{ "id": 3733712, "name": "CAPE FEAR PUBLIC UTILITY AUTHORITY, Plaintiff v. JONATHAN COSTA, Defendant", "name_abbreviation": "Cape Fear Public Utility Authority v. Costa", "decision_date": "2010-07-20", "docket_number": "No. COA09-798", "first_page": "589", "last_page": "600", "citations": [ { "type": "official", "cite": "205 N.C. App. 589" } ], "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": "667 S.E.2d 501", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642112 ], "year": 2008, "pin_cites": [ { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/se2d/667/0501-01" ] }, { "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": "98 L. Ed. 2d 224", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "484 U.S. 916", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 600294, 599751, 602122, 600429, 600879, 602321, 600978, 601233, 601012, 600727, 599257, 602043, 601182, 601279 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/484/0916-06", "/us/484/0916-10", "/us/484/0916-07", "/us/484/0916-12", "/us/484/0916-01", "/us/484/0916-11", "/us/484/0916-05", "/us/484/0916-02", "/us/484/0916-14", "/us/484/0916-09", "/us/484/0916-13", "/us/484/0916-04", "/us/484/0916-03", "/us/484/0916-08" ] }, { "cite": "357 S.E.2d 641", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "650" } ], "opinion_index": 0 }, { "cite": "320 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725713 ], "pin_cites": [ { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0276-01" ] }, { "cite": "367 S.E.2d 916", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 113", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515083, 2518188, 2517520, 2513395, 2513629 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0113-03", "/nc/322/0113-05", "/nc/322/0113-01", "/nc/322/0113-02", "/nc/322/0113-04" ] }, { "cite": "363 S.E.2d 184", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "188" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 207", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358010 ], "year": 1987, "pin_cites": [ { "page": "215-16" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0207-01" ] }, { "cite": "339 S.E.2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "847" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 517", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521851 ], "year": 1986, "pin_cites": [ { "page": "521" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0517-01" ] }, { "cite": "140 S.E.2d 341", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "263 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572527 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/263/0656-01" ] }, { "cite": "172 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 292", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561022 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0292-01" ] }, { "cite": "559 S.E.2d 230", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "232" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 564", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9367267 ], "year": 2002, "pin_cites": [ { "page": "567-68" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0564-01" ] }, { "cite": "193 N.C. App. 404", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4161555 ], "year": 2008, "pin_cites": [ { "page": "408" } ], "opinion_index": 0, "case_paths": [ "/nc-app/193/0404-01" ] }, { "cite": "296 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "opinion_index": 0 }, { "cite": "59 N.C. App. 256", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526213 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/59/0256-01" ] }, { "cite": "349 S.E.2d 304", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "306" }, { "page": "306" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 116", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358122 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "120" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0116-01" ] }, { "cite": "321 S.E.2d 524", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "527-28", "parenthetical": "intent of parties to a contract regarding the conveyance of an easement was question of law for the court to decide" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 35", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523718 ], "year": 1984, "pin_cites": [ { "page": "40", "parenthetical": "intent of parties to a contract regarding the conveyance of an easement was question of law for the court to decide" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0035-01" ] }, { "cite": "21 S.E.2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "pin_cites": [ { "page": "821-22" } ], "opinion_index": 0 }, { "cite": "222 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628033 ], "year": 1942, "pin_cites": [ { "page": "4-5" } ], "opinion_index": 0, "case_paths": [ "/nc/222/0001-01" ] }, { "cite": "361 N.C. 519", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739573 ], "year": 2007, "pin_cites": [ { "page": "523-24" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0519-01" ] }, { "cite": "669 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "576", "parenthetical": "quoting Forbis v. Neal, 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007)" } ], "opinion_index": 0 }, { "cite": "362 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150896 ], "year": 2008, "pin_cites": [ { "page": "573", "parenthetical": "quoting Forbis v. Neal, 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007)" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0569-01" ] }, { "cite": "566 S.E.2d 766", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "768", "parenthetical": "\"We review the trial court's ruling on the motion to strike the affidavit for abuse of discretion.\"" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 215", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249507 ], "year": 2002, "pin_cites": [ { "page": "219", "parenthetical": "\"We review the trial court's ruling on the motion to strike the affidavit for abuse of discretion.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0215-01" ] }, { "cite": "349 S.E.2d 614", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "616-17", "parenthetical": "allowing expert witness surveyor to testify \"to the location of the beginning point of defendant's property\"" } ], "opinion_index": 1 }, { "cite": "83 N.C. App. 201", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358283 ], "year": 1986, "pin_cites": [ { "page": "203-05", "parenthetical": "allowing expert witness surveyor to testify \"to the location of the beginning point of defendant's property\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/83/0201-01" ] }, { "cite": "349 S.E.2d 886", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "886" } ], "opinion_index": 1 }, { "cite": "83 N.C. App. 340", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358555 ], "year": 1986, "pin_cites": [ { "page": "341" } ], "opinion_index": 1, "case_paths": [ "/nc-app/83/0340-01" ] }, { "cite": "461 S.E.2d 911", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "920-21" } ], "opinion_index": 1 }, { "cite": "120 N.C. App. 203", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914773 ], "year": 1995, "pin_cites": [ { "page": "215" } ], "opinion_index": 1, "case_paths": [ "/nc-app/120/0203-01" ] }, { "cite": "349 S.E.2d 304", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 1 }, { "cite": "83 N.C. App. 116", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358122 ], "year": 1986, "opinion_index": 1, "case_paths": [ "/nc-app/83/0116-01" ] } ], "analysis": { "cardinality": 1041, "char_count": 27683, "ocr_confidence": 0.777, "pagerank": { "raw": 5.3121587622801033e-08, "percentile": 0.3352351816650314 }, "sha256": "800697efdffa9057449361428075fbbfa1525a7db8e0a508cdd0addac0d76ba0", "simhash": "1:aeeca9fb727a075e", "word_count": 4477 }, "last_updated": "2023-07-14T21:30:55.510002+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge STEPHENS concurs.", "Judge BEASLEY dissents by separate opinion." ], "parties": [ "CAPE FEAR PUBLIC UTILITY AUTHORITY, Plaintiff v. JONATHAN COSTA, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nI. Factual Background and Procedural History\nDefendant Jonathan B. Costa (\u201cCosta\u201d) is the owner of certain property in New Hanover County which is designated as \u201cTract 3\u201d in the deed from James Henry Hobbs, Jr. and Evelyn Hobbs to Costa and his wife, Jessica A. Costa. The Recorded Plat (as shown by the map marked as Plaintiff\u2019s Exhibit 1; hereinafter referred to as \u201cthe Easement Map\u201d) shows a 30-foot wide sewer easement and a 30-foot wide access and utility easement that run along the northern side of Costa\u2019s property. The Easement Map reflects that \u201call sewer easements are public\u201d and are dedicated for public use.\nIn November and December 2006, the New Hanover County Water and Sewer District authorized the installation of and installed a sewer line and related sewer system components within the 30-foot sewer easement. On 23 August 2007, Costa brought suit against Coastal Colorado Development, LLC, the developer of a nearby subdivision, and New Hanover County, alleging negligence and seeking declaratory judgment and monetary damages related to the installation of the sewer line and components. On 12 February 2008, Costa voluntarily dismissed, without prejudice, New Hanover County from the Coastal Colorado Development lawsuit. Thereafter, a handwritten document titled \u201cMemo of Judgement\u201d [sic] was filed stating that there was no utility, sewer, or access easement on Costa\u2019s property. At the time the \u201cMemo of Judgement\u201d was filed, New Hanover County was no longer a party to the lawsuit. New Hanover County did not receive proper notice of the hearing at which the \u201cMemo of Judgement\u201d was entered, and New Hanover County did not participate in the hearing.\nOn 1 July 2008, through a merger of the New Hanover County Water and Sewer District, Plaintiff Cape Fear Public Utility Authority (\u201cthe Authority\u201d) became the owner of the easement rights over Costa\u2019s property. Because of the \u201cMemo of Judgement,\u201d Costa contended that he had the right to remove the Authority\u2019s sewer line and sewer system components from the easement over his property. On 12 November 2008, the Authority filed a complaint alleging that a 30-foot wide sewer easement and a 30-foot wide access and utility easement run along the north side of Costa\u2019s property. The Authority also sought and was granted a temporary restraining order and preliminary injunction against Costa to prevent him from interfering with the Authority\u2019s easements.\nIn response to the Authority\u2019s complaint, Costa filed an answer and counterclaim alleging that he owns the land over which the Authority claims an easement; that the map upon which the Authority is relying does not pertain to his property; and that the Authority is without authority to install sewer lines on Costa\u2019s property. Costa counterclaimed for continuing trespass and inverse condemnation.\nOn 19 February 2009, Costa filed a motion for partial summary judgment alleging that no genuine issue of material fact existed as to whether an easement exists on his property. In support of his motion, Costa submitted affidavits from D. Robert Williams, Jr., a North Carolina real estate attorney, and Arnold Carson, a licensed North Carolina surveyor. In their identical affidavits, Costa\u2019s affiants stated that the map under which the Authority claims its easement does not pertain to the Costa property.\nIn opposition to Costa\u2019s motion for partial summary judgment, the Authority filed the affidavit of Mark A. Stocks, the surveyor who performed the original survey at issue in this case, along with copies of the relevant deeds and map. The Authority also filed an objection to th\u00e9 affidavits submitted by Costa because Costa\u2019s affidavits were \u201cnothing more than a legal opinion of the legal effect of the map\u201d at issue.\nOn 20 March 2009, the trial court entered an Order denying Costa\u2019s motion for summary judgment, entering summary judgment in favor of the Authority, and striking the affidavits submitted by Costa because these constituted inadmissible \u201clegal conclusions[.]\u201d From this Order, Costa appeals.\nII. Discussion\nIn his sole argument on appeal, Costa contends \u201cthat the [trial] court erred in granting summary judgment in favor of the plaintiff because there are genuine issues of material fact with respect to whether the court should have considered the affidavits of Costa\u2019s tendered expert witnesses.\u201d We disagree.\nOur Court reviews the trial court\u2019s ruling on the admissibility of affidavits for an abuse of discretion. Blair Concrete Servs., Inc. v. Van-Alien Steel Co., 152 N.C. App. 215, 219, 566 S.E.2d 766, 768 (2002) (\u201cWe review the trial court\u2019s ruling on the motion to strike the affidavit for abuse of discretion.\u201d). \u201cOur standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that \u2018there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law..\u2019 \u201d In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007)).\nN.C. R. Evid. 702 permits expert witnesses to testify when such testimony \u201cwill assist the trier of fact to understand the evidence or to determine a fact in issuef.]\u201d N.C. R. Evid. 704 provides that \u201c[t]estimony in the form of an opinion or inference is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.\u201d However, there are limitations to this principle. The official commentary following Rule 704 provides a helpful example of these limitations:\n[T]he question \u201cDid T have capacity to make a will?\u201d would be excluded, while the question, \u201cDid T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?\u201d would be allowed.\nN.C. R. Evid. 704 (Commentary).\nOpinions of experts or other witnesses must not usurp the province of the court and jury by drawing conclusions of law or fact upon which the decision of the case depends, the test being\nwhether additional light can be thrown on the question under investigation by a person of superior learning, knowledge or skill in the particular subject, one whose opinion as to the inferences to be drawn from the facts observed or assumed is deemed of assistance to the jury under the circumstances.\nPatrick v. Treadwell, 222 N.C. 1, 4-5, 21 S.E.2d 818, 821-22 (1942). The intent of the parties to an easement agreement is a question of law for the court. See Biggers v. Evangelist, 71 N.C. App. 35, 40, 321 S.E.2d 524, 527-28 (1984) (intent of parties to a contract regarding the conveyance of an easement was question of law for the court to decide). Thus, we must decide if Costa\u2019s witnesses\u2019 testimony was helpful to the trial court or if it decided a question of law which could only be decided by the trial court. For the following reasons, we conclude that the affidavits of Defendant\u2019s witnesses usurped the province of the trial court and, accordingly, were incompetent.\nIn Williams v. Sapp, 83 N.C. App. 116, 349 S.E.2d 304 (1986), this Court held that it was reversible error to permit an attorney appearing as an expert witness to testify that an easement by implication existed under the circumstances of that case. Id. at 120, 349 S.E.2d at 306. The Williams Court explained that:\n[Plaintiff\u2019s expert\u2019s] opinion merely tells the jury the result that they should reach and, therefore, is not helpful to their determination of a fact in issue, as required by G.S. 8C-1, Rules 701 and 702. See, Commentary, G.S. 8C-1, Rule 704. The attorney\u2019s testimony regarding his opinion amounts to instructions to the jury on easements by implication. This testimony does not invade the province of the jury, which plaintiff argues is permissible, but invades the province of the court and should not have been admitted. See, Board of Transportation v. Bryant, 59 N.C. App. 256, 296 S.E.2d 814 (1982). This error was clearly prejudicial to defendants, because the jury was required to answer the same question asked of plaintiff\u2019s expert witness. We hold, therefore, that defendants are entitled to a new trial on the issue of easement by implication.\nId.\nIn the present matter, Costa\u2019s witnesses made the following pertinent statements in their identical affidavits:\n4. . . . [T]here is a clearly defined 30 foot sewer easement, 30 foot access and utility easement that pertain to Tracts A, C, D, and E, and a 30 foot sewer easement that pertains to Tracts A, C, D, and E.\n5. The James Henry Hobbs, Jr. parcel is an uplands parcel, also known in this case as a remnant parcel, with no tract letter and this parcel is explicitly excluded from the acreage definition of the Map.\n6. The solid lines drawn on the map are drawn around Tracts A, B, C, D, and E, but not around the James Henry Hobbs, Jr. tract.\n7. This map, by its own definition, is a map that pertains to Tracts A, B, C, D and E, all as shown with setback requirements and total acreage and specifically excludes the remainder tract or remnant tract known as the James Henry Hobbs, Jr. Tract, owned by the plaintiff.\n8. My conclusion, based upon my training and experience, examination of the public records, and the documents referred to in the complaint and in this affidavit, is that there is no dedicated easement other than the 15 foot roadway easement on the James Henry Hobbs, Jr. parcel.\nOf these statements, the first four are not helpful to the trier of fact, as they merely describe the obvious physical features of the map. Thus, these were properly excluded. See N.C. R. Evid. 702. The final statement reaches a conclusion and decides an issue reserved for the trial court. This statement clearly \u201cinvades the province of the court and should not have been admitted.\u201d Williams, 83 N.C. App. at 120, 349 S.E.2d at 306. Accordingly, the trial court did not abuse its discretion in striking the proposed affidavits.\nAbsent the affidavits of Costa\u2019s witnesses, no genuine issue of material fact exists as to whether the easement crosses Costa\u2019s property. Accordingly, on the sole issue raised by the appeal to this Court, the order of the trial court is affirmed. We find it necessary, however, to address other issues which should be dispositive of this action, but which the parties and the trial court failed to recognize.\nDefendant\u2019s counterclaim purported to state claims against Plaintiff for trespass, inverse condemnation, and a \u201cdeclaratory judgment finding that Plaintiff has no easement upon Defendant\u2019s property[.]\u201d We first note that Defendant was bringing a counterclaim for inverse condemnation against a water and sewer authority, \u201ccreated under the provisions of Article 1 of Chapter 162A[,]\u201d which is vested with the power of eminent domain as a public condemnor, pursuant to N.C. Gen. Stat. \u00a7 40A-3(c)(8) (2007). Chapter 40A of the General Statutes contains the exclusive procedures used in this State by public condemnors. New Hanover County Water & Sewer Dist. v. Thompson, 193 N.C. App. 404, 408, 667 S.E.2d 501, 504 (2008). Defendant\u2019s counterclaim is thus governed by N.C. Gen. Stat. \u00a7 40A-51, which deals with situations in which \u201cproperty has been taken by an act or omission of a condemnor listed in G.S. 40A-3(b) or (c) and no complaint containing a declaration of taking has been filed[.]\u201d N.C. Gen. Stat. \u00a7 40A-51(a) (2007). Pursuant to N.C. Gen. Stat. \u00a7 40A-51(a), Defendant\u2019s counterclaim was required to include the following allegations:\nthe names and places of residence of all persons who are, or claim to be, owners of the property, so far as the same can by reasonable diligence be ascertained; if any persons are under a legal disability, it must be so stated; a statement as to any encumbrances on the property; the particular facts which constitute the taking together with the dates that they allegedly occurred, and; a description of the property taken. Upon the filing of said complaint summons shall issue and together with a copy of the complaint be served on the condemnor ....\nDefendant was also required to file a memorandum of action \u201cwith the register of deeds in all counties in which the property is located[,]\u201d which includes the following information:\n(1) The names of those persons who the owner is informed and believes to be or claim to be owners of the property;\n(2) A description of the entire tract or tracts affected by the alleged taking sufficient for the identification thereof;\n(3) A statement of the property allegedly taken; and\n(4) The date on which owner alleges the taking occurred, the date on which said action was instituted, the county in which it was instituted, and such other reference thereto as may be necessary for the identification of said action.\nN.C. Gen. Stat. \u00a7 40A-51(b). Although Defendant alleged in his counterclaim that he \u201cspecifically pleads the law of Inverse Condemnation],]\u201d he completely failed to .comply with the requirements of N.C. Gen. Stat. \u00a7 40A-51, both in the allegations of the counterclaim and by his failure to file a memorandum of action. Even if we were to give Defendant the benefit of the allegations of Plaintiffs complaint as providing some of this required information, Defendant\u2019s answer and counterclaim specifically denied the allegations which contained these required facts. Defendant\u2019s counterclaim for inverse condemnation was thus subject to dismissal for its failure to comply with N.C. Gen. Stat. \u00a7 40A-51.\nDefendant also alleged a counterclaim for \u201ctrespass,\u201d but our courts have repeatedly held that\n\u2018[t]he exclusive remedy for failure to compensate for a \u2018taking\u2019 is inverse condemnation under G.S. 40A-51 .... An owner has no common-law right to bring a trespass action against a city.\u2019 McAdoo, 91 N.C. App. at 573, 372 S.E.2d at 744. Plaintiff has no claim for trespass against [Moore Water and Sewer Authority] because it is a public utility with the power of eminent domain just as a municipality.\nCent. Carolina Developers, Inc. v. Moore Water & Sewer Auth., 148 N.C. App. 564, 567-68, 559 S.E.2d 230, 232 (2002). Although Chapter 40A \u201cdoes not expressly state that [it] is the sole means for bringing inverse condemnation actions],]\u201d this Court has noted that\nG.S. 40A-51, which provides for actions by private property owners where their property has been taken by governmental action without compensation, is clearly the relevant statute. Inverse 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. Hoyle v. City of Charlotte, 276 N.C. 292, 172 S.E.2d 1 (1970). It allows a property owner to obtain compensation for a taking in fact, even though no formal exercise of the taking power has occurred. See City of Charlotte v. Spratt, 263 N.C. 656, 140 S.E.2d 341 (1965). G.S. 40A-51 provides the private property owner with a means to compel government action. If Chapter 40A provides the sole means for the City to condemn aviation easements over plaintiffs\u2019 land, it follows that plaintiffs\u2019 sole inverse condemnation remedy would lie under G.S. 40A-51.\nSmith v. City of Charlotte, 79 N.C. App. 517, 521, 339 S.E.2d 844, 847 (1986). Therefore, Defendant\u2019s counterclaim for trespass or for any other sort of monetary damages for taking was also subject to dismissal.\nDefendant\u2019s counterclaim for a \u201cdeclaratory judgment\u201d that \u201cplaintiff has no easement upon defendant\u2019s property\u201d is likewise governed by N.C. Gen. Stat. \u00a7 40A-51. Whether Plaintiff had any interest in Defendant\u2019s property, including an easement, would properly be addressed at a hearing under N.C. Gen. Stat. \u00a7 40A-47 (2007), which requires the trial court to\nhear and determine any and all issues raised by the pleadings other than the issue of compensation, including, but not limited to, the condemnors\u2019 authority to take, questions of necessary and proper parties, title to the land, interest taken, and area taken.\nBoth Plaintiff\u2019s and Defendant\u2019s briefs seem to assume that there could be a jury question as to Plaintiff\u2019s \u201ctaking\u201d of the property. This is incorrect, as there is no right to a trial by jury on the issue of the taking of a property interest under N.C. Gen. Stat. \u00a7 40A-51. This Court addressed this issue in regard to a taking by a local public condemnor in Raleigh-Durham Airport Authority v. Howard, 88 N.C. App. 207, 215-16, 363 S.E.2d 184, 188 (1987), disc. review denied, 322 N.C. 113, 367 S.E.2d 916 (1988), as follows:\n[T]he issue of ownership was not \u2018triable by a jury of right.\u2019 N.C. Gen. Stat. Sec. 40A-43 (1984) which controls special proceedings in condemnation of land for airports provides: The judge, upon motion and 10 days\u2019 notice by either the condemnor or the owner, shall, either in or out of session, hear and determine any and all issues raised by the pleadings other than the issue of compensation, including but not limited to, the condemnors\u2019 authority to take, questions of necessary and proper parties, title to the land, interest taken, and area taken, (emphasis added.)\nIn an action for inverse condemnation by a public condemnor, the court must determine all issues as to the ownership of the property and the interest and area taken. See id. Indeed, instead of a summary judgment hearing, the trial court should have been holding a hearing pursuant to N.C. Gen. Stat. \u00a7 40A-47 to determine issues other than damages. For this reason, even if the trial court had considered the affidavits submitted by Defendant, the trial court could properly have determined any issues regarding the property interest taken under N.C. Gen. Stat. \u00a7 40A-47. Only just compensation can be a jury issue, assuming that compensation is not determined by commissioners appointed pursuant to N.C. Gen. Stat. \u00a7 40A-48 (2007). Chapter 40A, Article 4 governs \u201cthe determination of compensation to be awarded to the owner by the condemnor for the taking of his property.\u201d N.C. Gen. Stat. \u00a7 40A-62 (2007).\nTherefore, the trial court\u2019s order granting summary judgment for Plaintiff was correct and should be affirmed, although for different reasons. See State v. Austin, 320 N.C. 276, 290, 357 S.E.2d 641, 650 (\u201cA correct decision of a lower court will not be disturbed on review simply because an insufficient or superfluous reason is assigned. The question for review is whether the ruling of the trial court was correct and not whether the reason given therefor is sound or tenable.\u201d (citation omitted)), cert. denied, 484 U.S. 916, 98 L. Ed. 2d 224 (1987). While this Court must address the issues actually raised by the parties in this appeal, we are compelled to point out that it would be inappropriate for any future litigants to rely upon this opinion for the proposition that a landowner can bring a claim for inverse condemnation against a public condemnor without compliance with the requirements of Chapter 40A.\nAFFIRMED.\nJudge STEPHENS concurs.\nJudge BEASLEY dissents by separate opinion.\n. Although the counterclaim did not allege the date of the taking, the record contains a stipulation that the sewer line was completed within two years prior to the service and filing of Defendant\u2019s counterclaim \u201csuch that Plaintiff would not have a statute of limitations defense to such Inverse Condemnation claim.\u201d This stipulation also provided that Defendant Costa would dismiss with prejudice a pending \u201cNew Hanover County Superior Court civil action[,]\u201d file No. 08-CVS-2228, filed against New Hanover County. Perhaps the other case which was dismissed also dealt with Defendant\u2019s inverse condemnation claim; however, our record contains no further information about the dismissed case.", "type": "majority", "author": "STROUD, Judge." }, { "text": "BEASLEY, Judge,\ndissenting.\nBecause I believe that the trial court abused its discretion by striking the affidavits of Costa\u2019s tendered expert witnesses in their entirety, rather than striking only the final paragraph of each, and consideration of the admissible portions thereof creates a genuine issue of material fact as to whether the map in question pertains to Costa\u2019s property, I respectfully dissent.\nThe majority relies on Williams v. Sapp, 83 N.C. App. 116, 349 S.E.2d 304 (1986), to support its conclusion that the final paragraph of each affidavit submitted by Costa is inadmissible. Where the final statement in each of Costa\u2019s experts\u2019 affidavits reaches a naked conclusion analogous to the inadmissible conclusory testimony in Williams that an easement by implication existed \u2014 comparable to whether T had capacity to make a will \u2014 I agree with the majority that paragraph 8 \u201cinvades the province of the court\u201d and was correctly stricken from the evidence. I believe, however, that the remaining statements are distinguishable from Williams in that they do not amount to an instruction to the jury regarding what result to reach. Rather, paragraphs 4-7 of the affidavits are more akin to testimony regarding T\u2019s \u201cmental capacity to know the nature and extent of his property and the natural objects of his bounty.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 704 (Commentary). Moreover, I believe that these statements denying that the map includes Costa\u2019s property (and not reaching any decision reserved for the trial court as to the existence of an easement) aid the jury in understanding the plat and discerning its meaning. Therefore, I disagree with the majority\u2019s conclusion that paragraphs 4-7 are not helpful to the trier of fact because \u201cthey merely describe the obvious physical features of the map,\u201d as the jury is most likely unfamiliar with reading and making sense of these types of surveys.\nIn several cases, this Court has allowed surveyors to express their opinions, which not only supports a conclusion that paragraphs 4-7 do not invade the province of the jury but also implicitly deems such testimony helpful. See, e.g., Beam v. Kerlee, 120 N.C. App. 203, 215, 461 S.E.2d 911, 920-21 (1995) (allowing expert land surveyor to testify to conclusions he had drawn from old survey maps, despite embracing an ultimate issue to be decided by the trier of fact, because he \u201cwas an expert in land survey and his testimony may have helped the jury understand conclusions which could be drawn [therefrom]\u201d); Wellborn v. Roberts, 83 N.C. App. 340, 341, 349 S.E.2d 886, 886 (1986) (reasoning that Rule 704 superseded the previous rule that \u201ca surveyor could not state his opinion as to the location of a boundary\u201d and finding expert surveyor and lay testimony as to where they believed the boundary line was located unobjectionable merely because it related to an ultimate issue in the case); Green Hi-Win Farm, Inc. v. Neal, 83 N.C. App. 201, 203-05, 349 S.E.2d 614, 616-17 (1986) (allowing expert witness surveyor to testify \u201cto the location of the beginning point of defendant\u2019s property\u201d). Paragraphs 4-7 of the affidavits at issue, testifying that a particular map does not pertain to a particular piece of property, are substantially similar to testimony as to the location of the beginning point of a deed, where a property boundary lies, and conclusions drawn from a survey.\nThe majority\u2019s failure to consider these Rule 704 cases that deal specifically with survey map testimony has resulted in a holding that I believe is contrary to North Carolina case law. In conclusion, I believe that only paragraph 8 amounts to an instruction on whether Costa\u2019s parcel is subject to the easements, and where paragraphs 1-3 merely address affidavit formalities and paragraphs 4-7 would indeed assist the jury to comprehend the evidence, the trial court abused its discretion in striking anything but the final statement of each affi-. davit. Accordingly, the admission of Costa\u2019s affidavits into evidence, when compared with the affidavit submitted by the Authority, would create a genuine issue of material fact as to whether the easement in question includes Costa\u2019s property.\nAdditionally, I do not believe that Costa\u2019s failure to comply with the requirements of Chapter 40A is dispositive of this entire action. While I agree that the statutory procedure issues recognized by the majority dispose of Costa\u2019s counterclaims, the Authority\u2019s allegation that the easement crossed Costa\u2019s property would have remained for resolution even if the trial court had dismissed Costa\u2019s counterclaims for inverse condemnation, trespass, and declaratory judgment. Where the Authority\u2019s claims for declaratory and injunctive relief are not controlled by Chapter 40A or subject to dismissal for failure to comply therewith, the Authority\u2019s action would have survived. As such, Costa would still have been able to present his defense thereof, and his affidavits were admissible, excluding paragraph 8, to dispute the Authority\u2019s allegation that his property is subject to the easement at issue. Thus, I would qualify the majority\u2019s approval of the order \u2014 for the reasons addressed sua sponte under Chapter 40A \u2014 by limiting the grant of summary judgment to Costa\u2019s counterclaims. As such, I would reverse the trial court\u2019s order striking paragraphs 1-7 of Costa\u2019s affidavits and entering summary judgment in favor of Authority and remand for consideration of the affidavits, as admissible, and for dismissal of Costa\u2019s counterclaims, as consistent with the latter part of the majority\u2019s opinion. Therefore, I respectfully dissent.", "type": "dissent", "author": "BEASLEY, Judge," } ], "attorneys": [ "Bruce Robinson, for defendant-appellant.", "Ward and Smith, RA., by Cheryl A. Marteney, for plaintiffappellee." ], "corrections": "", "head_matter": "CAPE FEAR PUBLIC UTILITY AUTHORITY, Plaintiff v. JONATHAN COSTA, Defendant\nNo. COA09-798\n(Filed 20 July 2010)\n1. Evidence\u2014 expert witness \u2014 affidavit\u2014usurped province of trial court \u2014 summary judgment correct\nThe trial court did not err in granting summary judgment in favor of plaintiff, a public utility authority, on its complaint concerning the installation of a sewer line and related sewer system components within an easement on defendant\u2019s property. Affidavits of defendant\u2019s tendered expert witnesses usurped the province of the trial court by drawing conclusions of law, and accordingly, were incompetent. Absent these affidavits, no genuine issue of material fact existed as to whether the disputed easement crossed defendant\u2019s property.\n2. Eminent Domain\u2014 inverse condemnation \u2014 counterclaim\u2014 failed to comply with requirements\nDefendant\u2019s counterclaim for inverse condemnation against a water and sewer authority failed to comply with the requirements of N.C.G.S. \u00a7 40A-51. Moreover, even if defendant was given the benefit of the allegations of plaintiff\u2019s complaint as providing some of the information required by N.C.G.S. \u00a7 40A-51, defendant\u2019s answer and counterclaim specifically denied the allegations which contained the required facts.\n3. Trespass\u2014 easement \u2014 eminent domain \u2014 inverse condem- , nation \u2014 exclusive remedy\nIn an action concerning the installation of a sewer line and related sewer system components within an easement on defendant\u2019s property, defendant\u2019s counterclaim for trespass against a public utility with the power of eminent domain was dismissed because the exclusive remedy for failure to compensate for a taking is inverse condemnation under N.C.G.S. \u00a7 40A-51.\n4. Declaratory Judgments\u2014 easement \u2014 inverse condemnation\nIn an action concerning the installation of a sewer line and related sewer system components within an easement on defendant\u2019s property, defendant\u2019s counterclaim for declaratory judgment that plaintiff had no easement upon defendant\u2019s property was governed by N.C.G.S. \u00a7 40A-51 and was dismissed.\nBEASLEY, Judge dissenting by separate opinion.\nAppeal by Defendant from Order entered 20 March 2009 by Judge Paul G. Gessner in Superior Court, New Hanover County. Heard in the Court of Appeals 5 November 2009.\nBruce Robinson, for defendant-appellant.\nWard and Smith, RA., by Cheryl A. Marteney, for plaintiffappellee." }, "file_name": "0589-01", "first_page_order": 617, "last_page_order": 628 }