{ "id": 8520396, "name": "ADAMS OUTDOOR ADVERTISING OF CHARLOTTE, a Minnesota Limited Partnership v. THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION", "name_abbreviation": "Adams Outdoor Advertising of Charlotte v. North Carolina Department of Transportation", "decision_date": "1993-09-21", "docket_number": "No. 9210SC937", "first_page": "120", "last_page": "125", "citations": [ { "type": "official", "cite": "112 N.C. App. 120" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "7 ALR5th 113", "category": "reporters:specialty", "reporter": "A.L.R. 5th", "opinion_index": -1 }, { "cite": "126 S.E.2d 87", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "90" } ], "opinion_index": 0 }, { "cite": "257 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568155 ], "year": 1962, "pin_cites": [ { "page": "414" } ], "opinion_index": 0, "case_paths": [ "/nc/257/0410-01" ] }, { "cite": "15 L.Ed.2d 67", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1965, "opinion_index": 0 }, { "cite": "382 U.S. 822", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6211431, 6211657, 6212301, 6211952, 6212562, 6211223 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/us/382/0822-02", "/us/382/0822-03", "/us/382/0822-05", "/us/382/0822-04", "/us/382/0822-06", "/us/382/0822-01" ] }, { "cite": "140 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1965, "pin_cites": [ { "page": "380" } ], "opinion_index": 0 }, { "cite": "263 N.C. 677", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572593 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/263/0677-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 136-18", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1992, "pin_cites": [ { "page": "(9)" } ], "opinion_index": 0 }, { "cite": "293 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "109" }, { "page": "199" }, { "page": "109" } ], "opinion_index": 0 }, { "cite": "306 N.C. 187", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567947 ], "year": 1982, "pin_cites": [ { "page": "198-99" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0187-01" ] }, { "cite": "272 S.E.2d 920", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "922" }, { "page": "923" } ], "opinion_index": 0 }, { "cite": "50 N.C. App. 150", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2674319 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "153-54" }, { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/nc-app/50/0150-01" ] }, { "cite": "322 S.E.2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 2166877 ], "year": 1984, "pin_cites": [ { "page": "765" } ], "opinion_index": 0, "case_paths": [ "/sc/286/0070-01" ] }, { "cite": "312 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4758734 ], "year": 1984, "pin_cites": [ { "page": "416" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0410-01" ] }, { "cite": "388 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "136" } ], "opinion_index": 0 }, { "cite": "326 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307411 ], "year": 1990, "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0205-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 136-111", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1986, "opinion_index": 0 } ], "analysis": { "cardinality": 586, "char_count": 10430, "ocr_confidence": 0.735, "pagerank": { "raw": 1.5605810398841993e-07, "percentile": 0.6768510442114579 }, "sha256": "8bb0e92a21b84cd42b37d0138273a895cd084a2255bcaa8babf458826f96d4a7", "simhash": "1:b2699d9a14690d42", "word_count": 1637 }, "last_updated": "2023-07-14T15:48:17.524906+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WELLS and ORR concur." ], "parties": [ "ADAMS OUTDOOR ADVERTISING OF CHARLOTTE, a Minnesota Limited Partnership v. THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION" ], "opinions": [ { "text": "McCRODDEN, Judge.\nIn this appeal, we must determine whether defendant\u2019s 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\u2019s 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 Mecklen-burg County. Plaintiff\u2019s 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. \u00a7 136-111 (1986).\nPlaintiff\u2019s complaint alleged, inter alia, that subsequent to the erection of plaintiff\u2019s billboards, DOT began a program of planting trees and vegetation within the state owned right-of-way adjacent to plaintiff\u2019s 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. \u00a7 136-111.\nA motion to dismiss pursuant to N.C. Gen. Stat. \u00a7 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).\nAlthough plaintiff asserted in its complaint that it should be awarded compensation pursuant to N.C.G.S. \u00a7 136-111 because DOT\u2019s actions constituted a \u201ctaking\u201d 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.\nWe will, however, address whether plaintiffs complaint states a cause of action pursuant to N.C.G.S. \u00a7 136-111. That statute provides that \u201c[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 . . .\u201d 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 \u201ca substantial interference with elemental rights growing out of the ownership of the property.\u201d 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.\nWhile Black\u2019s 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 \u201cinjuries which are not merely consequential.\u201d Consequential damages means \u201c[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.\u201d Black\u2019s Law Dictionary 390 (6th ed. 1990). Black\u2019s Law Dictionary defines incidental as \u201c[depending 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.\u201d Black\u2019s Law Dictionary 762. Using these definitions, we conclude that plaintiff\u2019s complaint fails to state a claim of inverse condemnation.\nPlaintiff\u2019s complaint states in pertinent part:\n6. . . . 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.\n9. Because of the size and placement of these trees at or near plaintiff\u2019s billboards, the view and legibility of the billboards has been substantially and severely limited and obscured, and many billboards have been rendered economically useless.\n11. Plaintiff\u2019s advertisers have begun cancelling their advertisements on the referenced signs due to the visual obstruction created by the referenced trees. Plaintiff\u2019s property, or compensable interest therein, thus has been taken by the intentional or unintentional act of the DOT ... in such a manner to render the billboards economically useless ....\n13.... Defendant has thus unilaterally, intentionally, and without due process of law disregarded and destroyed all economically viable use plaintiff has for its valuable billboards and related property interests, the destruction of which constitutes a taking for which plaintiff is entitled to just compensation.\nDefendant\u2019s planting of trees as part of its beautification project was defendant\u2019s primary act, of which the obscuring of plaintiff\u2019s billboards was only a consequential or incidental result. Moreover, we note that defendant\u2019s use of its right-of-way to plant trees is consistent with its statutory powers. N.C. Gen. Stat. \u00a7 136-18(9) (Supp. 1992) empowers DOT to \u201cemploy appropriate means for properly selecting, planting and protecting trees, shrubs, vines, grasses or legumes in the highway right-of-way in the promotion of . . . landscaping.\u201d This statute was enacted prior to 1981, when plaintiff\u2019s predecessors in interest first entered into agreements for the lease of the property at issue. Therefore, plaintiff was charged with notice at the time it erected the billboards that DOT might plant trees and shrubs in the right-of-way near its leased premises. Finally, although there is no case directly addressing the issue raised by this case, North Carolina case law supports by analogy the trial court\u2019s ruling that the obstruction of the right to view does not constitute a taking of property. The Supreme Court, for example, held in Wofford v. Highway Commission that, when a public highway was closed so as to leave plaintiff\u2019s property on a cul-de-sac, there was no compensable damage due to the diminution of value of the property resulting from the limitation of access. 263 N.C. 677, 140 S.E.2d 376, cert. denied, 382 U.S. 822, 15 L.Ed.2d 67 (1965). The Court stated that \u201c[i]f plaintiffs were permitted to recover for impairment of property value, because of the circuity of travel thereto and therefrom and the dwindling of traffic by their property, resulting from the street obstruction, practically every property owner in a town could recover for the same reasons when the Highway Commission constructs a by-pass to expedite traffic.\u201d Id. at 682, 140 S.E.2d at 380. In Smith v. Highway Commission, 257 N.C. 410, 414, 126 S.E.2d 87, 90 (1962), the Court stated that the \u201c[incidental interference with the abutting owner\u2019s easements of light, air, and access by reason of the change of grade [on the road] does not entitle him to compensation . . . .\u201d\nFor its argument, plaintiff fails to provide any statutory basis or authority for a governmental taking based upon the \u201cright to be seen.\u201d As support for its argument that the complaint sufficiently states a claim for the taking of its property, plaintiff cites the Advertising Co. case. However, that case, which also addressed the question of whether the complaint stated a claim for relief, is distinguishable from the instant case since it involved the cutting down of plaintiff\u2019s billboard. Advertising Co., 50 N.C. App. at 154, 272 S.E.2d at 923.\nPlaintiff fails also to present any compelling reason why we should find a basis or authority for a taking based upon the \u201cright to be seen,\u201d and we refuse to do so. We rule, therefore, that the obstruction of view of plaintiff\u2019s billboards due to the vegetation and trees planted by DOT as part of the highway beautification project does not amount to a taking of plaintiffs property. The trial court properly dismissed plaintiff\u2019s complaint for failure to state a claim.\nAffirmed.\nJudges WELLS and ORR concur.", "type": "majority", "author": "McCRODDEN, Judge." } ], "attorneys": [ "Wilson & Waller, P.A., by Betty S. Waller and Brian E. Upchurch, for plaintiff-appellant.", "Attorney General Lacy H. Thornburg, by Assistant Attorney General John F. Maddrey and Assistant Attorney General Elizabeth N. Strickland, for the State." ], "corrections": "", "head_matter": "ADAMS OUTDOOR ADVERTISING OF CHARLOTTE, a Minnesota Limited Partnership v. THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION\nNo. 9210SC937\n(Filed 21 September 1993)\nEminent Domain \u00a7\u00a7 34, 287 (NCI4th)\u2014 DOT\u2019s planting of trees \u2014 obstruction of billboards \u2014no taking of property\nThe obstruction of view of plaintiff\u2019s billboards due to the vegetation and trees planted by DOT as part of a highway beautification project did not amount to a taking of plaintiff\u2019s property by inverse condemnation. N.C.G.S. \u00a7 136-111.\nAm Jur 2d, Eminent Domain \u00a7\u00a7 501 et seq.\nEminent domain: compensability of loss of visibility of owner\u2019s property. 7 ALR5th 113.\nAppeal by plaintiff from order entered 11 June 1992 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 8 July 1993.\nOn 8 January 1992, plaintiff instituted this action by filing a complaint alleging inverse condemnation of its property. On 11 March 1992, the North Carolina Department of Transportation (DOT) filed a motion to dismiss plaintiffs complaint for failure to state a claim. From Judge Stephens\u2019 11 June 1992 order allowing defendant\u2019s motion to dismiss, plaintiff appeals.\nWilson & Waller, P.A., by Betty S. Waller and Brian E. Upchurch, for plaintiff-appellant.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General John F. Maddrey and Assistant Attorney General Elizabeth N. Strickland, for the State." }, "file_name": "0120-01", "first_page_order": 150, "last_page_order": 155 }