Robinson v. North Carolina Department of Transportation

ARNOLD, Judge. Plaintiffs contend that the trial court erred in dismissing their complaint against the Department of Transportation. We agree. Inverse condemnation is governed by G.S. 136-111 which states in pertinent part: Any person whose land or compensable interest therein has been taken by an intentional or unintentional act or omission of the Department of Transportation and no complaint or declaration of taking has been filed by said Department of Transportation may . . . file a complaint in the superior court. . . . In Ledford v. Highway Comm., 279 N.C. 188, 190-91, 181 S.E. 2d 466, 468 (1971), our Supreme Court stated: “Taking” under the power of eminent domain may be defined generally as entering upon private property for more than a momentary period and, under the warrant or color of legal authority, devoting it to a public use, or otherwise informally appropriating or injuriously affecting it in such a way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof. [574] Although plaintiffs’ property damage caused by the bridge construction does not fit squarely within the above definition of a “taking,” North Carolina courts have consistently held that such damage does, in fact, constitute a “taking.” Falls Sales Co. v. Board of Trans., 292 N.C. 437, 233 S.E. 2d 569 (1977); Cody v. Department of Trans., 45 N.C. App. 471, 263 S.E. 2d 334, disc. rev. denied, 300 N.C. 372, 267 S.E. 2d 674 (1980). Damage to land which inevitably or necessarily flows from a public construction project results in an appropriation of land for public use. See City of Winston-Salem v. Ferrell, 79 N.C. App. 103, 338 S.E. 2d 794 (1986). The remedy for such property damage is an action against the Department of Transportation on the theory of condemnation. Falls Sales Co., 292 N.C. at 437, 233 S.E. 2d at 569; Cody, 45 N.C. App. at 471, 263 S.E. 2d at 334. Plaintiffs alleged in their complaint that Lee Construction Company, under contract with the Department of Transportation, engaged in pile driving operations which damaged their property. Plaintiffs further alleged that the damage to their property amounted to a “taking” for which they were entitled to compensation. Plaintiffs’ allegations clearly state a claim in inverse condemnation against the Department of Transportation pursuant to G.S. 136-111. The trial court had subject matter jurisdiction in the case and erred in dismissing the complaint. Reversed and remanded. Judges PHILLIPS and Cozort concur.