Smith v. City of Charlotte

• Decision Date: 04 March 1986
• Docket Number: No. 8526SC979,8526SC979
• Citation: 79 N.C.App. 517,339 S.E.2d 844
• Court: North Carolina Court of Appeals
• Parties: Julius Robert SMITH, Jr. and wife, Nancy Mullins Smith v. CITY OF CHARLOTTE, a Municipal Corporation.

Page 844

339 S.E.2d 844

79 N.C.App. 517

Julius Robert SMITH, Jr. and wife, Nancy Mullins Smith v. CITY OF CHARLOTTE, a Municipal Corporation.

No. 8526SC979.

Court of Appeals of North Carolina.

March 4, 1986.

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

Underwood, Kinsey & Warren by C. Ralph Kinsey, Jr. and Kenneth S. Cannaday, Charlotte, for defendant-appellee.

EAGLES, Judge.

G.S. Chapter 40A, urged by defendant as a bar to plaintiffs' first claim, became effective 1 January 1982. This lawsuit is one of 44 airport inverse condemnation actions filed against defendant after 1 January 1982. Defendant has filed similar motions to dismiss in each case. The parties in the other actions have stipulated to continuances pending the outcome of this appeal.

Numerous other actions involving takings occurring as a result of construction and operation of Runway 18R/36L have already reached the appellate courts. See Long v. City of Charlotte, 306 N.C. 187, 293 S.E.2d 101 (1982); Robinson v. City of Charlotte, 306 N.C. 213, 293 S.E.2d 117 (1982); Bandy v. City of Charlotte, 72 N.C.App. 604, 325 S.E.2d 17, disc. rev. denied, 313 N.C. 596, 330 S.E.2d 605 (1985); Cochran v. City of Charlotte, 53 N.C.App. 390, 281 S.E.2d 179 (1981), disc. rev. denied, 304 N.C. 725, 288 S.E.2d 380 (1982).

I

We consider first the effect of G.S. 40A-51(a) as it relates to plaintiffs' first claim for relief. G.S. 40A-51(a) appears to bar as untimely all claims filed more than 24 months after "the date of the taking of the affected property or the completion of the project involving the taking, whichever shall occur later." Id. Plaintiffs' first claim alleges a taking occurring when Runway 18R/36L opened in June 1979. They did not file their lawsuit until November 1983. The statute, if applied literally, would bar the claim. Plaintiffs' arguments raise two decisive questions: (1) Does G.S. Chapter 40A provide the exclusive means for determining these inverse condemnation claims? (2) If so, may the time limit in G.S. 40A-51(a) be constitutionally applied to these plaintiffs?

II

A

Chapter 40A was enacted by the General Assembly in 1981 to revise and consolidate existing laws governing eminent domain. 1981 N.C.Sess.Laws c. 919, s. 1. The legislature expressly declared that the chapter's provisions provided the exclusive means of condemnation:

It is the intent of the General Assembly that the procedures provided by this Chapter shall be the exclusive condemnation procedures to be used in this State by all private condemnors and all local public condemnors. All other provisions in laws, charters, or local acts authorizing the use of other procedures by municipal or county governments or agencies

or political subdivisions thereof, or by corporations, associations or other persons are hereby repealed effective January 1, 1982. Provided, that any condemnation proceeding initiated prior to January 1, 1982, may be lawfully completed pursuant to the provisions previously existing.

G.S. 40A-1.

The cited language does not expressly state that Chapter 40A is the sole means for bringing inverse condemnation actions. The term "inverse condemnation" is not mentioned in the chapter but G.S. 40A-51, which provides for actions by private property owners where their property has been taken by governmental action without compensation, is clearly the relevant statute. Inverse condemnation is simply a device to force a governmental body to exercise its power of condemnation, even though it may have no desire to do so. Hoyle v. City of Charlotte, 276 N.C. 292, 172 S.E.2d 1 (1970). It allows a property owner to obtain compensation for a taking in fact, even though no formal exercise of the taking power has occurred. See City of Charlotte v. Spratt, 263 N.C. 656, 140 S.E.2d 341 (1965). G.S. 40A-51 provides the private property owner with a means to compel government action. If Chapter 40A provides the sole means for the City to condemn aviation easements over plaintiffs' land, it follows that plaintiffs' sole inverse condemnation remedy would lie under G.S. 40A-51.

B

Plaintiffs argue that because G.S. 40A-3 does not specifically mention private landowners, they are not limited to the statutory remedies of Chapter 40A. It has been established that they no longer have any private common law actions for damages in trespass or nuisance in municipal airport overflight cases; their sole remedy is inverse condemnation. Long v. City of Charlotte, supra. Plaintiffs' action here is not directly for money damages, but to compel the exercise of defendant's power of eminent domain, in which damages, if any, will be determined. G.S. 40A-51(a) ("The procedure hereinbefore set out ... shall be followed for the ... determination of just compensation."); G.S. 40A-47, -48, 40A-62 et seq. G.S. 40A-1 makes clear the legislative intent that defendant's exercise of its power of eminent domain, unless specifically excepted, should occur exclusively under the provisions of that chapter. Even though private landowners are not specifically mentioned in G.S. 40A-3, we hold that they are bound by the provisions of Chapter 40A.

C

Some of the uncertainty on this issue arises from the discussion in Long of "common law" inverse condemnation actions. Defendant City is an agency created by the State, and has no authority other than that granted by the legislature, either expressly or by necessary implication. State v. Furio, 267 N.C. 353, 148 S.E.2d 275 (1966). Defendant may exercise its delegated right of eminent domain only as authorized to do so by statute or its charter. Town of Mount Olive v. Cowan, 235 N.C. 259, 69 S.E.2d 525 (1952). If there is no legislative authorization, there is no power to condemn. See State v. Core Banks Club Properties, Inc., 275 N.C. 328, 167 S.E.2d 385 (1969). If an inverse condemnation action is only a procedure to compel the exercise of this statutory power, a "common law" inverse condemnation action could only be an action to compel its exercise where the statute, unlike G.S. Chapter 40A, did not establish such procedure.

This was the result reached in Long: there the court defined a "common law" inverse condemnation action as interference with private property under color of legal authority for a public purpose. 306 N.C. at 199, 293 S.E.2d at 109, citing Penn v. Carolina Virginia Coastal Corp., 231 N.C. 481, 57 S.E.2d 817 (1950). Public purpose is defined if at all by statute. State v. Core Banks Club Properties, Inc., supra. The Long court accordingly recognized a common law action arising out of the condemnation

authority of G.S. Chapter 160A. The Long court did not, nor do we, recognize the existence of any general common law right of action where there is no underlying statutory condemnation authority.

D

Our interpretation is consistent with the interpretation of other statutory procedures governing inverse condemnation. In Harwood v. City of Concord, 201 N.C. 781, 161 S.E. 534 (1931), a street right-of-way case, the Supreme Court held that a statute providing for appraisal and assessment of damages and a right of appeal for street condemnation was the exclusive remedy for recovery by private landowners. The court affirmed a directed verdict that plaintiff take nothing in his common law action for damages. See also 1 Am.Jur.2d Actions Sections 75-76 (1962). Similarly, in Wilcox v. N.C. State Highway Comm., 279 N.C. 185, 181 S.E.2d 435 (1971) the court affirmed a ruling that the two-year statute of limitations constituted a "complete defense" to the action for inverse condemnation, notwithstanding the fact that plaintiff had filed his action within the limitations periods set by other statutes of limitations.

E

One exception to this rule has been recognized in Midgett v. N.C. State Highway Comm., 260 N.C. 241, 132 S.E.2d 599 (1963). There the court relied on Harwood for the general proposition that the statutory remedy for recovery of damages for governmental takings is ordinarily exclusive. However, in Midgett flood damage to plaintiff's land occurred well after the statute of limitations had run. The statute then in effect provided that the limitation period commenced when the project in question was completed. No damage occurred at the time the highway was built, although injury was foreseeable then and plaintiff pointed this out to defendant. The court held that since plaintiff was constitutionally protected from the taking or damage, and no statute afforded him a remedy under that particular fact situation, he had a common law right of action. The key aspect of Midgett, absent here, is that plaintiff did not seek compensation for a permanent taking for a public use, but for damages from a nuisance arising from public activity adjacent to his land. The North Carolina cases cited in Midgett follow this logic: a statute of limitations for seeking compensation for a taking for a public purpose project would not apply to actions for negative nuisance damages. Eller v. Bd. of Educ., 242 N.C. 584, 89 S.E.2d 144 (1955); City of Raleigh v. Edwards, 235 N.C. 671, 71 S.E.2d 396 (1952). See Lea Co. v. N.C. Bd. of Trans., 308 N.C. 603, 304 S.E.2d 164 (1983) (recognizing underlying nuisance theory).

The result of the Midgett case has since been incorporated into both G.S. 136-111 and G.S. 40A-51: the statutory time begins to run on completion of the project or the taking, whichever is later. Because of the statutory amendments, it is not clear that Midgett would apply today, even on identical facts, where a private landowner filed after expiration of the statutory period. The facts of this case clearly are distinguishable from Midgett: plaintiffs incurred damage beginning in 1979, by their own allegation. They offer no explanation for their delay in filing this action, nor does it appear legally excusable, in light of the ongoing nature of the airport...