Cty. of Moore v. Acres

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-446

No. COA21-552

Filed 5 July 2022

Moore County, No. 19 CVS 806

COUNTY OF MOORE, Plaintiff,

v.

RANDY ACRES and SOEK YIE PHAN, Defendants.

Appeal by plaintiff from order entered 14 May 2021 by Judge Michael A. Stone

in Moore County Superior Court. Heard in the Court of Appeals 22 February 2022.

Womble Bond Dickinson (US) LLP, by H. Stephen Robinson and Mary Craven
Adams, and Moore County, by Misty Randall Leland, for Plaintiff-Appellant.

McGuireWoods LLP, by Robert Muckenfuss and R. Locke Beatty, for
Defendants-Appellees.

INMAN, Judge.

¶1 Plaintiff County of Moore (“the County”) appeals the trial court’s summary

judgment order dismissing its complaint seeking declaratory and injunctive relief

requiring Defendants Randy Acres and Soek Yie Phan (“Defendants”) to remove an

alleged “spite fence” erected along their rear property line. The complaint alleges

Defendants built the new fence and planted invasive holly trees that restrict access

to the public underground water and sewer infrastructure operated by the County.

¶2 The trial court entered summary judgment in favor of Defendants and
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dismissed the County’s complaint on the ground that the County had not shown it

holds title to the water and sewer pipes or a utility easement. The County appeals.

For the reasons explained below, we reverse and remand for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

¶3 The record tends to show the following:

¶4 The Village of Pinehurst (“Pinehurst”) was built at the turn of the 20th century.

The founding developers installed water and sewer lines to provide services to the

residents. The County took ownership of the water and sewer system in 1999 and

has provided service to the residents of Pinehurst through that same system ever

since.1

¶5 Among the mains within the County’s infrastructure are a cast iron water line

and a clay sewer line that run along the rear of Defendants’ property located on

Palmetto Road in Pinehurst (the “Property”). The water main provides fire-fighting

service to the Property and surrounding parcels and further functions to prevent

stagnation and offers a redundancy in the event another water line is out of service.

The sewer line services only the Property.

The record discloses the water and sewer system came under the ownership and
1

operation of the Pinehurst Water and Sanitary Company, Inc. by the 1900s. Roughly a
century later, in 1993, Pinehurst Water and Sanitary Company deeded the system to Moore
Water and Sewer Authority (“MOWASA”), a regional public water and sewer authority
created pursuant to statute. See N.C. Gen. Stat. §§ 162A-3, et seq. (2021). In 1999, MOWASA
ceased operation and deeded the water and sewer system to the County.
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¶6 The utility mains were installed on the Property prior to when Defendants’

home was built; however, the record contains conflicting evidence as to exactly when

the lines were installed and by whom. A 1956 map found in the County’s archives

shows the sewer main dated to 1900. A fire plug installed on the water main is

imprinted with the year 1914. Neither of the lines, nor any recorded easement for

either of them, appears in the chain of title to the Property.

¶7 When Defendants purchased the Property in 2004, an existing fence and

foliage were located several feet inside their property line. In 2012, the County

contacted Defendants to schedule maintenance on the sewer and water lines, which

would require removing and replacing a portion of that fence. Defendants expressly

permitted the contractor to do so, and the County serviced the lines.2

¶8 In 2018, Defendants’ neighboring property owners constructed an addition to

their home that resulted in a dispute among those neighbors and Defendants. On 28

October 2018, Defendants applied to Pinehurst for a permit to construct a new fence

extending closer to their property line. Pinehurst responded by advising Defendants

2 Mr. Gould, the County Public Works Director, testified in deposition that the
contractor sought permission from Defendants rather than claim an easement because the
repair was part of scheduled maintenance and not an emergency that required immediate
rehabilitation. Mr. Gould further testified that the County does not and would not seek
permission from a landowner in the event of an emergency that required immediate repair,
relying instead on its easement rights to effectuate any repair without pursuing or receiving
prior authorization from the landowner.
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that they “must contact Moore County Public Works . . . to determine water line

placement and recommended location of fencing.” Defendants never contacted Moore

County about the location of the fence. They called a local 811 service for public utility

markings. Defendants then dug installation holes for the new fence, exposing but not

rupturing the underground mains.

¶9 On 18 March 2019, after learning of Defendants’ installation and exposure of

the utility lines, Pinehurst notified the Engineering Division of Moore County Public

Works. Moore County staff visited the site the same day and attempted to order them

to stop the work. The next day, the County sent Defendants an e-mail stating the

fence was required to be installed outside the Moore County easement.

¶ 10 Defendants allegedly did not respond to the County’s e-mail and constructed

the new fence the following month, running above the utility mains operated by the

County and blocking their neighbors’ access to their new garage. The County alleges

the new fence blocks public access to a gravel alleyway that neighbors and community

members have used for decades. The County also alleges Defendants’ new fence

closes in “the water main, sewer main and manhole, thus preventing adequate access

to the utilities . . . .”
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¶ 11 The following map, included for illustrative purposes only,3 shows the

approximate location of Defendants’ new fence:

3This map should not be considered evidentiary or determinative of any fact at issue
between the parties and is simply included to aid the reader in visualizing the physical
improvements at the center of this dispute.
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¶ 12 On 24 May 2019, the County sent Defendants two letters demanding the fence

be removed within 14 days. Defendants did not remove the fence and, several weeks

later, allegedly planted holly trees “all along the inside of the fence directly above the

water main . . . .”

¶ 13 On 25 June 2019, the County initiated this action by filing a complaint in

Moore County Superior Court. On 2 August 2021, the County filed an Amended

Complaint seeking preliminary and permanent injunctive relief. The County further

sought a declaration that it “enjoys the rights of ownership, pursuant to its power of

eminent domain, of the manhole, water and sewer mains and the easements,

measuring 10 feet on each side of the water main and sewer main . . . .”

¶ 14 The matter was removed to and subsequently remanded from the United

States District Court for the Middle District of North Carolina. On 5 April 2021,

Defendants moved for summary judgment. The County filed a cross-motion for

partial summary judgment on the issue of the County’s ownership of the lines and

easement, leaving the size and scope of any such easement for determination at trial.

¶ 15 The parties’ motions for summary judgment came on for hearing on 29 April

2021, with the trial court noting that “there’s no evidence even in the record that

Moore County even owns the pipe.” Following the hearing, the trial court entered

summary judgment in favor of Defendants and dismissed the County’s claims for

injunctive and declaratory relief. The County appeals.
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II. ANALYSIS

¶ 16 The record evidence reveals Defendant Randy Acres purchased the Property

in late 2004 with the abutting gravel throughway and water and sewer mains already

constructed and in operation.4 The trial court nevertheless agreed with Defendants

that the County failed to show it took title to a utility easement and therefore could

not restrict Defendants’ use of the Property. We conclude the trial court erred and

reverse the summary judgment order.

A. Standard of Review

¶ 17 Summary judgment is appropriate where “the pleadings, depositions, answers

to interrogatories, and admissions on file 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.”

N.C. Gen. Stat. § 1A-1, Rule 56(c) (2021). “The party who moves for summary

judgment bears the burden of establishing the lack of any triable issue of fact.”

Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353

(1985). In reviewing the evidence anew and in the light most favorable to the

nonmoving party, the court must ultimately determine “whether there is any genuine

issue of material fact and whether the moving party is entitled to judgment as a

matter of law.” Griggs v. Shamrock Bldg. Servs., Inc., 179 N.C. App. 543, 546, 634

4 A non-warranty deed was made on 1 September 2015 by and between Randy Acres
and his spouse Soek Yie Phan.
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S.E.2d 635, 637 (2006) (citation omitted). “The movant may meet this burden by

proving that an essential element of the opposing party’s claim is nonexistent, or by

showing through discovery that the opposing party cannot produce evidence to

support an essential element of his claim . . . .” Collingwood v. G.E. Real Estate

Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989).

¶ 18 A trial court’s order on summary judgment is reviewed de novo. Wilkerson v.

Duke Univ., 229 N.C. App. 670, 673, 748 S.E.2d 154, 157 (2013). “Under a de novo

review, the court considers the matter anew and freely substitutes its own judgment

for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d

290, 294 (2008).

B. County’s Power to Exercise Eminent Domain

¶ 19 “Private property can be taken by the exercise of the power of eminent domain

only where the taking is for a public use.” Highway Comm. v. Equipment Co., 281

N.C. 459, 468, 189 S.E.2d 272, 278 (1972) (citation omitted). North Carolina General

Statutes Chapter 40A, Article I, Section 3 authorizes counties to exercise the power

of eminent domain for the construction of public water supplies and public sewage

systems. N.C. Gen. Stat. § 40A-3(b)(4) (2021). “When land is appropriated under this

power of eminent domain . . . , the [county] acquires an easement . . . in the land so

taken, and the fee to the property remains in the landowner, who may subject the

land to any use which is not inconsistent with its use for the purpose for which it is
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taken.” Proctor v. Highway Commission, 230 N.C. 687, 691, 55 S.E.2d 479, 481

(1949).

¶ 20 A “taking” for purposes of the power of eminent domain occurs upon “entering

upon private property for more than a momentary period, and, under 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 . . . deprive [the owner] of

all beneficial enjoyment thereof.” Penn v. Coastal Corp., 231 N.C. 481, 484, 57 S.E.2d

817, 819 (1950) (citation omitted); see also City of Charlotte v. Combs, 216 N.C. App.

258, 261, 719 S.E.2d 59, 62 (2011).

Moreover, what is a taking of property within the due
process clause of the Federal and State constitutions, . . . is
not always clear, but so far as general rules are permissible
of declaration on the subject, it may be said that there is
a taking when the act involves an actual interference with,
or disturbance of property rights, resulting in injuries
which are not merely consequential or incidental.

Penn, 231 N.C. at 484-85, 57 S.E.2d at 819-20 (citation and quotation marks omitted);

see also Town of Apex v. Whitehurst, 213 N.C. App. 579, 584, 712 S.E.2d 898, 902

(2011).

¶ 21 Black’s Law Dictionary defines a “taking” as “[t]he government’s actual or

effective acquisition of private property . . . by . . . severely impairing its utility.”

Taking, Black’s Law Dictionary (11th ed. 2019). “There is a taking of property when

government action directly interferes with or substantially disturbs the owner’s use
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and enjoyment of the property.” Id. An entity with the power of eminent domain

that takes possession of pre-existing infrastructure on private property always holds

title to that portion taken and is never a trespasser. Cf. Durham v. Wright, 190 N.C.

568, 571-572, 130 S.E. 161, 163 (1925) (“[I]n the absence of any contract or contracts

with [the] city in relation to the lands used or occupied by it for the purpose of . . .

public works . . . , it shall be presumed that the said land has been granted to said

city by the owner or owners thereof, and [the] city shall have good right and title

thereto . . . .” (citation omitted)).

¶ 22 When the government takes private property for public use, just compensation

must be paid. Fisher v. Town of Nags Head, 220 N.C. App. 478, 481, 725 S.E.2d 99,

103 (2012) (citation and quotation marks omitted). In the event a governing body

effectuates a taking without first initiating a formal condemnation proceeding, an

aggrieved property owner’s only means of obtaining just compensation is through an

action in inverse condemnation. N.C. Gen. Stat. § 40A-51(a) (2021). Inverse

condemnation is “a cause of action against a governmental defendant to recover the

value of property which has been taken in fact by the governmental defendant, even

though no formal exercise of the power of eminent domain has been attempted by the

taking agency.” Town of Apex v. Rubin, 277 N.C. App. 328, 2021-NCCOA-187, ¶ 18

(emphasis omitted) (quoting Wilkie v. City of Boiling Spring Lakes, 370 N.C. 540, 552,

809 S.E.2d 853, 861 (2018)).
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¶ 23 Inverse condemnation is an aggrieved landowner’s sole remedy for a

government taking regardless of whether the government initiated the taking by a

condemnation action. McAdoo v. City of Greensboro, 91 N.C. App. 570, 573, 372

S.E.2d 742, 744 (1988) (“Summary judgment for defendant was appropriate not

because of the statute of limitations but because defendant as a city had the power of

eminent domain, and such power insulates it from trespass actions regardless of

whether compensation was paid or proper procedures were used. The exclusive

remedy for failure to compensate for a ‘taking’ is inverse condemnation under G.S.

40A-51.”).

Once the cause of action has occurred by the infliction of
damage to the property, the taking is a fait accompli. This
is true because the government had the authority to invade
the property rights of the landowner and to appropriate
them to public use in the first instance, and the owner had
no right to abate the nuisance. His only remedy is a single
action for permanent damage to his property by reason of
the taking. The government has an easement to continue
the obstruction permanently, and whether it will continue
to maintain the obstruction, alter it, or remove it altogether
is optional with the government.

Midgett v. N.C. State Highway Comm’n, 260 N.C. 241, 249, 132 S.E.2d 599, 607

(1963), overruled in part on other grounds by Lea Co. v. North Carolina Bd. of Transp.,

308 N.C. 603, 304 S.E.2d 164 (1983) (emphases added).

¶ 24 Section 40A-51(a) imposes a two-year limitations period for bringing an inverse

condemnation action, running from the date of the alleged taking or the completion
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of construction of the taking, whichever is later. N.C. Gen. Stat. § 40A-51(a). Our

Courts have likewise held that unless landowners “shall, at the time of the occupation

of the said land, . . . apply for an assessment of said land, as provided . . . , within two

years next after said land was taken, . . . they shall be forever barred from recovering

said land, or having any assessment or compensation therefor[.]” Wright, 190 N.C.

at 572, 130 S.E. at 163.

¶ 25 Here, the record shows the utility mains were installed along Defendants’

Property more than a century ago and that the County began operating them more

than two decades ago. Most recently, the County exercised its easement rights in

2012, when Defendants permitted the County to access the sewer and water lines for

maintenance, which required the County to temporarily remove Defendants’ original

fence. By any of these measures, the time for Defendants to file an inverse

condemnation action has expired.

¶ 26 This Court has previously decided a case determining the County’s

condemnation interest in the same sewer infrastructure at issue in this case. In

Central Carolina Developers, Inc. v. Moore Water & Sewer Auth., 148 N.C. App. 564,

559 S.E.2d 230 (2001), the County was using a pipe without any direct condemnation

action having been filed or the recording of an easement on the property. Id. at 565-

67, 559 S.E.2d at 231-32. A developer, who purchased the lot but was unable to build

on it in 1998 due to the presence of the pipe, filed suit against its predecessor in
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interest and the County for trespass or alternatively inverse condemnation. Id. at

565, 559 S.E.2d at 231. The predecessor moved to dismiss the complaint on the theory

that the taking occurred when the pipe was installed prior to 1989, so the plaintiff’s

1998 lawsuit was barred by the two-year limitations period for inverse condemnation.

Id. at 565-66, 559 S.E.2d at 231. The trial court dismissed the plaintiff’s complaint

and this Court affirmed, holding the taking of the utility easement occurred sometime

prior to 1989, when the sewer line was installed. Id. at 566-67, 559 S.E.2d at 231-32.

The developer’s suit, filed at least seven years after the limitations period had run,

was therefore untimely. Id. at 567, 559 S.E.2d at 232.

¶ 27 Applicable case law supports the County’s contention that it acquired title by

taking the lines and utility easement when its predecessor in interest deeded the

system to the County and the County began operating it in 1999.5 See Huntley v.

Potter, 255 N.C. 619, 631, 122 S.E.2d 681, 689 (1961) (holding a taking of sewer and

water lines requiring compensation occurs when “the municipality . . . appropriates

5 Defendants’ contention that the County waived this argument is contrary to the
record before us. The County’s complaint specifically requested a judgment:

declaring that the County enjoys the rights of ownership,
pursuant to its power of eminent domain, of the manhole, water
and sewer mains and the easements. . . . [and] that the exclusive
remedy of Defendants to any claims for compensation for the
taking . . . is an action in inverse condemnation, which is time-
barred[.]

The County argued the same in its brief submitted to the trial court.
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them and controls them as proprietor”); Styers v. Gastonia, 252 N.C. 572, 574, 114

S.E.2d 348, 350 (1960) (holding water lines installed by a developer were taken when

they were incorporated into a city water system and “the city appropriated plaintiffs’

property to its own use”); Jackson v. City of Gastonia, 246 N.C. 404, 408, 98 S.E.2d

444, 447 (1957) (taking of sewer and water line occurs when “the city has taken over,

used and controlled said lines as if installed by it originally” (quotation marks

omitted)); Central Carolina Developers, Inc., 148 N.C. App. at 567, 559 S.E.2d at 232

(“Therefore, any ‘taking’ would have occurred when the sewer pipe was installed

across Lot 253.”).

¶ 28 Defendants contend the existence of a city sewer line on private property does

not confer an easement, citing Juhan v. Cozart, 102 N.C. App. 666, 403 S.E.2d 589

(1991). In Juhan, the defendants sold a home to the plaintiffs with a warranty

against encumbrances, not realizing an unplatted sewer line ran beneath the house.

Id. at 668-69, 403 S.E.2d at 590-91. This Court affirmed the trial court’s order

dismissing the plaintiffs’ complaint, reasoning that the sewer line was not, by itself,

evidence of an easement encumbering the property. Id. at 672, 403 S.E.2d at 592-93.

The holding in Juhan was limited in that the parties presented no evidence

concerning whether the Town of Fuquay-Varina used the pipes or claimed any

interest in an easement over the land. Id. at 670, 403 S.E.2d at 591.

¶ 29 The record here unequivocally reveals the County has continuously used and
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operated the lines on the Property for a public purpose since 1999, and the County

asserts it maintains ownership of the lines and an attendant easement. Juhan’s

limited holding is thus inapposite. To the contrary, the taking of the lines beneath

the Property has necessarily vested in the County title to an easement along the

surface of the Property to service, maintain, and repair the lines. See Central

Carolina Developers, Inc., 148 N.C. App. at 567-68, 559 S.E.2d at 232; Sanitary

District v. Canoy, 252 N.C. 749, 752, 114 S.E.2d 577, 580 (1960) (“[R]espondents

retained the fee and have a right to use the property so long as such use does not

interfere with the proper use by the petitioner for the maintenance and operation of

its sewer lines.”).

¶ 30 So, even in the absence of a recorded deed, as a matter of law the County holds

title to the utility mains under the Property, which includes title to the easement for

their maintenance and repair. We conclude the County has established it holds title

to the lines and easement at issue and that the trial court erred in awarding summary

judgment to Defendants.

¶ 31 The County sought from the trial court partial summary judgment on the issue

of the easement and asked “to have a trial as to the reasonable commercial use and

enjoyment to establish the width of the easement.” The necessary scope of the

easement, having been reserved for trial, is therefore not before us.
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III. CONCLUSION

¶ 32 For the foregoing reasons, we reverse the trial court’s grant of summary

judgment in favor of Defendants and remand the matter for: (1) entry of a partial

summary judgment order declaring the County owns title to the lines and easement

extending along Defendants’ property; and (2) a proceeding on the size and scope of

the easement and any remaining issues raised by the pleadings.

REVERSED AND REMANDED.

Judges ARROWOOD and JACKSON concur.