The North Carolina Court of Appeals recently decided a case involving a water main break that flooded many homes in Charlotte in 2014. The court decided that a single incident of a broken water main was not sufficient to allow the homeowners to sue for inverse condemnation. See Wagner v. City of Charlotte, 840 SE 2d 799 (NC Court of Appeals 2020). Here is a brief explanation of inverse condemnation and a description of the Wagner case.
Inverse Condemnation in North CarolinaUnder the doctrine of eminent domain, governments have the power to take private land/property for public use as long as they pay fair compensation for the taking. For example, the North Carolina Department of Transportation ("NCDOT") can take private land to build a public road. Normally, to take private land pursuant to eminent domain, official legal proceedings must be undertaken. To continue our example, if the NCDOT wants to take private land to build a road, the NCDOT must file legal papers with the county court and deposit what the NCDOT believes is the fair compensation for the land. In a typical eminent domain case, the government agency takes title and physical possession of the land that is taken.
However, under some circumstances, the government can take some action -- like building a dam -- that is, effectively, a taking of private land without going through the official legal eminent domain process. When this happens, pursuant to North Carolina statute, a landowner can file a lawsuit to obtain fair compensation. This is called an inverse condemnation lawsuit. It is called “inverse” because the landowner initiates the litigation, not the condemning authority. In an inverse condemnation situation, the government has not taken title or physical possession of the land.
In inverse condemnation cases, a landowner is entitled to recover money for the loss in fair market value of their land. In general, the loss in fair market value of the land/property must be caused by something more than just the location of a government facility. For example, by itself, placing a waste removal facility on adjacent land will not be grounds for an inverse condemnation lawsuit. Something "more" is necessary, like persistent odors, noxious vapors or other interference with neighbor's quiet enjoyment of their land/property. See Twitty v. State, 354 SE 2d 296 (NC Court of Appeals 1987) (placement or location of a facility is not enough for an inverse condemnation case; actual interference with use and enjoyment of neighboring property must be shown).
So, what about a water main break? A water main owned and operated by the government is clearly for public use and benefit. Further, a broken water main causing substantial flooding clearly interferes with a landowners' use and enjoyment of their property. Despite these facts being true, as noted, the North Carolina Court of Appeals said "no." A single episode of flooding caused by a water main break is not sufficient to allow the landowners to sue for inverse condemnation.
The Wagner caseAs reported in the decision, in the early morning hours of November 23, 2014, a water main pipe burst in the 4100 block of Carmel Road in Charlotte, North Carolina. Many houses on Carmel Road began to flood by 6 or 7 am, and the flooding persisted for several hours. The houses suffered extensive damage and many of the residents were forced to seek temporary alternative housing.
Seeking compensation for the damages, many of the residents sued Charlotte on the basis of inverse condemnation.
In rejecting the legal claim, the Court of Appeals distinguished the Charlotte water main break from many other cases where inverse condemnation was allowed for flooding. For example, the court discussed the case of Eller v. Board of Education of Buncombe County, 89 S.E.2d 144 (NC Supreme Court 1955) where the North Carolina Supreme Court allowed an inverse condemnation proceeding where the construction of a school building impeded the flow of a natural spring which caused persistent flooding on a neighbor's property. The Wagner court also discussed a number of other cases and concluded that, for an inverse condemnation proceeding to be allowed, the flooding must be either permanent or persistent. The single episode of flooding caused by the Charlotte water main break was neither permanent nor persistent. Thus, the Wagner court approved dismissal of the homeowners inverse condemnation claims.
Contact Experienced Mecklenburg County Land Use Attorneys TodayIf you think you may have an inverse condemnation claim because of some government action, schedule a confidential consultation with experienced and dedicated eminent domain and property law attorneys at Arnold & Smith, PLLC. Use our “Contact” page or give us a call at 704.370.2828. We handle land use, zoning and condemnation legal matters in Mecklenburg County and elsewhere in North Carolina. We have offices in Charlotte, Lake Norman, and Union County.