{ "id": 11919452, "name": "ALBERT R. TOLBERT, and wife, WILLA C. TOLBERT, Plaintiffs v. COUNTY OF CALDWELL, A Political Subdivision of the State of North Carolina, Defendant", "name_abbreviation": "Tolbert v. County of Caldwell", "decision_date": "1996-03-05", "docket_number": "No. COA95-486", "first_page": "653", "last_page": "656", "citations": [ { "type": "official", "cite": "121 N.C. App. 653" } ], "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": "37 ALR3d 127", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "172 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "7", "parenthetical": "owner and operator of airport responsible for taking required by federal regulations" } ], "opinion_index": 0 }, { "cite": "276 N.C. 292", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561022 ], "year": 1970, "pin_cites": [ { "page": "302", "parenthetical": "owner and operator of airport responsible for taking required by federal regulations" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0292-01" ] }, { "cite": "93 F. Supp. 70", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 288354 ], "year": 1950, "pin_cites": [ { "page": "72", "parenthetical": "local government responsible for taking necessary to comply with federal Flood Control Act" } ], "opinion_index": 0, "case_paths": [ "/f-supp/93/0070-01" ] }, { "cite": "8 L. Ed. 2d 16", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1962, "opinion_index": 0 }, { "cite": "369 U.S. 857", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6259264, 6258664, 6258392, 6258073, 6259836, 6259549, 6260158 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/us/369/0857-04", "/us/369/0857-03", "/us/369/0857-02", "/us/369/0857-01", "/us/369/0857-06", "/us/369/0857-05", "/us/369/0857-07" ] }, { "cite": "369 U.S. 84", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6165384 ], "weight": 2, "pin_cites": [ { "page": "89" }, { "page": "589" } ], "opinion_index": 0, "case_paths": [ "/us/369/0084-01" ] }, { "cite": "40 CFR \u00a7 258.25", "category": "laws:admin_compilation", "reporter": "C.F.R.", "year": 1995, "pin_cites": [ { "parenthetical": "similar federal regulation" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 447, "char_count": 7474, "ocr_confidence": 0.74, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.24426906742439425 }, "sha256": "6f7494de8189d37af003d408b5a3c0a3919ad382a46fc268e92a6fccad213916", "simhash": "1:a6bf053a78e98b92", "word_count": 1180 }, "last_updated": "2023-07-14T20:54:48.563497+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and JOHN concur." ], "parties": [ "ALBERT R. TOLBERT, and wife, WILLA C. TOLBERT, Plaintiffs v. COUNTY OF CALDWELL, A Political Subdivision of the State of North Carolina, Defendant" ], "opinions": [ { "text": "GREENE, Judge.\nThe County of Caldwell (defendant) appeals from a partial summary judgment finding defendant liable for compensable damages incurred from a temporary taking of Allen and Willa Tolbert\u2019s (plaintiffs) easement and a jury verdict and judgment, finding the damages owed to plaintiffs by defendant for the temporary taking to be $6,625.00. Defendant also appeals an order taxing the costs of the action in the amount of $9,384.41 to defendant. Plaintiffs appeal the jury verdict and judgment.\nDefendant operates a solid waste disposal site (the landfill) on property located adjacent to plaintiffs\u2019 property in Caldwell County. On 18 September 1980, defendant entered into a right-of-way agreement (Agreement) with Edgar Tolbert (Tolbert), plaintiffs\u2019 predecessor in title, which was recorded in the Register of Deeds of Caldwell County. The Agreement created a sixty foot easement across the landfill, for the use and benefit of Tolbert, his heirs and assigns. Defendant agreed that the sixty foot easement would be opened to the public when defendant ceased its landfill operation, or ten years from 18 September 1980, whichever occurred first.\nAfter defendant entered into the Agreement, a state agency promulgated regulations requiring landfill operators to control public access to the landfill. 15A NCAC 13B .0505(8)(a) (Sept. 1995); see 40 CFR \u00a7 258.25 (1995) (similar federal regulation).\nBetween 19 September 1990 and 22 July 1994, the defendant, consistent with the regulations, \u201cmaintained gates and fences across the easement,\u201d thus prohibiting the public\u2019s use of the easement to gain access to plaintiffs\u2019 property. Plaintiffs were able to use the easement, but only during operating hours of the landfill, which was approximately 8:00 a.m. to 5:00 p.m. during the week, and for a few hours on Saturdays.\nPlaintiffs allege that defendant\u2019s actions, in closing access to the easement \u201cextinguished Plaintiffs\u2019 property rights in said easement and .. . constitutes a taking,\u201d for which plaintiffs seek compensation. Defendant admitted that there has been a taking between 19 September 1990 and 22 July 1994 but claimed that it had not taken the easement and that the taking was made by the federal and state governments. Both parties requested summary judgment. The trial court ruled that \u201c[t]here has been a temporary taking of the subject easement from September 19, 1990 until July 22, 1994\u201d and if the taking caused plaintiffs\u2019 damages, they are entitled to recover such damages from defendant.\nThe jury found that $6,625.00 was just compensation for the temporary taking of plaintiffs\u2019 right to have public access to their property between 1990 and 1994. By judgment entered 7 November 1994, defendant was ordered to pay plaintiffs $6,625.00 plus costs.\nThe issue is whether the defendant is responsible for the taking.\nDefendant claims that because state and federal rules regulating the access and security of its landfill forced defendant to \u201ctake action which has the effect of a \u2018taking,\u2019 \u201d it is not the responsible party. We disagree.\nThe defendant is the party responsible for the \u201coperation of solid waste disposal facilities,\u201d N.C.G.S. \u00a7 130A-309.09A (1995), which includes the landfill in question, N.C.G.S. \u00a7\u00a7 130A-290(31), (35), (36) (1995), and must operate it in accordance with Chapter 130A, Article 9 of the North Carolina General Statutes. N.C.G.S. \u00a7\u00a7 130A-290 through 310.23 (1995). Chapter 130A, Article 9 grants the Department of Environment, Health and Natural Resources the authority to promulgate rules affecting the operation and maintenance of these facilities. N.C.G.S. \u00a7 130A-294 (1995). It is pursuant to this authority that the regulations were promulgated requiring that the facility be \u201csecured by means of gates, chains, berms, fences, and other security measures ... to prevent unauthorized entry.\u201d 15A NCAC 13B ,0508(8)(a) (Sept. 1995). This regulatory scheme, although not the specific regulation at issue, was in place prior to the execution of the Agreement, 1977 N.C. Sess. Laws ch. 1216 \u00a7 1 (codified as N.C.G.S. \u00a7 130-166.18) (repealed), and remains in place today. See N.C.G.S. \u00a7 130A-294 (1995).\nThe defendant is the party responsible for the operation of the landfill, the party that executed the Agreement and the party that closed the road. As such it has \u201ctaken\u201d the plaintiffs\u2019 property. In so holding we reject the argument of the defendant that it is absolved from any responsibility because it acted pursuant to state and federal regulations. See Griggs v. County of Allegheny, 369 U.S. 84, 89, 7 L. Ed. 2d 585, 589 (holding that owner and operator of airport responsible for taking of property needed to comply with federal regulation), reh\u2019g denied, 369 U.S. 857, 8 L. Ed. 2d 16 (1962); Danziger v. United States, 93 F. Supp. 70, 72 (E.D. La. 1950) (local government responsible for taking necessary to comply with federal Flood Control Act); Hoyle v. City of Charlotte, 276 N.C. 292, 302, 172 S.E.2d 1, 7 (1970) (owner and operator of airport responsible for taking required by federal regulations). We do not address, as it is not raised in this case, whether the defendant has a claim for contribution or indemnity against either or both the federal and state agencies that required that access to the landfill be limited.\nThe plaintiffs have raised several assignments of error related to rulings by the trial court excluding evidence the plaintiffs attempted to offer. We do not address these arguments, however, because in each instance the plaintiffs failed to make an offer of proof. N.C.G.S. \u00a7 8C-1, Rule 103(a)(2) (1992) (error may not be predicated on ruling excluding evidence unless \u201cthe substance of the evidence was made known to the court by offer or was apparent\u201d).\nPartial summary judgment: Affirmed.\nTrial: No error.\nJudges WYNN and JOHN concur.\n. Plaintiffs are Tolbert\u2019s heirs and assigns and successors in title, and hold Tolbert\u2019s property rights, including the right to the easement as embodied in the agreements between Tolbert and defendant.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Richard B. Harper for plaintiff-appellees/appellants.", "Wilson, Palmer & Lackey, P.A., by David S. Lackey, for defendant-appellant/appellee." ], "corrections": "", "head_matter": "ALBERT R. TOLBERT, and wife, WILLA C. TOLBERT, Plaintiffs v. COUNTY OF CALDWELL, A Political Subdivision of the State of North Carolina, Defendant\nNo. COA95-486\n(Filed 5 March 1996)\nEminent Domain \u00a7 34 (NCI4th)\u2014 landfill \u2014 closing of road pursuant to governmental regulations \u2014 \u201ctaking\u201d by county\nSince defendant county was the party responsible for the operation of a landfill, the party which executed an agreement giving plaintiffs access to their property across the landfill, and the party which closed the road, defendant was the party which \u201ctook\u201d plaintiffs\u2019 property, and there was no merit to defendant\u2019s contention that it was absolved from any responsibility because it acted pursuant to state and federal regulations.\nAm Jur 2d, Eminent Domain \u00a7\u00a7 157 et seq.\nPlotting or planning in anticipation of improvement as taking or damaging of property affected. 37 ALR3d 127.\nAppeal by plaintiffs and defendant from judgment entered 7 November 1994 in Caldwell County Superior Court by Judge Forrest A. Ferrell. Appeal by defendant from judgment entered 30 September 1994 in Caldwell County Superior Court by Judge Hollis M. Owens, Jr., and order entered 7 November 1994 in Caldwell County Superior Court by Judge Forrest A. Ferrell. Heard in the Court of Appeals 1 February 1996.\nRichard B. Harper for plaintiff-appellees/appellants.\nWilson, Palmer & Lackey, P.A., by David S. Lackey, for defendant-appellant/appellee." }, "file_name": "0653-01", "first_page_order": 687, "last_page_order": 690 }