{ "id": 8302503, "name": "FRANCES L. AUSTIN FAMILY LIMITED PARTNERSHIP and PIEDMONT LAND CONSERVANCY, Plaintiffs v. CITY OF HIGH POINT, Defendant", "name_abbreviation": "Frances L. Austin Family Ltd. Partnership v. City of High Point", "decision_date": "2006-06-06", "docket_number": "No. COA05-1514", "first_page": "753", "last_page": "759", "citations": [ { "type": "official", "cite": "177 N.C. App. 753" } ], "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": "136 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "681-82" } ], "opinion_index": 0 }, { "cite": "262 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566179 ], "year": 1964, "pin_cites": [ { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0169-01" ] }, { "cite": "106 S.E. 138", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1921, "pin_cites": [ { "page": "139" } ], "opinion_index": 0 }, { "cite": "181 N.C. 29", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655070 ], "year": 1921, "pin_cites": [ { "page": "31" } ], "opinion_index": 0, "case_paths": [ "/nc/181/0029-01" ] }, { "cite": "175 S.E.2d 713", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "715" } ], "opinion_index": 0 }, { "cite": "9 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548711 ], "year": 1970, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/nc-app/9/0162-01" ] }, { "cite": "18 S.E.2d 827", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1942, "pin_cites": [ { "page": "829" }, { "page": "829-30" } ], "opinion_index": 0 }, { "cite": "221 N.C. 10", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625568 ], "year": 1942, "pin_cites": [ { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/nc/221/0010-01" ] }, { "cite": "349 S.E.2d 860", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732261, 4737352, 4734837, 4731926, 4740443 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0506-01", "/nc/318/0506-05", "/nc/318/0506-03", "/nc/318/0506-02", "/nc/318/0506-04" ] }, { "cite": "345 S.E.2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "234" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 606", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524648 ], "pin_cites": [ { "page": "609" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0606-01" ] }, { "cite": "90 S.E. 937", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1916, "pin_cites": [ { "page": "939", "parenthetical": "quotation omitted" }, { "page": "939" } ], "opinion_index": 0 }, { "cite": "172 N.C. 774", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11255519 ], "weight": 2, "year": 1916, "pin_cites": [ { "page": "778", "parenthetical": "quotation omitted" }, { "page": "778" } ], "opinion_index": 0, "case_paths": [ "/nc/172/0774-01" ] }, { "cite": "458 U.S. 419", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 636616 ], "weight": 10, "year": 1982, "pin_cites": [ { "page": "421" }, { "page": "873" }, { "page": "428" }, { "page": "877" }, { "page": "441" }, { "page": "886" } ], "opinion_index": 0, "case_paths": [ "/us/458/0419-01" ] }, { "cite": "140 S.E.2d 341", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1965, "pin_cites": [ { "page": "346" } ], "opinion_index": 0 }, { "cite": "263 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572527 ], "year": 1965, "pin_cites": [ { "page": "663" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0656-01" ] }, { "cite": "293 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "107-08" }, { "page": "109" } ], "opinion_index": 0 }, { "cite": "306 N.C. 187", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567947 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "195-96" }, { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0187-01" ] }, { "cite": "543 S.E.2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "848" } ], "opinion_index": 0 }, { "cite": "353 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135972 ], "year": 2001, "pin_cites": [ { "page": "348" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0343-01" ] }, { "cite": "265 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "190" } ], "opinion_index": 0 }, { "cite": "300 N.C. 186", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560050 ], "year": 1980, "pin_cites": [ { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0186-01" ] } ], "analysis": { "cardinality": 714, "char_count": 14949, "ocr_confidence": 0.705, "pagerank": { "raw": 2.2686877611536827e-07, "percentile": 0.7835167224035069 }, "sha256": "042362c2ce166b4910dbc86167f9be67adad3e7c5033d61af57af62b3493a08d", "simhash": "1:7d29259e56f9e601", "word_count": 2396 }, "last_updated": "2023-07-14T22:32:29.259677+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUDSON and STEELMAN concur." ], "parties": [ "FRANCES L. AUSTIN FAMILY LIMITED PARTNERSHIP and PIEDMONT LAND CONSERVANCY, Plaintiffs v. CITY OF HIGH POINT, Defendant" ], "opinions": [ { "text": "TYSON, Judge.\nFrances L. Austin Family Limited Partnership (\u201cAFLP\u201d) and Piedmont Land Conservancy (collectively, \u201cplaintiffs\u201d) appeal from order entered concluding the presence of the City of High Point\u2019s (\u201cdefendant\u201d) former sewer line on its abandoned and reverted sewer easement does not constitute a further taking of AFLP\u2019s property. We affirm.\nI. Background\nAFLP is the owner of approximately 101 acres located in High Point formerly used as a dairy farm. No sewer lines or pipes were located on the property prior to 1963. In 1963, defendant, in consideration for $988.24, obtained an easement from AFLP\u2019s predecessor-in-title for the installation, operation, and maintenance of a sewer line across AFLP\u2019s property.\nOn 17 March 2003, defendant initiated condemnation proceedings for a new sewer pipeline to be placed on AFLP\u2019s property as part of defendant\u2019s Upper Deep River Outfall Project. This condemnation action was resolved by consent judgment entered 18 March 2005. The consent judgment states that a portion of the existing easement on the property \u201creverts to the Grantor or its successor in interest upon completion of construction of the new sanitary sewer line.\u201d\nPursuant to the 1963 easement, defendant has a twenty-foot wide easement for the placement, operation, and maintenance of its sewer line across AFLP\u2019s property. The total area of the 1963 sewer line easement is 67,521.67 square feet. A total area of 55,887.24 square feet of additional permanent sewer line easement was taken in the 2003 Upper Deep River Outfall condemnation proceeding. Portions of the new easement run parallel and overlap with or include portions of the 1963 easement. The Upper Deep River Outfall easement is thirty feet wide. In the consent judgment, defendant also took for temporary construction an additional ten feet on both sides of the thirty foot easement.\nDefendant completed the new sewer line on 1 May 2004. Upon completion of the new sewer line, defendant abandoned 26,503.83 square feet of portions of the 1963 sewer easement. Defendant left approximately 1,520 linear feet of sewer pipe buried in the ground within the abandoned easement. The diameter of the abandoned pipe varies between eighteen and twenty-four inches. This pipe was abandoned when the new sewer line was placed into service and is not being used by defendant for a sewer line or any other purpose.\nPlaintiffs filed suit in Guilford County Superior Court alleging various claims relating to the underground sewer pipe including taking by inverse condemnation. On 12 August 2005, plaintiffs filed a \u201cMotion for Judicial Determination of Issue Other than Compensation\u201d pursuant to N.C. Gen. Stat. \u00a7 40A-47 seeking a ruling from the trial court on whether the continued presence of defendant\u2019s sewer pipe on its abandoned sewer easement constitutes a taking of AFLP\u2019s property requiring defendant to pay just compensation. The trial court reviewed depositions, pleadings, exhibits, and other materials and concluded \u201cthe presence of defendant City of High Point\u2019s unused sewer line on its now abandoned sewer easement... does not constitute a taking of [AFLP\u2019s] property under Chapter 40A of the North Carolina General Statutes.\u201d Plaintiffs appeal.\nII.Issue\nPlaintiffs argue the trial court erred by concluding defendant\u2019s act of leaving its buried sewer pipe on its abandoned sewer easement did not constitute a taking of AFLP\u2019s property for which plaintiffs are entitled to just compensation.\nIII.Standard of Review\n\u201cConclusions of law drawn by the trial court from its findings of fact are reviewable de novo on appeal.\u201d Humphries v. City of Jacksonville, 300 N.C. 186, 187, 265 S.E.2d 189, 190 (1980). Further, \u201c[i]t is well settled that de novo review is ordinarily appropriate in cases where constitutional rights are implicated.\u201d Piedmont Triad Reg\u2019l Water Auth. v. Sumner Hills, Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001).\nIV.Takings and Inverse Condemnation\nThe Fifth Amendment to the United States Constitution provides in pertinent part, \u201cnor shall private property be taken for public use without just compensation.\u201d U.S. Const, amend. V. Article I, Section 19 of the North Carolina Constitution states in part, \u201cNo person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land.\u201d N.C. Const, art. I, \u00a7 19.\nWhile North Carolina does not have an express constitutional provision against the \u201ctaking\u201d or \u201cdamaging\u201d of private property for public use without payment of just compensation, this Court has allowed recovery for a taking on constitutional as well as common law principles. We recognize the fundamental right to just compensation as so grounded in natural law and justice that it is part of the fundamental law of this State, and imposes upon a governmental agency taking private property for public use a correlative duty to make just compensation to the owner of the property taken. This principle is considered in North Carolina as an integral part of \u201cthe law of the land\u201d within the meaning of Article I, Section 19 of our State Constitution. The requirement that just compensation be paid for land taken for a public use is likewise guaranteed by the Fourteenth Amendment to the Federal Constitution.\nLong v. Charlotte, 306 N.C. 187, 195-96, 293 S.E.2d 101, 107-08 (1982).\nIn Charlotte v. Spratt, our Supreme Court discussed the doctrine of inverse condemnation:\nWhere private property is taken for a public purpose by a municipality or other agency having the power of eminent domain under circumstances such that no procedure provided by statute affords an applicable or adequate remedy, the owner, in the exercise of his constitutional rights, may maintain an action to obtain just compensation therefor.\n263 N.C. 656, 663, 140 S.E.2d 341, 346 (1965). An inverse condemnation remedy is provided in this State by statute. N.C. Gen. Stat. 40A-51(a) (2005). Where property has been taken and no complaint containing a declaration of taking has been filed, the owner \u201cmay initiate an action to seek compensation for the taking.\u201d Id. \u201cIn order to recover for inverse condemnation, a plaintiff must show an actual interference with or disturbance of property rights resulting in injuries which are not merely consequential or incidental . . . .\u201d Long, 306 N.C. at 199, 293 S.E.2d at 109.\nIn Loretto v. Teleprompter Manhattan CATV Corp., the United States Supreme Court dealt with a cable television company\u2019s installation of a cable on the plaintiff\u2019s apartment building. 458 U.S. 419, 73 L. Ed. 2d 868 (1982). New York law required a landlord to permit a cable television company to install its cable facilities on his property to provide cable television service to the tenants. Id. at 421, 73 L. Ed. 2d at 873. The Supreme Court answered the question of \u201cwhether a minor but permanent physical occupation of an owner\u2019s property authorized by government constitutes a \u2018taking\u2019 of property for which just compensation is due under the Fifth and Fourteenth Amendments of the Constitution.\u201d Id.\nThe Supreme Court recognized the distinction between cases involving a \u201cpermanent physical occupation\u201d and cases involving governmental action outside a person\u2019s property which results in consequential damages. Id. The Court noted, \u201cA taking has always been found only in the former situation.\u201d Id. at 428, 73 L. Ed. 2d at 877. The Court affirmed \u201cthe traditional rule that a permanent physical occupation of property is a taking.\u201d Id. at 441, 73 L. Ed. 2d at 886.\nV. Analysis\nPlaintiffs argue AFLP is entitled to just compensation because defendant\u2019s act in leaving the buried sewer pipe on its abandoned sewer easement across AFLP\u2019s property constituted a taking. We disagree.\nIn 1963, AFLP\u2019s predecessor-in-interest granted an express sewer easement across the property to defendant for consideration of $988.24. The language of the express easement states the rights were granted to defendant \u201cforever.\u201d However, our Supreme Court has held:\nWhen the purpose, reason, and necessity for an easement cease, within the intent for which it was granted, the easement is extinguished. Hence, if an easement is not granted for all purposes, but for a particular use only, the right continues while the dominant tenement is used for that purpose, and ceases when the specified use ceases.\nR.R. v. Way, 172 N.C. 774, 778, 90 S.E. 937, 939 (1916) (quotation omitted); see also Int. Paper Co. v. Hufham, 81 N.C. App. 606, 609, 345 S.E.2d 231, 234 (\u201cIf the deed conveyed only an easement, Hie estate of the railroad company ceased and terminated when its tracks were removed and the railroad was abandoned[.]\u201d), disc. rev. denied, 318 N.C. 506, 349 S.E.2d 860 (1986).\nThe 1963 easement was created for an express purpose, being \u201ca sewer line across the property of the parties... and for the maintenance and upkeep of said sewer line.\u201d Under our Supreme Court\u2019s precedent, defendant abandoned the easement when it ceased to be used for a sewer line. R.R., 172 N.C. at 778, 90 S.E. at 939. The 18 March 2005 consent order states the abandoned easement \u201creverts\u201d to AFLP upon the completion of the new sewer line.\nWhether or not defendant abandoned portions of the sewer easement is not determinative to the outcome here. Defendant paid AFLP just compensation for the taking. In 1963, defendant paid AFLP\u2019s predecessor-in-title for the right to place its sewer line on AFLP\u2019s property \u201cforever.\u201d AFLP\u2019s predecessor-in-title accepted payment of $988.24 as compensation for any lost value to the property as a result of defendant\u2019s installation and maintenance of the sewer line within its easement. Defendant has agreed, and the parties stipulate that defendant \u201cshall be responsible for any assessment and/or remediation of contamination emanating from abandoned underground sewer lines on the Property\u201d to the extent required by state or federal statutes or federal, state, or local regulations. Defendant has paid AFLP for the burden to its property of the buried sewer line. Plaintiffs are not entitled to be paid twice for that right.\nIn Hildebrand v. Telegraph Co., the plaintiff was paid just compensation for a right-of-way taken by the State for highway purposes. The right-of-way was granted for \u201call purposes for which the State Highway & Public Works Commission is authorized by law to subject said right of way.\u201d 221 N.C. 10, 13, 18 S.E.2d 827, 829 (1942). The State granted the defendant the right to place telephone poles on the State\u2019s right-of-way. The plaintiff claimed she was entitled to compensation for the additional burden on her land. Id. at 14, 18 S.E.2d at 829-30. Our Supreme Court held, \u201cThe plaintiff has been compensated for this additional burden. She may not again recover.\u201d Id. Here, the same reasoning applies against AFLP. Plaintiffs were compensated by defendant for the right to place sewer lines within its sewer easement. \u201cWhere a landowner has granted a right of way over his land, he must look to his contract for compensation, as it cannot be awarded to him in condemnation proceedings, provided the contract is valid....\u201d Feldman v. Gas Pipe Line Corp., 9 N.C. App. 162, 166, 175 S.E.2d 713, 715 (1970).\nDefendant can abandon the easement without further obligation to AFLP to pay compensation or remove the buried pipe. Over eighty-five years ago, our Supreme Court stated, \u201cthe owner of the dominant estate is not required to maintain or repair the easement for the benefit of the servient tenement. He may, ordinarily, abandon it altogether, without infraction of any rights of the servient owner.\u201d Craft v. Lumber Co., 181 N.C. 29, 31, 106 S.E. 138, 139 (1921). Our Supreme Court later reaffirmed this rule and held:\n[I]t is well settled at common law that the owner of the dominant estate may abandon an easement if he sees fit without any act of consent or concurrence on the part of the servient tenant. Although, as a matter of fact, the abandonment may injure the land upon or near which the easement was exercised, it could not constitute an actionable injury at common law, and certainly does not amount to a taking within the meaning of the constitution.\nSnow v. Highway Commission, 262 N.C. 169, 173, 136 S.E.2d 678, 681-82 (1964). Defendant has fully compensated AFLP for its loss in property value due to placing the sewer pipe on AFLP\u2019s property. AFLP is entitled to nothing more than what its predecessors-in-title were paid. AFLP purchased this property with the easement and sewer line in place. The parties reached an agreement on additional damages for the new sewer easement. This assignment of error is overruled.\nVI. Conclusion\nDefendant fully compensated AFLP\u2019s predecessors-in-title for the sewer easement. The trial court did not err by concluding that defendant leaving its buried sewer pipe on its abandoned and reverted sewer easement did not constitute a taking of AFLP\u2019s property. The trial court\u2019s order is affirmed.\nAffirmed.\nJudges HUDSON and STEELMAN concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Wyatt Early Harris Wheeler LLP, by Scott F. Wyatt, for plaintiff's-appellants.", "Womble Carlyle Sandridge & Rice, PLLC, by Gusti W. Frankel and Alison R. Bost, for defendant-appellee.", "Andrew L. Romanet, Jr. and John M. Phelps, II, for amicus curiae North Carolina League of Municipalities." ], "corrections": "", "head_matter": "FRANCES L. AUSTIN FAMILY LIMITED PARTNERSHIP and PIEDMONT LAND CONSERVANCY, Plaintiffs v. CITY OF HIGH POINT, Defendant\nNo. COA05-1514\n(Filed 6 June 2006)\nCities and Towns; Easements\u2014 taking \u2014 presence of unused sewer line on now abandoned sewer easement \u2014 just compensation\nThe presence of defendant city\u2019s former buried sewer line on its abandoned and reverted sewer easement did not constitute a further taking of plaintiff\u2019s property for which plaintiff is entitled to just compensation, because: (1) defendant paid plaintiff just compensation for the taking when in 1963 defendant paid plaintiff\u2019s predecessor-in-title for the right to place its sewer line on plaintiff\u2019s property forever; (2) plaintiff\u2019s predecessor-in-title accepted payment of $988.24 as compensation for any lost value to the property as a result of defendant\u2019s installation and maintenance of the sewer line within its easement, and plaintiff is entitled to nothing more than what its predecessors-in-title were paid when plaintiff purchased the property with the easement and sewer line in place and the parties reached an agreement on additional damages for the new sewer easement; and (3) defendant can abandon the easement without further obligation to plaintiff to pay compensation or remove the buried pipe when the owner of the dominant estate is not required to maintain or repair the easement for the benefit of the servient tenement.\nAppeal by plaintiffs from order entered 6 October 2005 by Judge W. Douglas Albright in Guilford County Superior Court. Heard in the Court of Appeals 18 May 2006.\nWyatt Early Harris Wheeler LLP, by Scott F. Wyatt, for plaintiff's-appellants.\nWomble Carlyle Sandridge & Rice, PLLC, by Gusti W. Frankel and Alison R. Bost, for defendant-appellee.\nAndrew L. Romanet, Jr. and John M. Phelps, II, for amicus curiae North Carolina League of Municipalities." }, "file_name": "0753-01", "first_page_order": 787, "last_page_order": 793 }