Cnty. of Moore v. Acres
| Docket Number | COA21-552 |
| Decision Date | 05 July 2022 |
| Citation | 284 N.C.App. 250,876 S.E.2d 88 |
| Parties | COUNTY OF MOORE, Plaintiff, v. Randy ACRES and Soek Yie Phan, Defendants. |
| Court | North Carolina Court of Appeals |
Womble Bond Dickinson (US) LLP, Winston-Salem, by H. Stephen Robinson and Mary Craven Adams, and Moore County, by Misty Randall Leland, for Plaintiff-Appellant.
McGuireWoods LLP, by Robert Muckenfuss and R. Locke Beatty, Charlotte, for Defendants-Appellees.
¶ 1 Plaintiff County of Moore ("the County") appeals the trial court's summary judgment order dismissing its complaint seeking declaratory and injunctive relief requiring Defendants Randy Acres and Soek Yie Phan ("Defendants") to remove an alleged "spite fence" erected along their rear property line. The complaint alleges Defendants built the new fence and planted invasive holly trees that restrict access to the public underground water and sewer infrastructure operated by the County.
¶ 2 The trial court entered summary judgment in favor of Defendants and dismissed the County's complaint on the ground that the County had not shown it holds title to the water and sewer pipes or a utility easement. The County appeals. For the reasons explained below, we reverse and remand for further proceedings.
¶ 3 The record tends to show the following:
¶ 4 The Village of Pinehurst ("Pinehurst") was built at the turn of the 20th century. The founding developers installed water and sewer lines to provide services to the residents. The County took ownership of the water and sewer system in 1999 and has provided service to the residents of Pinehurst through that same system ever since.1
¶ 5 Among the mains within the County's infrastructure are a cast iron water line and a clay sewer line that run along the rear of Defendants’ property located on Palmetto Road in Pinehurst (the "Property"). The water main provides fire-fighting service to the Property and surrounding parcels and further functions to prevent stagnation and offers a redundancy in the event another water line is out of service. The sewer line services only the Property.
¶ 6 The utility mains were installed on the Property prior to when Defendants’ home was built; however, the record contains conflicting evidence as to exactly when the lines were installed and by whom. A 1956 map found in the County's archives shows the sewer main dated to 1900. A fire plug installed on the water main is imprinted with the year 1914. Neither of the lines, nor any recorded easement for either of them, appears in the chain of title to the Property.
¶ 7 When Defendants purchased the Property in 2004, an existing fence and foliage were located several feet inside their property line. In 2012, the County contacted Defendants to schedule maintenance on the sewer and water lines, which would require removing and replacing a portion of that fence. Defendants expressly permitted the contractor to do so, and the County serviced the lines.2
¶ 8 In 2018, Defendants’ neighboring property owners constructed an addition to their home that resulted in a dispute among those neighbors and Defendants. On 28 October 2018, Defendants applied to Pinehurst for a permit to construct a new fence extending closer to their property line. Pinehurst responded by advising Defendants that they "must contact Moore County Public Works ... to determine water line placement and recommended location of fencing." Defendants never contacted Moore County about the location of the fence. They called a local 811 service for public utility markings. Defendants then dug installation holes for the new fence, exposing but not rupturing the underground mains.
¶ 9 On 18 March 2019, after learning of Defendants’ installation and exposure of the utility lines, Pinehurst notified the Engineering Division of Moore County Public Works. Moore County staff visited the site the same day and attempted to order them to stop the work. The next day, the County sent Defendants an e-mail stating the fence was required to be installed outside the Moore County easement.
¶ 10 Defendants allegedly did not respond to the County's e-mail and constructed the new fence the following month, running above the utility mains operated by the County and blocking their neighbors’ access to their new garage. The County alleges the new fence blocks public access to a gravel alleyway that neighbors and community members have used for decades. The County also alleges Defendants’ new fence closes in "the water main, sewer main and manhole, thus preventing adequate access to the utilities ...."
¶ 11 The following map, included for illustrative purposes only,3 shows the approximate location of Defendants’ new fence:
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¶ 12 On 24 May 2019, the County sent Defendants two letters demanding the fence be removed within 14 days. Defendants did not remove the fence and, several weeks later, allegedly planted holly trees "all along the inside of the fence directly above the water main ...."
¶ 13 On 25 June 2019, the County initiated this action by filing a complaint in Moore County Superior Court. On 2 August 2021, the County filed an Amended Complaint seeking preliminary and permanent injunctive relief. The County further sought a declaration that it "enjoys the rights of ownership, pursuant to its power of eminent domain, of the manhole, water and sewer mains and the easements, measuring 10 feet on each side of the water main and sewer main ...."
¶ 14 The matter was removed to and subsequently remanded from the United States District Court for the Middle District of North Carolina. On 5 April 2021, Defendants moved for summary judgment. The County filed a cross-motion for partial summary judgment on the issue of the County's ownership of the lines and easement, leaving the size and scope of any such easement for determination at trial.
¶ 15 The parties’ motions for summary judgment came on for hearing on 29 April 2021, with the trial court noting that "there's no evidence even in the record that Moore County even owns the pipe." Following the hearing, the trial court entered summary judgment in favor of Defendants and dismissed the County's claims for injunctive and declaratory relief. The County appeals.
¶ 16 The record evidence reveals Defendant Randy Acres purchased the Property in late 2004 with the abutting gravel throughway and water and sewer mains already constructed and in operation.4 The trial court nevertheless agreed with Defendants that the County failed to show it took title to a utility easement and therefore could not restrict Defendants’ use of the Property. We conclude the trial court erred and reverse the summary judgment order.
¶ 17 Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c) (2021). "The party who moves for summary judgment bears the burden of establishing the lack of any triable issue of fact." Pembee Mfg. Corp. v. Cape Fear Constr. Co. , 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). In reviewing the evidence anew and in the light most favorable to the nonmoving party, the court must ultimately determine "whether there is any genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law." Griggs v. Shamrock Bldg. Servs., Inc. , 179 N.C. App. 543, 546, 634 S.E.2d 635, 637 (2006) (citation omitted). "The movant may meet this burden by proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim ...." Collingwood v. G.E. Real Estate Equities , 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989).
¶ 18 A trial court's order on summary judgment is reviewed de novo. Wilkerson v. Duke Univ. , 229 N.C. App. 670, 673, 748 S.E.2d 154, 157 (2013). "Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal." State v. Williams , 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008).
¶ 19 "Private property can be taken by the exercise of the power of eminent domain only where the taking is for a public use." Highway Comm. v. Equipment Co. , 281 N.C. 459, 468, 189 S.E.2d 272, 278 (1972) (citation omitted). North Carolina General Statutes Chapter 40A, Article I, Section 3 authorizes counties to exercise the power of eminent domain for the construction of public water supplies and public sewage systems. N.C. Gen. Stat. § 40A-3(b)(4) (2021). "When land is appropriated under this power of eminent domain ..., the [county] acquires an easement ... in the land so taken, and the fee to the property remains in the landowner, who may subject the land to any use which is not inconsistent with its use for the purpose for which it is taken."
Proctor v. Highway Commission , 230 N.C. 687, 691, 55 S.E.2d 479, 481 (1949).
¶ 20 A "taking" for purposes of the power of eminent domain occurs upon "entering upon private property for more than a momentary period, and, under warrant or color of legal authority, devoting it to a public use, or otherwise informally appropriating or injuriously affecting it in such a way as substantially to ... deprive [the owner] of all beneficial enjoyment thereof." Penn v. Coastal Corp., 231 N.C. 481, 484, 57 S.E.2d 817, 819 (1950) (citation omitted); see also City of Charlotte v. Combs , 216 N.C. App. 258, 261, 719 S.E.2d 59, 62 (2011).
Moreover, what is a taking of property within the due process clause of the Federal and State constitutions, ... is not always clear, but so far as general rules are permissible of declaration on the subject, it may be said that there is a taking when the act involves an actual interference with, or disturbance of...
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