Long v. City of Charlotte

• Decision Date: 13 July 1982
• Docket Number: No. 132A81,132A81
• Citation: 306 N.C. 187,293 S.E.2d 101
• Parties: Charles G. LONG, Jr. and wife, Mary P. Long v. CITY OF CHARLOTTE.
• Court: North Carolina Supreme Court

Page 101

293 S.E.2d 101

306 N.C. 187

Charles G. LONG, Jr. and wife, Mary P. Long v. CITY OF CHARLOTTE.

No. 132A81.

Supreme Court of North Carolina.

July 13, 1982.

Weinstein, Sturges, Odom, Groves, Bigger, Jonas & Campbell, P. A. by T. LaFontine Odom and L. Holmes Eleazer, Jr., Charlotte, for plaintiffs-appellants.

Caudle, Underwood & Kinsey, P. A. by William E. Underwood, Jr., and C. Ralph Kinsey, Jr., Charlotte, for defendant-appellee.

MEYER, Justice.

The major issue brought forward for review is the permissible scope of relief sought by the petitioners for alleged injuries and damages to their persons and property. More specifically, the issue is whether plaintiffs in addition to recovering for the diminution in the value of their real property upon the theory of inverse condemnation, may recover (1) for personal injuries and property damages resulting from direct overflights upon allegations sounding in trespass and nuisance and (2) punitive damages. For the reasons stated herein, we affirm Judge Snepp's dismissal of the plaintiffs' trespass and nuisance counts and the striking of plaintiffs' allegations for punitive damages and hold that plaintiffs' recovery is limited to the diminution in the value of their real property. We further affirm Judge Snepp's action in striking the allegations of plaintiffs' stress, anxiety, fear, annoyance and loss of sleep as independent elements of damage in the trespass and nuisance counts but hold that evidence of such conditions is admissible to prove the cause and extent of the diminution in value of plaintiffs' real property in the inverse condemnation count. ²

The matter is before this Court, in effect, on the complaint, pre-answer motions to dismiss, and the order of the court only. The record before us does not contain the arguments of counsel or other matters which transpired at the hearing of the motions. In short, there is little record material before us concerning the facts of the claim. The briefs of both parties contain recitals of facts no doubt well-known to the attorneys who prepared them but which do not appear in and are not supported by the brief record before us. The Supreme Court will consider only what appears in the record which was before the Superior Court and will not consider additional "facts" appearing only in the briefs of the parties before it. See Penland v. Coal Co., 246 N.C. 26, 34, 97 S.E.2d 432, 438 (1957), wherein this Court, in addressing a similar situation, said:

The Supreme Court can judicially know only what appears in the record which was before the Superior Court. (Citations omitted.) Accordingly, matters which were not in the record before the Superior Court, but which are sent up with the transcript to the Supreme Court, are no more a part of the record in the Supreme Court than they were in the Superior Court, and may not be made so by certificate of the court below.

We will first examine such facts as may be gleaned from the complaint which, pursuant to Rule 12(b) standards, must be deemed true for the purpose of the trial judge's ruling on the motions and our review of that ruling.

This action against the City of Charlotte (hereinafter "City") was instituted by Mr. and Mrs. C. G. Long on 18 June 1980. In the original complaint there are three "counts" denominated as follows: "Count I (Inverse Condemnation)," "Count II (Trespass)," and "Count III (Nuisance)," as well as a prayer for compensatory and punitive damages.

The following is a brief summary of the allegations of Count I (Inverse Condemnation) of the complaint. The City of Charlotte owns and operates Douglas Municipal Airport. In 1969 the City approved an expansion of the airport by adding a new 10,000-foot, North/South runway known as "Runway 18R/36L" west of the then existing North/South runway. Land acquisition began in 1969, construction began in 1973 and the new runway was opened for traffic on 19 June 1979. Plaintiffs' property is located approximately one mile north of the northerly end of the new runway and is directly in line with and under the take-off and landing paths of aircraft using the new North/South runway 18R/36L. Since the opening of the new runway substantial numbers of commercial, freight and general aviation aircraft, both civilian and military, jet and propeller-driven, using it have passed directly over, adjacent to and near plaintiffs' property at low altitudes ranging from 100 to 500 feet. Such flights have occurred at all hours of every day and night.

Plaintiffs allege that when the aircraft pass over or near their property, in taking off or landing, they create intense noise and vibration which shake plaintiffs' home so badly that it vibrates the house and personal property and makes ordinary conversation, radio listening, television viewing and any reasonable use of plaintiffs' home impossible. Fumes and other pollutants are emitted from the low-flying aircraft as they pass over or near plaintiffs' property polluting plaintiffs' property, disrupting outdoor activities, and leaving a coat of pollutants on plaintiffs' home, yard, motor vehicles, and other objects. The frequency and intensity of the noise and vibration created by such aircraft at dangerously low altitudes is so great that it is unbearable to a normal human being and has rendered plaintiffs' property greatly diminished in value, almost unsellable and almost unliveable. It is also alleged that the noise and vibration have physically damaged the house itself.

Plaintiffs further allege that as a direct result of the overflights they have been deprived of the free and peaceful use and enjoyment of their property, and therefore their property has been taken and condemned without just compensation and without due process of law contrary to the North Carolina and United States constitutions. They further allege that prior to the construction of the new runway some residents of the area sought to enjoin the City because of expected damage but their suit was dismissed and therefore the City was, within the context of a public meeting, notified of plaintiffs' claim but failed to respond.

In "Count II (Trespass)," after incorporating the allegations of Count I, plaintiffs allege inter alia that the overflights create noise, vibration, air pollutants and dust which invade their property and that they suffer stress, anxiety, fear, annoyance and loss of sleep, all resulting in injury to their physical and mental health; that the City had prior knowledge that these adverse effects would occur and failed to relieve these conditions; and that its continual operation of the runway with such knowledge constitutes intentional, willful, reckless and wanton conduct in utter disregard of plaintiffs' rights and safety and entitle plaintiffs to punitive as well as compensatory damages.

In "Count III (Nuisance)," after incorporating the allegations of Counts I and II, plaintiffs further allege inter alia that the City's operation of the new runway constitutes a nuisance which destroys the peaceful use, enjoyment and possession of their property and is injurious to their health; that such nuisance is maintained and will continue to be maintained intentionally, willfully, wantonly and recklessly, with full knowledge of the effects, entitling plaintiffs to recover punitive as well as compensatory damages.

Prior to filing answer, the City of Charlotte filed motions pursuant to Rule 12 of the Rules of Civil Procedure as follows:

(1) to dismiss the inverse condemnation count on grounds that the exclusive remedy available to the plaintiffs was a proceeding under Chapter 136 of the General Statutes with which their action did not comply.

(2) to dismiss the trespass count on the grounds that any trespass which had occurred or might occur would be in the approach of the runway which trespass is sanctioned in the public interest.

(3) to dismiss both the trespass and nuisance counts on the grounds that no claim for relief upon a theory of tort may be stated against the City if it calls into question the City's decision to provide a public facility.

(4) to strike allegations in the complaint concerning the City's advance knowledge of the adverse impact of the runway's operations and its inaction in spite of that prior knowledge on the grounds that such allegations attempted to litigate the propriety and wisdom of the City's decision to construct the runway.

(5) to strike allegations in the complaint concerning plaintiffs' stress, anxiety, fear, annoyance and loss of sleep, etc., on the grounds that the alleged physical and mental injuries are not proper elements of damages in the case.

(6) to dismiss the complaint for failure to join the trustee and holder of the deed of trust on plaintiffs' property as necessary parties to the action.

(7) to strike allegations of the complaint concerning punitive damages on the grounds that punitive damages cannot be awarded against the City.

The plaintiffs subsequently amended their complaint to conform their allegations to the requirements of the Chapter 136 procedure.

The City's Rule 12 motions were heard before Judge Snepp on 19 May 1981 and by agreement of the parties, his rulings were made in an order entered out of session and filed 29 June 1981. In his order Judge Snepp denied the City's motion to dismiss the inverse condemnation count and denied the motion to dismiss for failure to join necessary parties but ruled the holder of the deed of trust and the trustee to be necessary parties and ordered them joined. He granted all of the City's remaining motions to dismiss and to strike. The plaintiffs excepted to those parts of the order granting the City's motions and appealed, and the trial court certified that there was no just cause for delay for purposes of obtaining appellate review. The City cross-assigned as error the denial of its motion to dismiss the inverse condemnation count. We allowed plaintiffs' petition to bypass the Court...