{ "id": 8527995, "name": "ROSCOE BLEVINS and wife, ETHEL BLEVINS; JAMES FARRINGTON and wife, RUBY FARRINGTON; LLOYD GRAHAM and wife, LINDA GRAHAM; EURA HART, Widow; JEAN B. KEY, Single; ROBERT L. LEWIS and wife, SHIRLEY LEWIS; HETTIE SAPP, Widow; VAUGHN WELCH and wife, MINNIE WELCH; and WAYNE WILLIAMS, Single, Plaintiffs-Appellees v. ALVIN \"JUNIOR\" DENNY; REGGIE TESTERMAN; DANA BROWN; SHARON COWAN; and LINDA GRAHAM, Members of the BOARD OF ALDERMEN of the TOWN OF LANSING, and THE TOWN OF LANSING, Defendants-Appellants", "name_abbreviation": "Blevins v. Denny", "decision_date": "1994-05-17", "docket_number": "No. 9323DC629", "first_page": "766", "last_page": "771", "citations": [ { "type": "official", "cite": "114 N.C. App. 766" } ], "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": "1 ALR2d 338", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "57 ALR2d 1336", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "6 ALR2d 1198", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "15 ALR3d 899", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "170 S.E.2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "173" } ], "opinion_index": 0 }, { "cite": "6 N.C. App. 234", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547618 ], "year": 1969, "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/nc-app/6/0234-01" ] }, { "cite": "398 S.E.2d 475", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "486" } ], "opinion_index": 0 }, { "cite": "327 N.C. 552", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498880 ], "year": 1990, "pin_cites": [ { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0552-01" ] }, { "cite": "112 S.E.2d 40", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "251 N.C. 521", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626405 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/251/0521-01" ] }, { "cite": "93 L.Ed. 1528", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1949, "opinion_index": 0 }, { "cite": "337 U.S. 541", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 572420 ], "weight": 2, "year": 1949, "pin_cites": [ { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/us/337/0541-01" ] }, { "cite": "437 U.S. 463", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181447 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/us/437/0463-01" ] }, { "cite": "472 U.S. 511", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1512327 ], "weight": 6, "year": 1985, "pin_cites": [ { "page": "525" }, { "page": "424", "parenthetical": "citations omitted" }, { "page": "526-27" }, { "page": "425-26" } ], "opinion_index": 0, "case_paths": [ "/us/472/0511-01" ] }, { "cite": "413 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "330 N.C. 761", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511641 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/330/0761-01" ] }, { "cite": "394 S.E.2d 170", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2493281, 2493859, 2497351, 2500047, 2494608 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0137-03", "/nc/327/0137-05", "/nc/327/0137-04", "/nc/327/0137-02", "/nc/327/0137-01" ] }, { "cite": "394 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 595", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307304, 5305804, 5304910, 5308787, 5305112 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0595-03", "/nc/326/0595-04", "/nc/326/0595-01", "/nc/326/0595-05", "/nc/326/0595-02" ] }, { "cite": "389 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "598" }, { "page": "598" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522096 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "531" }, { "page": "531-32" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0527-01" ] } ], "analysis": { "cardinality": 675, "char_count": 11947, "ocr_confidence": 0.735, "pagerank": { "raw": 8.415982154318008e-08, "percentile": 0.483503671449571 }, "sha256": "40a6b31f24f025dbd66100550d90861a78770c295ab0fdd18915bd8ad5210a04", "simhash": "1:9a294476e5240455", "word_count": 1927 }, "last_updated": "2023-07-14T17:01:59.295429+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and JOHN concur." ], "parties": [ "ROSCOE BLEVINS and wife, ETHEL BLEVINS; JAMES FARRINGTON and wife, RUBY FARRINGTON; LLOYD GRAHAM and wife, LINDA GRAHAM; EURA HART, Widow; JEAN B. KEY, Single; ROBERT L. LEWIS and wife, SHIRLEY LEWIS; HETTIE SAPP, Widow; VAUGHN WELCH and wife, MINNIE WELCH; and WAYNE WILLIAMS, Single, Plaintiffs-Appellees v. ALVIN \u201cJUNIOR\u201d DENNY; REGGIE TESTERMAN; DANA BROWN; SHARON COWAN; and LINDA GRAHAM, Members of the BOARD OF ALDERMEN of the TOWN OF LANSING, and THE TOWN OF LANSING, Defendants-Appellants" ], "opinions": [ { "text": "JOHNSON, Judge.\nThe Town of Lansing in Ashe County, North Carolina (hereafter, Town) conducted a bond referendum on 17 June 1986 in order to construct a water and sewer system. A week prior to the vote on the bond referendum, by letter dated 9 June 1986 to the town\u2019s residents, the Town Clerk/Finance Officer urged support of the bond referendum, stating that the Town had no intention of requiring mandatory water hook-ups to the proposed water and sewer system. The bond referendum passed by an overwhelming majority.\nFollowing the construction of the Town\u2019s water and sewer system, the Town Clerk/Finance Officer informed the citizens of the Town that because of the few resident taxpayers located within the Town and the large amount of money necessary to complete the project, mandatory hook-ups were the Town\u2019s only option, unless taxes were raised to a prohibitive amount.\nOn 17 August 1989, the Town passed an ordinance requiring every person owning improved property within the corporate limits to connect to the Town\u2019s water and sewer system. An amendment to the ordinance followed, pursuant to North Carolina General Statutes \u00a7 160A-175 (Cum. Supp. 1993), establishing fines and penalties for violation of the ordinance.\nIn a separate action to which they counterclaimed, Roscoe and Ethel Blevins were named defendants in an action brought by the Town, requiring that they connect to the Town\u2019s water and sewer system or be subject to fines and penalties. The Blevins then joined with other residents who have refused to comply with the Town\u2019s ordinance in the lawsuit sub judice against the Town and Town officials. Plaintiff residents in this case asked the court to grant a writ of mandamus requiring defendants to operate the water and sewer system without requiring plaintiff residents to connect to said system; for a permanent injunction preventing defendants from requiring said hook-up; for compensation for plaintiff residents\u2019 private wells and septic systems of which they claim they will be deprived; for a survey of the corporate limit; and for damages on the theory of unjust enrichment. Defendants answered, claiming defenses of laches and the statute of limitations among others, and counterclaiming against plaintiff residents for their noncompliance with the Town\u2019s ordinance. Plaintiff residents filed a reply to defendants\u2019 counterclaim. With plaintiff residents\u2019 consent, defendants amended their reply to include the defense of sovereign immunity. Defendant Town made a motion for summary judgment which was denied on 18 May 1993, and defendant Town gave notice of appeal to this Court.\nThe issue in both this case and a companion case filed simultaneously, Town of Lansing v. Key, No. 9323DC640 (N.C. App. filed 17 May 1994), is the same: did the trial court properly deny defendant Town\u2019s motion for summary judgment as a matter of law?\nWe note that at the trial level, the Town argued their right to appeal this interlocutory order pursuant to Corum v. University of North Carolina, 97 N.C. App. 527, 389 S.E.2d 596, stay allowed, 326 N.C. 595, 394 S.E.2d 453, disc. review and writ allowed and dismissal denied, 327 N.C. 137, 394 S.E.2d 170 (1990), aff\u2019d in part; rev\u2019d in part on other grounds, 330 N.C. 761, 413 S.E.2d 276 (1992). The motion for summary judgment in Corum was based on immunity defenses to a section 1983 claim. In Corum, we stated:\nGenerally, the denial of summary judgment does not affect a substantial right and is not appealable. (Citations omitted.) In the instant case, however, we hold that the denial of summary judgment affected a substantial right and is subject to review. We reach this conclusion in light of the holding of the United States Supreme Court in Mitchell v. Forsyth, 472 U.S. 511, 86 L.Ed.2d 411 (1985), a case in which the defendant federal official\u2019s summary judgment motions, on the grounds of absolute and qualified immunity, had been denied in District Court. In Mitchell, the Supreme Court held that \u201cdenial of a substantial claim of absolute immunity is an order appealable before final judgment, for the essence of absolute immunity is its possessor\u2019s entitlement not to have to answer for his conduct in a civil damages action.\u201d 472 U.S. at 525, 86 L.Ed.2d at 424 (citations omitted). Similarly, the Court concluded that denial of a public official\u2019s claim of qualified immunity from suit, to the extent that it turns on the legal questions of whether the conduct complained of violated \u201cclearly established law\u201d ... is also appealable as a \u201cfinal decision\u201d within the meaning of 28 U.S.C. sec. 1291.\nCorum, 97 N.C. App. at 531, 389 S.E.2d at 598. In Mitchell, the United States Supreme Court went on to explain that\nentitlement [to qualified immunity] is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.\nAn appealable interlocutory decision must satisfy two additional criteria: it must \u201cconclusively determine the disputed question,\u201d Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 57 LEd2d 351, 98 S.Ct 2454 (1978), and that question must involve a \u201cclai[m] of right separable from, and collateral to, rights asserted in the action,\u201d [Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 93 L.Ed. 1528, 69 S.Ct. 1221 (1949).] The denial of a defendant\u2019s motion for dismissal or summary judgment on the ground of qualified immunity easily meets these requirements.\nCorum, 97 N.C. App. at 531-32, 389 S.E.2d at 598, quoting Mitchell, 472 U.S. at 526-27, 86 L.Ed.2d at 425-26. (Emphasis retained.) We find the denial of the Town\u2019s summary judgment motion in the instant case immediately appealable.\nUpon examination of the evidence in this case, we find that defendant Town was performing a governmental function when it passed the ordinance mandating connection to the water and sewer system, and that therefore, the Town is immune from tort liability. (See Rhyne v. Mount Holly, 251 N.C. 521, 112 S.E.2d 40 (1960) for a list of situations in which municipalities have been held immune by reason of being engaged in governmental functions.) In support of our holding, we cite McNeill v. Harnett County, 327 N.C. 552, 572, 398 S.E.2d 475, 486 (1990), where the North Carolina Environmental Management Commission found unsanitary conditions and gave the Buies Creek-Coats Water and Sewer District permission to proceed to construct a sewer system to serve the district, and our Supreme Court held that \u201cthe ordinances mandating connection to the county-operated sewer system, and the payment of connection charges and monthly user fees for the sewer service are valid exercises of the police power[.]\u201d See North Carolina General Statutes \u00a7 160A-317 (1993), entitled \u201cPower to require connections to water or sewer service and the use of solid waste collection services,\u201d which authorizes municipalities to require citizens to either connect to a water or sewer line, or, to avoid hardship, to pay a periodic availability charge. (See also McCombs v. City of Asheboro, 6 N.C. App. 234, 240, 170 S.E.2d 169, 173 (1969), where our Court said \u201cconstruction of a sewerage system is a governmental function[.]\u201d)\nA reading of the letter sent by the Town Clerk/Finance Officer to the citizens of Lansing indicates that \u201c50% of the homes or businesses surveyed [by the Ashe County Health Department in 1985] had illegal discharge of sewage, [and that] 10% of existing septic tanks were not functioning[.J\u201d The letter continues:\nThe study clearly indicates that the sewage disposal problems in Lansing are widespread and serious and are posing a definite threat to our health and well-being. . . .\nThe officials of the Ashe County Health Department are coming under increased pressure from Raleigh and elsewhere to do something about Lansing\u2019s violators of State health laws.\nThe letter further indicates the efforts made by the Lansing town officials to secure grant monies and a FmHA loan to go toward the costs of the new water and sewer system. Although there was no evidence to indicate that the purchase of the new water and sewer system at the time of the bond referendum was mandatory, it appears it was inevitable. Therefore, we find the ordinance mandating connection to the water and sewer system a valid exercise of the Town\u2019s police power and find that the Town cannot be estopped from requiring said connection.\nAdditionally, we note that actions asserting a \u201ctaking\u201d are to be \u201cinitiated within 24 months of the date of the taking of the affected property or the completion of the project involving the taking, whichever shall occur later.\u201d North Carolina General Statutes \u00a7 40A-51(a)(1984).\nReversed and remanded for judgment to be entered in favor of defendant Town.\nJudges GREENE and JOHN concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Kilby, Hodges & Hurley, by John T. Kilby, and Vannoy & Reeves, by Jimmy D. Reeves, for plaintiffs-appellees.", "Johnston and Johnston, by John C. Johnston, for defendants-appellants." ], "corrections": "", "head_matter": "ROSCOE BLEVINS and wife, ETHEL BLEVINS; JAMES FARRINGTON and wife, RUBY FARRINGTON; LLOYD GRAHAM and wife, LINDA GRAHAM; EURA HART, Widow; JEAN B. KEY, Single; ROBERT L. LEWIS and wife, SHIRLEY LEWIS; HETTIE SAPP, Widow; VAUGHN WELCH and wife, MINNIE WELCH; and WAYNE WILLIAMS, Single, Plaintiffs-Appellees v. ALVIN \u201cJUNIOR\u201d DENNY; REGGIE TESTERMAN; DANA BROWN; SHARON COWAN; and LINDA GRAHAM, Members of the BOARD OF ALDERMEN of the TOWN OF LANSING, and THE TOWN OF LANSING, Defendants-Appellants\nNo. 9323DC629\n(Filed 17 May 1994)\n1. Appeal and Error \u00a7 118 (NCI4th) \u2014 water and sewer system \u2014 required connection \u2014action against Town \u2014summary judgment for Town denied \u2014immediately appealable\nThe denial of summary judgment for defendant Town of Lansing was immediately appealable in an action against the Town arising from an ordinance requiring water and sewer connections.\nAm Jur 2d, Appeal and Error \u00a7 14.\nReviewability of order denying motion for summary judgment. 15 ALR3d 899.\n2. Municipal Corporations \u00a7 413 (NCI4th) \u2014 water and sewer system \u2014required connection \u2014governmental function \u2014Town\u2019s tort liability \u2014immunity\nThe Town of Lansing was performing a governmental function when it passed an ordinance mandating connection to a water and sewer system and is immune from tort liability for depriving plaintiffs of their wells and septic systems and for unjust enrichment.\nAm Jur 2d, Municipal, County, School, and State Tort Liability \u00a7\u00a7 87 et seq.\nComment Note. \u2014Municipal immunity from liability for torts. 6 ALR2d 1198.\nMunicipal operation of sewage disposal plant as governmental or proprietary function, for purposes of tort liability. 57 ALR2d 1336.\n3. Estoppel \u00a7 3 (NCI4th)~ action to enjoin ordinance requiring water and sewer connection \u2014valid exercise of police power \u2014 no estoppel\nThe Town of Lansing could not be estopped from requiring connection to a water and sewer system where the Town Clerk/Finance officer had sent town residents a letter before the referendum stating that the Town had no intention of requiring hook-ups and informed residents after the construction of the system that mandatory hook-ups were the Town\u2019s only option. The ordinance mandating connection to the water and sewer system was a valid exercise of the Town\u2019s police power.\nAm Jur 2d, Estoppel and Waiver \u00a7\u00a7 114-133.\nComment Note. \u2014Applicability of doctrine of estoppel against government and its govermental agencies. 1 ALR2d 338.\n4. Eminent Domain \u00a7 295 (NCI4th)\u2014 required water and sewer connection \u2014 taking \u2014 limitation\nActions asserting a \u201ctaking\u201d are to be initiated within 24 months of the date of the taking of the affected property or the completion of the project involving the taking, whichever shall come later. N.C.G.S. \u00a7 40A-51(a).\nAm Jur 2d, Eminent Domain \u00a7\u00a7 498, 499.\nAppeal by defendants from order entered 18 May 1993 by Judge Michael E. Helms in Ashe County District Court. Heard in the Court of Appeals 9 March 1994.\nKilby, Hodges & Hurley, by John T. Kilby, and Vannoy & Reeves, by Jimmy D. Reeves, for plaintiffs-appellees.\nJohnston and Johnston, by John C. Johnston, for defendants-appellants." }, "file_name": "0766-01", "first_page_order": 794, "last_page_order": 799 }