party, but only from some of the consequences or results of such act." Black's Law Dictionary 390 (6th ed. 1990). Black's Law Dictionary defines incidental as "[d]epending upon or appertaining to something else as primary; something necessary, appertaining to, or depending upon another which is termed the principal; something incidental to the main purpose." Black's Law Dictionary 762. Using these definitions, we conclude that plaintiff's complaint fails to state a claim of inverse condemnation.

Plaintiff's complaint states in pertinent part:

6. ... DOT has planted certain trees and other vegetation on the highway right-of-way adjacent to the airport connector and the Billy Graham Parkway.... The trees were planted for a public use and purpose.

9. Because of the size and placement of these trees at or near plaintiff's billboards, the view and legibility of the billboards has been substantially and severely limited and obscured, and many billboards have been rendered economically...