{ "id": 4170128, "name": "THOMAS R. PEACH and wife, SUSAN M. PEACH, Plaintiffs v. CITY OF HIGH POINT and BREECE ENTERPRISES, INC., Defendants", "name_abbreviation": "Peach v. City of High Point", "decision_date": "2009-09-01", "docket_number": "No. COA08-1174", "first_page": "359", "last_page": "375", "citations": [ { "type": "official", "cite": "199 N.C. App. 359" } ], "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": "625 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634958 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "164", "parenthetical": "alterations in original" }, { "page": "164" }, { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/se2d/625/0161-01" ] }, { "cite": "631 S.E.2d 143", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636075 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/631/0143-01" ] }, { "cite": "630 S.E.2d 37", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635930 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "39" }, { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/se2d/630/0037-01" ] }, { "cite": "649 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639168 ], "year": 2007, "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0382-01" ] }, { "cite": "175 N.C. 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App.", "case_ids": [ 8519505 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "108" }, { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0103-01" ] }, { "cite": "273 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "464-65" } ], "opinion_index": 0 }, { "cite": "301 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569522, 8569653, 8569558, 8569688, 8569628 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0531-01", "/nc/301/0531-04", "/nc/301/0531-02", "/nc/301/0531-05", "/nc/301/0531-03" ] }, { "cite": "269 S.E.2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1980, "pin_cites": [ { "page": "667" }, { "page": "664" }, { "page": "667" }, { "page": "664" } ], "opinion_index": 0 }, { "cite": "48 N.C. App. 463", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551223 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "469" }, { "page": "464-65" } ], "opinion_index": 0, "case_paths": [ "/nc-app/48/0463-01" ] }, { "cite": "372 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1988, "pin_cites": [ { "page": "743" }, { "page": "743", "parenthetical": "citations omitted" }, { "page": "743" }, { "page": "742" }, { "page": "743" }, { "page": "744" }, { "page": "742" }, { "page": "744" }, { "page": "743-44" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 570", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526229 ], "weight": 5, "year": 1988, "pin_cites": [ { "page": "572" }, { "page": "572" }, { "page": "572" }, { "page": "570" }, { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0570-01" ] }, { "cite": "208 S.E.2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "668", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "285 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569803 ], "year": 1974, "pin_cites": [ { "page": "727", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0724-01" ] }, { "cite": "361 N.C. 519", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739573 ], "year": 2007, "pin_cites": [ { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0519-01" ] }, { "cite": "534 S.E.2d 660", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "664" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 778", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9497849 ], "year": 2000, "pin_cites": [ { "page": "784-85" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0778-01" ] }, { "cite": "345 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4773046 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0321-01" ] }, { "cite": "330 S.E.2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "247" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524742 ], "year": 1985, "pin_cites": [ { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0001-01" ] }, { "cite": "458 S.E.2d 187", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "340 N.C. 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790083, 790182, 790069, 790070, 790172 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/340/0359-05", "/nc/340/0359-02", "/nc/340/0359-01", "/nc/340/0359-03", "/nc/340/0359-04" ] }, { "cite": "454 S.E.2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "828", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c)(1990)" }, { "page": "828" }, { "page": "829" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 178", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917278 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "180", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c)(1990)" }, { "page": "181" }, { "page": "183" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0178-01" ] } ], "analysis": { "cardinality": 1329, "char_count": 42261, "ocr_confidence": 0.75, "pagerank": { "raw": 5.1308809910322675e-08, "percentile": 0.32418897781299216 }, "sha256": "f6611e846ab5eb4d56202f980fdf4e30d1e183d063e1bfa63a7b4a7b2263f8d2", "simhash": "1:1b1a15dee45f0c54", "word_count": 6884 }, "last_updated": "2023-07-14T20:19:28.879345+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and HUNTER, Robert N., Jr. concur." ], "parties": [ "THOMAS R. PEACH and wife, SUSAN M. PEACH, Plaintiffs v. CITY OF HIGH POINT and BREECE ENTERPRISES, INC., Defendants" ], "opinions": [ { "text": "HUNTER, Robert C., Judge.\nOn 1 November 2007, Judge Catherine C. Eagles entered an order, which, inter alia, granted summary judgment in favor of the City of High Point (the \u201cCity\u201d or \u201cdefendant\u201d) and dismissed Thomas R. and Susan M. Peach\u2019s (\u201cplaintiffs\u201d) inverse condemnation claim with prejudice based on the running of the statute of limitations. On 3 March 2008, plaintiffs\u2019 appeal was dismissed by the trial court due to their counsel\u2019s failure to file their notice of appeal in accordance with N.C.R. App. P. 3. On 21 May 2008, plaintiffs petitioned this Court for writ of certiorari to review the 1 November 2007 order. On 30 May 2008, this Court allowed said petition, but stated: \u201cReview shall be limited to whether plaintiffs\u2019s [sic] claim against the City of High Point for inverse condemnation is barred by the applicable statue [sic] of limitations.\u201d Accordingly, this is the sole issue before us on appeal. After careful review, we reverse and remand.\nI. Standard of Review\nSummary judgment shall be rendered \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d A defendant who moves for summary judgment assumes the burden of positively and clearly showing that there is no genuine issue as to any material fact and that he or she is entitled to judgment as a matter of law.\nJames v. Clark, 118 N.C. App. 178, 180, 454 S.E.2d 826, 828 (1995) (quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c)(1990)), disc, review denied, 340 N.C. 359, 458 S.E.2d 187 (1985). \u201cA defendant may meet this burden by (1) proving that an essential element of the plaintiff\u2019s claim is nonexistent, or (2) showing through discovery that plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that plaintiff cannot surmount an affirmative defense which would bar the claim.\u201d Watts v. Cumberland County Hosp. System, 75 N.C. App. 1, 6, 330 S.E.2d 242, 247 (1985), reversed on other grounds, 317 N.C. 321, 345 S.E.2d 201 (1986). \u201cIn passing upon a motion for summary judgment, all materials filed in support or opposition to the motion must be viewed in the light most favorable to the party opposing the summary judgment and that party is entitled to the benefit of all inferences in his favor which may be reasonably drawn from that material.\u201d James, 118 N.C. App. at 181, 454 S.E.2d at 828. \u201cOnce the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.\u201d Gaunt v. Pittaway, 139 N.C. App. 778, 784-85, 534 S.E.2d 660, 664 (2000). Our standard of review is de novo. Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007).\nII. Factual Background\nWhen viewed in the light most favorable to plaintiffs, the forecast of evidence in the record tends to show the following facts and circumstances. Since 1983, plaintiffs have owned a residence located at 1633 North Hamilton Street in High Point, which is served by defendant\u2019s sewage system. In the 1990s, defendant decided to upgrade its sewage system, and in August 1999, Breece Enterprises, Inc. (\u201cBreece\u201d) was the successful bidder for defendant\u2019s upgrade project, titled \u201c \u2018Water and Sewer Improvements 1999\u2019 \u201d (the \u201cOverall Project\u201d). Prior to beginning the Overall Project, defendant provided Breece with \u201csealed engineering plans\u201d from defendant\u2019s Central Engineering Department, which subdivided the Overall Project into geographical regions. The portion of the Overall Project that implicated plaintiffs\u2019 property was referred to as the \u201cDayton Street Outfall Project\u201d (the \u201cDSO Project\u201d).\nThe DSO Project primarily involved the replacement of the old outfall line (the \u201cold outfall\u201d), which was located in plaintiffs\u2019 neighborhood, with a new outfall line (the \u201cnew outfall\u201d). Outfall lines are sewer lines that carry wastewater and sewage from main sewer lines to wastewater treatment facilities. Defendant\u2019s residential sewage system typically works as follows: (1) a residence is connected to a main sewer line, which is located in the street in front of the residence and is the exit point for the residence\u2019s wastewater; and (2) the main sewer line is connected to an outfall line, which carries the wastewater to a treatment facility. At some point in 1999, defendant approached plaintiffs and told them that: their residence was located above part of the old outfall in an easement (the \u201cold easement\u201d); the City planned on replacing the old outfall with the new outfall; and the City could condemn their property unless the City was permitted to run the new outfall through plaintiffs\u2019 yard. It is undisputed that this is the first time that plaintiffs learned about the presence of the old outfall and the old easement. On 23 May 2000, plaintiffs granted defendant the new easement, which was described as a permanent and temporary construction easement \u201cto construct, repair, maintain, inspect, operate, replace, enlarge and protect the sewer lines and pipes, and for any other purpose useful or necessary for the proper and adequate functioning of the [City\u2019s] sewer system,\u201d in exchange for $1,000.00.\nPlaintiffs\u2019 home was built sometime in the late 1920s. The parties agree that the old outfall was placed on plaintiffs\u2019 property prior to the home\u2019s construction. At some point, plaintiffs\u2019 residence was directly connected to the old outfall, which functioned as a main line, i.e., served as the exit point for the wastewater that exited their home. Plaintiffs assert that defendant installed the old outfall and connected their residence to it, a fact which defendant disputes, and at the summary judgment hearing, plaintiffs\u2019 counsel conceded that plaintiffs had no evidence as to who installed the old outfall or connected plaintiffs\u2019 home to it. However, it is undisputed that neither the presence of the old outfall nor the old easement were platted or recorded and that defendant had been using the old outfall as part of its sewer system for decades until late 2000 or early 2001. In the 1940s or 1950s, defendant installed a main sewer line (the \u201cmain line\u201d) down North Hamilton Street. The main line has a connection for plaintiffs\u2019 house; however, when the main line was installed, plaintiffs\u2019 residence was not connected to it and remained connected to the old outfall. Plaintiffs contend that when defendant installed the main line, it decided to leave plaintiffs\u2019 home connected to the old outfall and neglected to make note of this fact. Defendant claims that the City had no knowledge that plaintiffs\u2019 home was directly connected to the old outfall until early May 2002.\nDefendant\u2019s plans for the DSO Project, which are dated 4 March 1999, indicate that Breece was to remove the majority of the old outfall and replace it with the new outfall; however, a portion of the old outfall, including approximately 30 feet running beneath plaintiffs\u2019 property, was to be abandoned, filled with flowable fill concrete, and capped. In addition, defendant planned to abandon the old easement. According to Leon Adams (\u201cMr. Adams\u201d), who was employed with the City\u2019s Engineering Services Department at the time the DSO Project was undertaken, the old outfall was abandoned in December 2000 or January 2001, with the new outfall being connected to the City\u2019s sewer system in its place. Counsel for Breece admitted that Breece did not fill the abandoned portion of the old outfall with flowable fill and cap it at the time the old outfall was abandoned.\nApproximately one month after the new outfall was installed, a pervasive, noxious odor began to emanate from plaintiffs\u2019 yard and through their basement, and plaintiffs telephoned defendant\u2019s call center to complain about said odor and about their drains backing up. In late April or early May of 2002, plaintiffs learned that their residence was connected to the old outfall instead of the main line. In May 2002, at the City\u2019s direction, Breece connected plaintiffs\u2019 home to the new outfall and filled and capped the old outfall.\nBy this time, however, wastewater had been exiting from plaintiffs\u2019 home and from at least one other residence into the old outfall for approximately 18 months, and because the old outfall was no longer tied into defendant\u2019s sewage system, fecal matter, bacteria, mold, ammonia, nitrogen, and other waste had been emanating from the old line, which saturated and contaminated the soil in plaintiffs\u2019 yard and overflowed into plaintiffs\u2019 basement and a storm-water runoff creek behind their home. At some point thereafter, plaintiffs\u2019 home was appraised as being worth $0.00.\nAdditional facts necessary to an understanding of this case are set out in the opinion below.\nIII. Statute of Limitation\nWhether a cause of action is barred by a statute of limitation is a mixed question of law and fact, and where the facts are admitted or established, the trial court may sustain the plea to dismiss as a matter of law. Where, however, the evidence is sufficient to support an inference that the cause of action is not barred, the issue is for the jury.\nLittle v. Rose, 285 N.C. 724, 727, 208 S.E.2d 666, 668 (1974) (citations omitted). In determining whether a cause of action is barred by the statute of limitations, courts must determine the applicable limitations period and the date of accrual of that action. See, e.g., James, 118 N.C. App. at 183, 454 S.E.2d at 829. The applicable statute of limitations for an inverse condemnation action is contained in N.C. Gen. Stat. \u00a7 40A-51 (2007), which provides in pertinent part that, such an \u201caction may 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 occur later.\u201d N.C. Gen. Stat. \u00a7 40A-51(a) (emphasis added). \u201c[P]laintiffs have the burden of showing their actions were filed within the statutory period.\u201d McAdoo v. City of Greensboro, 91 N.C. App. 570, 572, 372 S.E.2d 742, 743 (1988).\nHere, the parties agree that in order for plaintiffs\u2019 inverse condemnation claim to be timely, the evidentiary forecast must tend to show that said claim began to accrue on or subsequent to 9 December 2001, as plaintiffs filed their initial complaint on 9 December 2003. Plaintiffs assert that the evidentiary forecast before the trial court demonstrated that genuine issues of material fact exist as to: (1) when the \u201ctaking\u201d occurred; and (2) when the \u201cproject involving the taking,\u201d i.e., the DSO Project, was completed. N.C. Gen. \u00a7 40A-51(a). Defendant contends that plaintiffs\u2019 claim is really a negligence claim based on the overflow of plaintiffs\u2019 sewage into the old outfall and that plaintiffs can only recover in negligence. Defendant further contends that even if plaintiffs\u2019 claim is an inverse condemnation claim, said claim conclusively began accruing prior to 9 December 2001 and is barred by the statute of limitations as a matter of law. As discussed infra, we agree with plaintiffs.\nA. Negligence or Inverse Condemnation Claim\nIn support of defendant\u2019s argument that plaintiffs\u2019 claim is essentially a negligence claim and that plaintiffs were exclusively limited to bringing a claim for negligence, defendant cites this Court\u2019s decision in Ward v. City of Charlotte, 48 N.C. App. 463, 469, 269 S.E.2d 663, 667, disc, review denied, 301 N.C. 531, 273 S.E.2d 463 (1980), where this Court held, \u201cthat the sole basis of municipal liability for damages caused by the overflow of a sewerage system is negligence].]\u201d As discussed infra, we do not believe that Ward limits plaintiffs\u2019 claim to negligence and conclude that plaintiffs\u2019 claim can be properly classified and brought as an inverse condemnation claim.\nIn Ward, the plaintiffs filed claims for: (1) negligence, based on the City of Charlotte\u2019s (the \u201cCity\u201d) purported \u201cfailure [to] properly . . . inspect, maintain, repair and keep unobstructed the sewer line serving [the plaintiffs\u2019] home\u201d; (2) breach of a continuing contract under which the City agreed to carry sewage away from the plaintiffs\u2019 home in exchange for monthly payments; (3) breach of an implied warranty that the City\u2019s sewage system was fit for its intended purpose; and (4) trespass on the case. Id. 464-65, 269 S.E.2d at 664. In rejecting the latter three causes of action and adopting \u201cthe prevailing rule that the' sole basis of municipal liability for damages caused by the overflow of a sewerage system is negligence,\u201d this Court emphasized that \u201c[t]he application of any one of [these actions] to [the specific case before the Court] would effectively make a municipality an absolute insurer of the condition of its sewerage system^ which the Court] decline[d] to do.\u201d Id. at 469, 269 S.E.2d at 667. In other words, this Court was concerned about the larger ramifications of affording the plaintiffs a right to relief based on contract or additional tort principles. The plaintiffs in Ward did not bring an inverse condemnation claim and that case was decided prior to the enactment of N.C. Gen. Stat. \u00a7 40A-51, which provides a statutory \u201cinverse condemnation remedy.\u201d City of Winston-Salem v. Ferrell, 79 N.C. App. 103, 108, 338 S.E.2d 794, 798 (1986). As such, whether a plaintiff can recover for inverse condemnation based on an overall, general loss of property value was not before this Court in Ward; rather, the damages that the plaintiffs sought were for particularized and repairable damages to their home, purportedly caused by a backup in the sewer line that served their home. Ward, 48 N.C. App. at 464-65, 269 S.E.2d at 664.\nThis Court has stated that: \u201cInverse condemnation is simply a device to force a governmental body to exercise its power of condemnation, even though it may have no desire to do so.\u201d Smith v. City of Charlotte, 79 N.C. App. 517, 521, 339 S.E.2d 844, 847 (1986).\nAn action in inverse condemnation must show (1) a taking (2) of private property (3) for a public use or purpose. 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 A plaintiff must show an actual interference with or disturbance of property rights resulting in injuries which are not merely consequential or incidental.\nAdams Outdoor Advertising v. N.C. Dept. of Transportation, 112 N.C. App. 120, 122, 434 S.E.2d 666, 667 (1993) (internal citations omitted) (quoting Long v. City of Charlotte, 306 N.C. 187, 198-99, 293 S.E.2d 101, 109 (1982)).\nIn contrast to the plaintiffs in Ward, here, plaintiffs assert that the damages to their property are generalized and not repairable, i.e., that a reduction in the market value of their property occurred. Essentially, plaintiffs contend that when defendant updated its sewage system on North Hamilton Street, eliminated the old outfall from said system, and failed to fill and cap the old outfall for approximately 18 months, defendant created a situation in which the continuous flow of wastewater from plaintiffs\u2019 residence and from their neighbors\u2019 residence: (1) entered into the old outfall; (2) both exited the uncapped ends of and seeped through cracks in the old outfall onto their property; and (3) turned their property into a waste lagoon, rendering it worthless. Plaintiffs assert that this .constituted substantial interference with their property rights and resulted in injuries that were not consequential or merely incidental. We agree.\nBecause an inverse condemnation claim was not before this Court in Ward, that case was decided prior to the enactment of N.C. Gen. Stat. \u00a7 40A-51, and plaintiffs\u2019 claim is for generalized loss of value of their property, we do not believe that Ward limits plaintiffs to a cause of action for negligence. See Howell v. City of Lumberton, 144 N.C. App. 695, 701-02, 548 S.E.2d 835, 839 (2001) (holding that where a plaintiff \u201cis not seeking to recover for the general loss of value to her property due to the \u2018continual and ongoing effects of the location of [a storm drain] pipe\u2019 \u201d located in an easement on her property, but rather for \u201cspecific damage to her house,\u201d a \u201cplaintiff has legitimately characterized her claim as an action in negligence\u201d and \u201cN.C. Gen. Stat. \u00a7 40A-51[, the inverse condemnation statute,] does not preempt that negligence action.\u201d). Also, in accordance with the law of inverse condemnation cited above, we believe that plaintiffs\u2019 claim can be properly classified as one for inverse condemnation, and that the earliest point at which it can be fairly argued that a \u201ctaking\u201d occurred here, is when defendant eliminated the old outfall from its sewage system, which allowed for the process via which plaintiffs\u2019 property was substantially damaged to occur.\nB \u201cTaking\u201d\nPlaintiffs contend genuine issues of material fact exist as to when the \u201ctaking\u201d occurred here, and consequently, that the trial court erred in granting summary judgment in defendant\u2019s favor based on the statute of limitations. Defendant asserts that no genuine issue of material fact exists, that any taking conclusively occurred prior to 9 December 2001, and that plaintiffs\u2019 inverse condemnation claim is barred by the statute of limitations as a mater of law. As discussed infra, we agree with plaintiffs.\nDefendant contends that if there was a taking here, it occurred when the old easement was acquired and the old outfall was installed on plaintiffs\u2019 property, which was prior to 1926. In support, defendant cites Central Carolina Developers, Inc. v. Moore Water & Sewer Auth., 148 N.C. App. 564, 559 S.E.2d 230 (2002). Plaintiffs argue that that case is distinguishable and does not establish that- the \u201ctaking\u201d here conclusively occurred when the old outfall was installed and the old easement was acquired. We agree.\nIn Central Carolina Developers, the plaintiffs asserted that the mere presence of a sewer pipe, which ran across their lot, was the taking, and the damages that the plaintiff asserted, i.e., being barred from building a residence, were strictly due to the presence of said pipe. Id. at 565, 559 S.E.2d at 231. Here, plaintiffs do not allege that the presence of the old outfall was the taking. Rather, they contend that by eliminating the old outfall from its sewage system, defendant created a condition in which wastewater repeatedly exited plaintiffs\u2019 home and their neighbors\u2019 home and collected on plaintiffs\u2019 property, and that the damage from this process is what constitutes the taking. Consequently, we do not think that Central Carolina Developers controls the outcome here.\nNext, in Frances L. Austin Family Ltd. P\u2019ship v. City of High Point, 177 N.C. App. 753, 630 S.E.2d 37 (2006), a case which neither party cites, the plaintiffs argued that the defendant\u2019s \u201cact of leaving [the defendant\u2019s] buried sewer pipe on [the defendant\u2019s] abandoned sewer easement\u201d constituted a compensable taking. Id. at 755, 630 S.E.2d at 39. This Court disagreed. Because: (1) the defendant had paid the plaintiff for a new easement to install the new pipe; (2) the defendant had paid the plaintiff\u2019s predecessor-in-title for the right to place the old sewer line on the property \u201c \u2018forever\u2019 \u201d; and (3) the defendant agreed and the parties stipulated that the defendant would be \u201c\u2018responsible for any assessment and/or remediation of contamination emanating from abandoned underground sewer lines on the [p]roperty[,]\u2019 to the extent required by state or federal statutes or federal, state, or local regulations [,]\u201d this Court concluded that the defendant had already paid the plaintiff for the burden the buried sewer line posed to its property and that the plaintiff was not entitled to be paid twice for that right. Id. at 757-58, 630 S.E.2d at 40.\nIn the instant case, there is no evidence that defendant or anyone else paid plaintiffs\u2019 predecessor-in-interest any compensation for the burden the old outfall posed to the property or for the old easement, nor does there appear to be any prior agreement describing the old easement or its terms. Also, there is no evidence in the record that the parties agreed that defendant would abandon the old outfall and that it would revert back to plaintiffs or that defendant would be responsible for any contamination emanating from it. However, as stated supra, it is undisputed that defendant had been utilizing both the old outfall and the old easement as part of its sewer system for decades. Consequently, we do not think the above case controls the outcome here.\nPlaintiffs list eight possible dates on which they contend a \u201ctaking\u201d could have occurred here. However, they argue that 26 April 2002, which is the date plaintiffs assert they first learned that their residence was connected to the old outfall, is the \u201cmost logical date\u201d on which to determine the taking occurred because it is the earliest point at which they reasonably could have known of the damage to their property. In response, defendant contends that, under North Carolina law, it does not matter when a plaintiff becomes aware of the act constituting the alleged taking because the statute of limitations for an inverse condemnation claim begins to run at the moment the property first suffers injury, not when a plaintiff did or should have discovered it.\nIt is true that this Court has stated: \u201cThe rule is that a statute of limitations on an inverse condemnation claim begins running when plaintiffs\u2019 property first suffers injury.\u201d Robertson v. City of High Point, 129 N.C. App. 88, 91, 497 S.E.2d 300, 302 (citing Lea Co. v. N.C. Board of Transportation, 308 N.C. 603, 629, 304 S.E.2d 164, 181 (1983)), disc. review denied, 348 N.C. 500, 510 S.E.2d 654 (1998). However, we disagree with defendant that a property owner\u2019s awareness or discovery of the injury is irrelevant to when a claim for inverse condemnation begins to accrue. In fact, as discussed infra, decisions by this Court and our Supreme Court suggest the opposite is true. As this Court has stated: \u201cOur courts have recognized there may be excusable delay in filing actions. The legislature, in enacting [N.C. Gen. Stat. \u00a7] 40A-51(a), sought to account for such delay and provide plaintiffs adequate opportunity to discover damage.\u201d McAdoo, 91 N.C. App. at 572, 372 S.E.2d at 743 (citations omitted). Furthermore, in the three cases cited by defendant in support of its argument, this Court and/or our Supreme Court took the respective property owners\u2019 discovery or awareness of the injury to the property into account. In Robertson, immediately after stating the rule cited above, this Court proceeded to state:\nIn the instant case, plaintiffs had reasonable opportunity to discover that their property was injured well before the running of the statute of limitations. Plaintiffs\u2019 complaint states the landfill operation caused damage to their property beginning 9 October 1993. However, the complaint was filed 23 December 1996. Plaintiffs \u201coffer no explanation for their delay in filing this action, nor does it appear legally excusable . . . .\u201d Therefore, plaintiffs have failed to comply with the statute of limitations in N.C. Gen. Stat. \u00a7 40A-51.\nRobertson, 129 N.C. App. at 91, 497 S.E.2d at 302 (alteration in original) (quoting Smith, 79 N.C. App. at 523, 339 S.E.2d at 848). In Lea Co., 308 N.C. at 609, 304 S.E.2d at 170, the plaintiff brought an inverse condemnation action against the defendant, asserting that defendant\u2019s highway structures increased the level of flooding on the plaintiff\u2019s property and caused substantial flood damage to the plaintiff\u2019s apartment buildings. Hence, the damage to the plaintiff\u2019s property in that case, substantial flood damage, would have been readily perceivable. Finally, in Central Carolina Developers, the plaintiff bought a lot in 1995, purportedly did not discover a sewer pipe running through it until 1997, and brought an inverse condemnation claim against the defendant in 1998 based on the presence of the pipe, which had been installed in or around 1989, because the presence of the pipe barred the plaintiff from constructing a residence. 148 N.C. App. at 565, 559 S.E.2d at 231. This Court determined that \u201cany \u2018taking\u2019 would have occurred when the sewer pipe was installed across [the lot]\u201d and that the plaintiff\u2019s claim was barred by the statute of limitations. Id. at 567, 559 S.E.2d at 232. However, in that case.the \u201csewer pipe [was] \u2018clearly visible, and . . . above the water line of the creek,\u2019 crossing the creek on [the plaintiff\u2019s lot].\u201d Id. at 565, 559 S.E.2d at 231. In other words, the plaintiff could have easily noticed the pipe\u2019s presence on the lot.\nAs stated supra, we believe that the act of eliminating the old outfall from service, which purportedly occurred in late 2000 or early 2001 and triggered the process via which plaintiffs\u2019 property was substantially damaged, is the earliest point in time at which it can be fairly argued that a taking occurred here. Assuming, arguendo, that this is when the taking occurred, viewed in the light most favorable to plaintiffs, the forecast of evidence indicates that plaintiffs had no reason to know of the substantial interference with or damage to their property that eliminating the old outfall from service posed to their property. Admittedly, the noxious odors and poor draining that plaintiffs noticed subsequent to the old outfall being taken out of service and prior to learning that their house was connected to the old outfall might have arguably placed plaintiffs on notice of the injury to their property. However, we believe that a genuine issue of material fact exists as to whether any delay in filing their inverse condemnation action was excusable based on plaintiffs not having an \u201cadequate opportunity to discover [the] damage\u201d to their property, McAdoo, 91 N.C. App. at 572, 372 S.E.2d at 743, and thus, whether their action was timely filed in accordance with N.C. Gen. Stat. \u00a7 40A-51(a).\nIn sum, we hold that the earliest possible point at which it can be fairly argued that a taking occurred here is when defendant eliminated the old outfall from service. Assuming, arguendo, that this act constituted the taking, a genuine issue of material fact exists as to whether plaintiffs\u2019 had an adequate opportunity to discover the damage to their property, and thus, whether their action was timely filed in accordance with N.C. Gen. Stat. \u00a7 40A-51(a). Consequently, the trial court erred in granting summary judgment in defendant\u2019s favor based on the statute of limitations.\nC. Completion of the \u201cProject\u201d\nPlaintiffs also contend that a material issue of fact exists as to when the DSO Project was completed within the meaning of N.C. Gen. Stat. \u00a7 40A-51(a). Defendant contends that Breece conclusively completed its work on the DSO Project in November 2000, and, as a result, \u2022 there is no issue of material fact as to whether plaintiffs brought their inverse condemnation claim within two years of the project\u2019s completion in accordance with section 40A-51(a). Both parties cite this Court\u2019s decision in McAdoo, 91 N.C. App. at 570, 372 S.E.2d at 742, in support of their arguments. As discussed infra, we agree with plaintiffs that, based on the forecast of evidence, a material issue of fact exists as to when the DSO Project was completed.\nIn McAdoo, this Court determined that where a larger road widening project was done in individual sections, each section met the definition of \u2018\u201cprojects\u2019 for purposes of [N.C. Gen. Stat. \u00a7] 40A-51(a).\u201d Id. at 572, 372 S.E.2d at 743. However, this Court further stated that the \u201ccompletion of the \u2018project\u2019 \u201d in accordance with section 40A-51(a) does not necessarily equate to the \u201ccompletion of construction.\u201d Id. at 573, 372 S.E.2d at 744. In that case, the widening of the particular section of road at issue was finished on 10 May 1984, the defendant-municipality made its final inspection and acceptance of the project on 31 May 1984, the municipality authorized final payment on 5 September 1984, and final payment was made on 7 September 1984. Id. at 571, 372 S.E.2d at 742. However, the contract between the municipality and the company that performed the construction required said company to maintain the road for three months after the defendant\u2019s acceptance until 31 August 1984. Id. This Court concluded:\nThe fact that [the] defendant accepted the improvements is not relevant as it did so on [the] condition that the project be completed with necessary maintenance. [The defendant's authorization of final payment on 5 September 1984 and subsequent payment on 7 September 1984 show that [the] defendant did not consider the project completed until the maintenance period was over. For these reasons, we hold completion of the project was not until 31 August 1984, and the trial court erred in granting summary judgment to [the] defendant based on the statute of limitations.\u201d\nId. at 573, 372 S.E.2d at 744.\nDefendant asserts that McAdoo is distinguishable because in that case, the maintenance period was part, of the contractor\u2019s contractual obligations, and in contrast, here, all of the evidence in the record suggests that Breece was not contractually obligated to examine or make residential sewage system connections as part of the DS\u00d3 Project. Consequently, defendant argues that Breece\u2019s return to properly connect plaintiffs\u2019 residence to defendant\u2019s sewer system in May 2002 was not the date of the \u201ccompletion of the project involving the taking\u201d pursuant to N.C. Gen. Stat. \u00a7 40A-51(a). In his affidavit, Mr. Adams testified that: \u201cBreece performed the work in the area of plaintiffs\u2019 house in late 2000\u201d; the old outfall was abandoned in December 2000 or January 2001 \u201cas part of the [DSO] Project, with the new outfall . . . being connected to the sewage system in its place\u201d; \u201cBreece last submitted a billing to [defendant] for work on the [DSO] Project in early 2001\u201d; and this billing covered the period from 15 November 2000 through 12 January 2001. In his affidavit, David N. Breece (\u201cDavid Breece\u201d), a Vice President of Breece, testified that: defendant did not contract with Breece to make residential connections at the Dayton Street-Outfall section; Breece did not encounter any residential lines during its work there; and Breece completed its construction work in November 2000. Finally, Robert S. Breece (\u201cRobert Breece\u201d), also a Vice President of Breece, stated in his affidavit that: the plans provided to Breece by defendant for the DSO Project did not show a residential connection from plaintiffs\u2019 property to the old outfall; Breece did not encounter any residential lines during its work there; Breece was not responsible for the connection of any residential lines at the Dayton Street Outfall; and when Breece removed a section of the old outfall, which ran under plaintiffs\u2019 property, to install the new outfall and bypass the old outfall, \u201cthere was no noticeable discharge of sewage.\u201d\nThere is no copy of any contract between defendant and Breece regarding the Overall Project or regarding the particular DSO Project present in the record on appeal. While we agree with defendant that there appears to be no evidence in the record that residential connections were part of the agreement between it and Breece, at the summary judgment hearing, Breece conceded that it did not fill the old outfall with flowable fill and cap it as required by defendant\u2019s plans for the DSO Project and as required by the contract. In addition, both David Breece and Robert Breece testified that the old outfall was not filled and capped until May 2002, and Robert Breece further testified that, between November 2000 and May 2002, sewage would have \u201cexited the open ends [of the old outfall] much like a very large leech field.\u201d\nGiven the forecast of evidence that Breece did not fill and cap the old outfall as required by the plans and the contract at the time Breece purportedly finished its work on the DSO Project, plaintiffs assert that a material issue of fact exists as to whether the DSO project was completed prior to May 2002. Defendant argues that to the extent Breece\u2019s \u201cMay 2002 activities\u201d were related to the DSO Project, said activities are more like \u201c\u2018repair\u2019 \u201d work, which would not toll the statute of limitations or begin the running of a new statute of limitations period. As discussed infra, we agree with plaintiffs.\nIn support of its argument, defendant cites four cases: Hodge v. Harkey, 178 N.C. App. 222, 631 S.E.2d 143 (2006); Whitehurst v. Hurst Built, Inc., 156 N.C. App. 650, 577 S.E.2d 168 (2003); Bryant v. Don Galloway Homes, Inc., 147 N.C. App. 655, 556 S.E.2d 597 (2001); and Monson v. Paramount Homes, Inc., 133 N.C. App. 235, 515 S.E.2d 445 (1999). These cases all address the issue of whether a party\u2019s claims for damages, which are based on or arise out of defective or unsafe conditions of improvements to real property, are barred by North Carolina\u2019s statute of repose, which states:\nNo action to recover damages based upon or arising out of the defective or unsafe condition of an improvement to real property shall be brought more than six years from the later of the specific last act or omission- of the defendant giving rise to the cause of action or the substantial completion of the improvement.\nN.C. Gen. Stat. \u00a7 l-50(a)(5)(a) (2007). Hence, these cases implicate a different statutory provision than the case before us. Furthermore, \u201c[u]nlike a statute of limitations, a statute of repose will begin to run when a specific event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted.\u201d Nolan, 135 N.C. App. at 77, 518 S.E.2d at 792. In other words, \u201ca statute of repose may operate to cut off a defendant\u2019s liability even before an injury occurs.\u201d Id.\nThis greatly contradicts what this Court has stated about the purpose of the statute of limitation contained in section 40A-51(a): \u201cThe legislature, in enacting [N.C. Gen. Stat. \u00a7] 40A-51(a), sought to account for [excusable delay in filing inverse condemnation actions] and provide plaintiffs adequate opportunity to discover damage.\u201d McAdoo, 91 N.C. App. at 572, 372 S.E.2d at 743-44. Furthermore, unlike in Monson, 133 N.C. App. at 238, 515 S.E.2d at 448, where this Court emphasized that the plaintiff had presented no evidence that the defendant had a continuing duty to complete repairs under the' parties\u2019 original improvement contract, the forecast of evidence here tends to show that Breece did not fill and cap the old outfall in accordance with defendant\u2019s plans and their original agreement. In other words, the forecast of evidence indicates that Breece returned to plaintiffs\u2019 residence in May 2002 to perform work, which it had originally agreed to perform, but neglected to complete. Finally, we note that had Breece filled and capped the old outfall in November 2000, plaintiffs would have been able to discover the fact that their residence was connected to the old outfall instead of the main line without the 18 month delay, as both their wastewater and their neighbors\u2019 wastewater would have exited their respective homes into the old outfall, which would have been blocked. Instead, for over 18 months, the wastewater exited the respective homes, entered the old outfall, and poured out onto plaintiffs\u2019 property, allowing waste to accumulate, which substantially damaged plaintiffs\u2019 property.\n\u201c[A] municipality is solely liable for the damages that inevitably or necessarily flow from the construction of an improvement . . . .\u201d 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\nCity of Charlotte v. Long, 175 N.C. App. 750, 753, 625 S.E.2d 161, 164 (2006) (alterations in original) (quoting Ferrell, 79 N.C. App. at 110, 338 S.E.2d at 799). In Long, the defendants asserted that the installation of a new septic system on their property, which included a pump tank, 400 feet of pipe and a new leach field, constituted an additional taking. In that case, the municipality had previously acquired a permanent sanitary sewer easement across the defendants\u2019 property to install a gravity sewer line and a pressurized sewer force main for a residential development, which rendered defendants\u2019 septic waste system inoperable. Id. at 751, 625 S.E.2d at 164. The defendants consented to the installation of the new septic system, and \u201cthe plaintiff reciprocated by expending $16,000.00 to cover the cost.\u201d Id. at 754, 625 S.E.2d at 164. This Court concluded:\n[The pjlaintiff\u2019s installation of the pump, pipe, and field on [the] 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. . . . [The defendants incorrectly assert [that] a separate taking has occurred.\nId. As stated supra, when the evidence in the record here is viewed in the light most favorable to plaintiffs, it tends to establish that eliminating the old outfall from service, abandoning the portion of the old outfall that ran beneath plaintiffs\u2019 property, and filling and capping the abandoned portion of the old outfall were part of the improvement project, and consequently, that the damages to plaintiffs\u2019 property did necessarily flow from construction of the improvement.\nIn sum, we hold that a genuine issue of material fact exists as to when the \u201cproject involving the taking\u201d was completed in accordance with N.C. Gen. Stat. \u00a7 40A-51(a). Consequently, we hold that the trial court erred in granting summary judgment in defendant\u2019s favor based on the statute of limitations.\nIV. Conclusion\nIn sum, even if we assume, arguendo, that defendant\u2019s act of eliminating the old outfall from service constituted the \u201ctaking\u201d here, we hold that a material issue of fact exists as to whether plaintiffs had an adequate opportunity to discover the damage to their property, and thus, whether their delay in filing their inverse condemnation action was legally excusable and timely filed in accordance with N.C. Gen. Stat. \u00a7 40A-51(a). Furthermore, we hold that a material issue of fact exists as to when the DSO Project was completed within the meaning of N.C. Gen. Stat. \u00a7 40A-51(a). Standing alone, each of these grounds is sufficient to support our conclusion that the trial court erred in granting summary judgment in defendant\u2019s favor based on the statute of limitations. Accordingly, we reverse the trial court\u2019s order and remand this case to the trial court for further proceedings.\nReversed and remanded.\nJudges CALABRIA and HUNTER, Robert N., Jr. concur.\n. Breece was originally a defendant in this case; however, on 22 October 2007, plaintiffs and Breece entered into an agreement for \u201csettlement and mutual release.\u201d\n. Plaintiffs also brought a negligence claim against defendants. The trial court dismissed this claim with prejudice as well; this claim is not before us on appeal.\n. In addition, we note that plaintiffs assert that even after Breece returned to fill and cap the old outfall and to properly connect their residence to plaintiff\u2019s sewage system in May 2002, waste has continued to accumulate on their property because the old outfall has not been adequately filled and their residence was not properly connected to defendant\u2019s sewage system due to a dip in the line.", "type": "majority", "author": "HUNTER, Robert C., Judge." } ], "attorneys": [ "Sparrow Wolf & Dennis, P.A., by James A. Gregorio and Donald G. Sparrow, for plaintiff-appellants.", "Smith Moore Leatherwood LLP, by James G. Exum, Jr., Bruce P. Ashley, and Travis W. Martin, for defendant-appellee The City of High Point." ], "corrections": "", "head_matter": "THOMAS R. PEACH and wife, SUSAN M. PEACH, Plaintiffs v. CITY OF HIGH POINT and BREECE ENTERPRISES, INC., Defendants\nNo. COA08-1174\n(Filed 1 September 2009)\n1. Eminent Domain\u2014 inverse condemnation \u2014 replacement of sewer outfall \u2014 not solely a negligence claim\nHomeowners asserting damage from the replacement of a sewer outfall were not limited to bringing a negligence claim and were allowed to bring an inverse condemnation claim. Plaintiffs asserted that the damages to their property were generalized, not repairable, and resulted in loss of value to their property.\n2. Statutes of Limitation and Repose\u2014 inverse condemnation \u2014 replacement of sewer outfall \u2014 time of taking \u2014 opportunity to discover damage\nThe trial court erred by granting summary judgment based on the statute of limitations in an action alleging inverse condemnation where sewage backed up into the house and the yard after replacement of a sewer outfall and there were genuine issues of material fact as to when the taking occurred. Although defendant contended that the taking occurred when the old easement was acquired and the outfall installed on plaintiffs\u2019 property, there were issues as to when plaintiffs had an adequate opportunity to discover the damage to their property and whether the action was timely filed under N.C.G.S. \u00a7 40A-51(a).\n3. Statutes of Limitation and Repose\u2014 inverse condemnation \u2014 replacement of sewer outfall \u2014 time of taking \u2014 completion of project\nSummary judgment based on the statute of limitations should not have been granted in an inverse condemnation action that arose from the replacement of a sewer outfall where there was a genuine issue of material fact as to when the project was completed. The forecast of evidence tends to show that the construction company (with whom plaintiffs settled) had returned to plaintiffs\u2019 residence to perform work which it had originally agreed to do but neglected to complete.\nAppeal by plaintiffs from order entered 1 November 2007 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 11 March 2009.\nSparrow Wolf & Dennis, P.A., by James A. Gregorio and Donald G. Sparrow, for plaintiff-appellants.\nSmith Moore Leatherwood LLP, by James G. Exum, Jr., Bruce P. Ashley, and Travis W. Martin, for defendant-appellee The City of High Point." }, "file_name": "0359-01", "first_page_order": 385, "last_page_order": 401 }