{ "id": 8353317, "name": "THE CITY OF CHARLOTTE, a municipal corporation, Plaintiff v. STEVEN F. LONG, and Wife, LORRAINE R. LONG; TRSTE, INC., Trustee; WACHOVIA BANK, N.A., Beneficiary; SPRUILLCO, LTD, Trustee; CAPITAL FACTORS, INC., Beneficiary; and Any Other Parties In Interest Defendants", "name_abbreviation": "City of Charlotte v. Long", "decision_date": "2006-02-07", "docket_number": "No. COA05-283", "first_page": "750", "last_page": "755", "citations": [ { "type": "official", "cite": "175 N.C. App. 750" } ], "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": "237 S.E.2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "855" } ], "opinion_index": 0 }, { "cite": "34 N.C. App. 266", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548325 ], "year": 1977, "pin_cites": [ { "page": "268" } ], "opinion_index": 0, "case_paths": [ "/nc-app/34/0266-01" ] }, { "cite": "302 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "229", "parenthetical": "quoting Bd. of Transp. v. Brown, 34 N.C. App. 266, 268, 237 S.E.2d 854, 855 (1977)" } ], "opinion_index": 0 }, { "cite": "308 N.C. 367", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707779 ], "year": 1983, "pin_cites": [ { "page": "370", "parenthetical": "quoting Bd. of Transp. v. Brown, 34 N.C. App. 266, 268, 237 S.E.2d 854, 855 (1977)" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0367-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 136-112", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(1)" } ], "opinion_index": 0 }, { "cite": "338 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1986, "pin_cites": [ { "page": "799", "parenthetical": "emphasis added" }, { "page": "796" }, { "page": "800", "parenthetical": "emphasis added" }, { "page": "800", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 103", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519505 ], "year": 1986, "pin_cites": [ { "page": "110", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0103-01" ] }, { "cite": "293 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "109" }, { "parenthetical": "emphasis added" } ], "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": "181 S.E.2d 466", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "468" } ], "opinion_index": 0 }, { "cite": "279 N.C. 188", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566338 ], "year": 1971, "pin_cites": [ { "page": "190-91" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0188-01" ] }, { "cite": "434 S.E.2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "667" }, { "page": "667" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 120", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520396 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "122" }, { "page": "122" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0120-01" ] }, { "cite": "140 S.E.2d 341", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "346", "parenthetical": "internal citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "263 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572527 ], "year": 1965, "pin_cites": [ { "page": "662-63", "parenthetical": "internal citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0656-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 136-108", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 136-103", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 589, "char_count": 12503, "ocr_confidence": 0.724, "pagerank": { "raw": 4.7817273071113374e-08, "percentile": 0.3004528449342027 }, "sha256": "93efb1eb83048b085b6f598fce18093db2761d685d6a0f019fb4017374361bb2", "simhash": "1:6249891a52b65f16", "word_count": 1946 }, "last_updated": "2023-07-14T22:29:36.119960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUDSON and BRYANT concur." ], "parties": [ "THE CITY OF CHARLOTTE, a municipal corporation, Plaintiff v. STEVEN F. LONG, and Wife, LORRAINE R. LONG; TRSTE, INC., Trustee; WACHOVIA BANK, N.A., Beneficiary; SPRUILLCO, LTD, Trustee; CAPITAL FACTORS, INC., Beneficiary; and Any Other Parties In Interest Defendants" ], "opinions": [ { "text": "CALABRIA, Judge.\nSteven and Lorraine Long (\u201cLong\u201d), along with TRSTE, Inc., trustee, and Wachovia Bank, N.A., (known collectively as \u201cdefendants\u201d), appeal the 12 November 2004 order concluding the City of Charlotte\u2019s (\u201cplaintiff\u2019) installation of a new septic system including pump tank (\u201cpump\u201d), 400 feet \u00f3f a 2-inch pipe (\u201cpipe\u201d), and new leach field (\u201cfield\u201d) was not an additional taking of defendants\u2019 property for which defendants are entitled to compensation. We affirm.\nOn 12 August 2003, pursuant to N.C. Gen. Stat. \u00a7 136-103, plaintiff instituted an eminent domain action by filing a complaint, declaration of taking, and notice of deposit of $6,200.00 as either full compensation or as a credit against just compensation. The plaintiff acquired a permanent sanitary sewer easement and temporary construction easement across defendants\u2019 property to install both an 8-inch gravity sewer line and a 16-inch pressurized sewer force main for a development of homes.\nThe permanent easement ran through defendants\u2019 existing leach field rendering their gravity septic waste disposal system (\u201cdisposal system\u201d) inoperable. Due to this consequence, plaintiff hired a licensed soil scientist to determine suitable locations for the installation of a replacement field for defendants\u2019 disposal system. The defendants requested installation of a new field in a wooded area 400 feet from the back of their home. Because the new field, measuring approximately one and one-half times larger than the original, was at a higher elevation than the defendants\u2019 home, plaintiff had to install a pump out of defendants\u2019 front yard to remove waste from the home to the new field. In an area between the newly installed pump and field, the plaintiff installed the pipe. The pump, operated by electricity, was connected to the defendants\u2019 electric panel. Plaintiff contracted with a third party to perform this work and paid all costs associated with the installation of the \u201cnew\u201d septic waste disposal system.\nOn 20 July 2004, defendant filed an answer, responded to the declaration of taking and notice of deposit, and counterclaimed for inverse condemnation. Specifically, defendant alleged that in addition to the permanent sewer easement and temporary construction easement, plaintiff appropriated portions of defendants\u2019 property outside the easements for the pump, pipe and field. On 28 July 2004, plaintiff replied to the counterclaim and denied appropriating any further property of defendants.\nOn 23 September 2004, defendants filed a motion pursuant to N.C. Gen. Stat. \u00a7 136-108 to ascertain whether plaintiff had taken property outside the easements. On 12 November 2004, the trial court determined plaintiff\u2019s installation of the pump, pipe, and field outside the permanent and temporary easements failed to constitute an additional taking of defendants\u2019 property for which they were entitled compensation. In addition, in ascertaining just compensation due defendants for the sewer and construction easements, the trial court concluded the jury may consider the effect of this taking on defendants\u2019 use of their property, specifically the condition of their inoperable system and its replacement. Defendants appeal.\nDefendants first argue the trial court erred in concluding the plaintiff\u2019s installation of the pump, pipe, and field did not constitute an additional taking. Defendants contend such an appropriation of land constituted inverse condemnation since the damage to the land outside the easements was ineluctably tied to the construction of both the sewer force main and sewer line. We disagree.\nInverse condemnation, \u201ca cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency,\u201d Charlotte v. Spratt, 263 N.C. 656, 662-63, 140 S.E.2d 341, 346 (1965) (internal citation and quotation marks omitted), requires the following: \u201c(1) a taking (2) of private property (3) for a public use or purpose.\u201d Adams Outdoor Advertising of Charlotte v. N.C. Dep\u2019t of Transp., 112 N.C. App. 120, 122, 434 S.E.2d 666, 667 (1993). A taking, or \u201centering upon private property .. . devoting it to a public use, or . . . informally appropriating or injuriously affecting it in such a way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof,\u201d Ledford v. N. C. State Highway Comm\u2019n, 279 N.C. 188, 190-91, 181 S.E.2d 466, 468 (1971), \u201crequires \u2018substantial interference with elemental rights growing out of the ownership of the property.\u2019 \u201d Adams, 112 N.C. App. at 122, 434 S.E.2d at 667 (quoting Long v. City of Charlotte, 306 N.C. 187, 198-99, 293 S.E.2d 101, 109 (1982)). Importantly, in order to illustrate a taking \u201c[a] plaintiff must show an actual interference with or disturbance of property rights resulting in injuries which are not merely consequential or incidental. Id. (emphasis added).\n\u201c[A] municipality is solely liable for the damages that inevitably or necessarily flow from the construction of an improvement. ...\u201d City of Winston-Salem v. Ferrell, 79 N.C. App. 103, 110, 338 S.E.2d 794, 799 (1986) (emphasis added). Thus, \u201c[d]amages to land outside the easements which inevitably or necessarily flow from the construction of the [improvement] result in an appropriation of land for public use [to which] [s]uch damages are embraced within just compensation to which defendant landowners are entitled.\u201d Id.\nFerrell is instructive in determining what is and what is not considered \u2018inevitably and necessarily\u2019 tied to the construction of an improvement and thus compensable as a taking under inverse condemnation. In Ferrell, a contractor entered defendant\u2019s property and built a temporary roadway outside the already acquired easements so as to haul in supplies for the project. Id. at 105, 338 S.E.2d at 796. The same contractor, also outside of the prescribed easements, used another portion of defendant\u2019s property as a \u201cstaging area\u201d to store pipes and equipment. Id. This Court determined that because \u201cthe contractor\u2019s use of the roadway over defendant\u2019s property was essential to provide access to the City\u2019s sewer outfall construction site,. .. such use thus necessarily flowed from the construction of the improvement. ...\u201d Id. at 112, 338 S.E.2d at 800 (emphasis added). Conversely, \u201c[u]nlike the evidence regarding the contractor\u2019s use of the roadway, the evidence regarding its use of the staging area does not show that such use was necessary to complete the project.\u201d Id. at 113, 338 S.E.2d at 800 (emphasis added). This Court holds plaintiff\u2019s conduct clearly fails to amount to an additional taking and plaintiff\u2019s action in the instant case was more like the staging area in Ferrell, and less like the roadway.\nPlaintiff\u2019s installation of the pump, pipe, and field on defendants\u2019 property did not necessarily flow from construction of the improvement, here the 8-inch sewer line and 16-inch sewer main force. The installation was not part of the improvement project, but rather the plaintiff\u2019s subsequent and separate effort to accommodate defendants\u2019 need for a new septic system. In fact, defendants consented to the installation of the new pump, pipe, and field and plaintiff reciprocated by expending $16,000.00 to cover the cost. Defendants incorrectly assert a separate taking has occurred. This assignment of error is overruled.\nDefendants next argue the trial court erred in holding the jury may consider the effect of the \u201cadditional taking\u201d on defendants\u2019 use of their residence. Specifically, defendants contend the jury must consider the condition of their inoperable gravity septic system and the replacement system installed by plaintiff since plaintiff\u2019s actions constituted inverse condemnation. We disagree.\nN.C. Gen. Stat. \u00a7 136-112(1) (2005) provides as the proper measure of damages for inverse condemnation \u201c[w]here only a part of a tract is taken, the measure of damages for said taking shall be the difference between the fair market value of the entire tract immediately prior to said taking and the fair market value of the remainder immediately after said taking.. . .\u201d (Emphasis added). Furthermore, \u201c \u2018[t]he fair market value of the remainder immediately after the taking contemplates the project in its completed state and any damage to the remainder due to the user [sic] to which the part appropriated may, or probably will', be put.\u2019 \u201d Dep\u2019t. of Transp. v. Bragg, 308 N.C. 367, 370, 302 S.E.2d 227, 229 (1983) (quoting Bd. of Transp. v. Brown, 34 N.C. App. 266, 268, 237 S.E.2d 854, 855 (1977)).\nIn the instant case, a judge or jury determines the amount of just compensation due defendants by calculating the difference between the fair market value of defendants\u2019 entire tract prior to the taking of both the permanent sanitary sewer easement and the temporary construction easement, and the fair market value of the remainder of defendants\u2019 property immediately after both the taking of these easements and the completion of the project itself. This calculation must include any potential damage caused to the remainder of defendants\u2019 property due to the use of the easements. The court determined the amount of just compensation due defendants by measuring the damages for the taking of the sewer and construction easements, not the installation of the new septic system comprised of the pump, pipe, and field. In addition, we note defendants argue that an additional taking occurred and the effect of that additional taking upon the fair market value of their property must then be calculated. This premise was expressly refuted above as no additional taking occurred. This assignment of error is overruled.\nDefendants\u2019 remaining assignment of error is that the trial court erred in finding that defendants alone would have to bear the electrical as well as any maintenance and repair costs to operate the newly installed pump. We disagree. Here, plaintiff expended $16,000.00 to install a new pump, pipe, and field solely for the Longs\u2019 personal benefit. The plaintiff retained no ownership rights in this newly installed septic system. The only individuals directly benefitting from this new septic system are the Longs. Thus, any future electrical, maintenance or repair costs must be borne by the actual owners of this new septic system, the Longs. This assignment of error is overruled.\nAffirmed.\nJudges HUDSON and BRYANT concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Office of the City Attorney, by Assistant City Attorney Catherine C. Williamson, for plaintiff-appellee.", "The Odom Firm, PLLC, by T. LaFontine Odom, for defendants-appellants." ], "corrections": "", "head_matter": "THE CITY OF CHARLOTTE, a municipal corporation, Plaintiff v. STEVEN F. LONG, and Wife, LORRAINE R. LONG; TRSTE, INC., Trustee; WACHOVIA BANK, N.A., Beneficiary; SPRUILLCO, LTD, Trustee; CAPITAL FACTORS, INC., Beneficiary; and Any Other Parties In Interest Defendants\nNo. COA05-283\n(Filed 7 February 2006)\n1. Eminent Domain\u2014 takings \u2014 sewer line easement \u2014 replacement system \u2014 not a separate taking\nThere was'not a separate taking in a sewer project where plaintiff installed a new leach field, pipe and pump to replace a septic system rendered inoperable by a new permanent sewer easement (the original taking). The installation of the new septic system did not necessarily flow from construction of the improvement, but was an effort to accommodate defendants\u2019 need for a new system, to which defendants consented.\n2. Eminent Domain\u2014 takings \u2014 sewer line easement \u2014 replacement system \u2014 not an additional taking \u2014 instruction on damages\nThere was no additional taking in a sewer project where plaintiffs built a new septic system to replace a system rendered inoperable by the new sewer line easement, and no error in the court\u2019s instruction that the jury could (rather than must) consider the condition of the old and new systems.\n3. Easements\u2014 sewer line \u2014 replacement system \u2014 costs born by owners\nThe owners must bear any costs in maintaining and operating a new pump-based septic system installed to replace a gravity system rendered inoperable by a sewer line easement. Plaintiff installed the new system for the owners\u2019 personal benefit, retained no ownership in the new system, and the owners were the only ones directly benefitting.\nAppeal by defendants from order entered 12 November 2004 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 12 October 2005.\nOffice of the City Attorney, by Assistant City Attorney Catherine C. Williamson, for plaintiff-appellee.\nThe Odom Firm, PLLC, by T. LaFontine Odom, for defendants-appellants." }, "file_name": "0750-01", "first_page_order": 784, "last_page_order": 789 }