Town of Apex v. Rubin

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-187

No. COA20-304

Filed 4 May 2021

Wake County, No. 15-CVS-5836

TOWN OF APEX, Plaintiff,

v.

BEVERLY L. RUBIN, Defendant.

Appeal by Defendant from orders entered 21 January 2020 by Judge G. Bryan

Collins in Wake County Superior Court. Heard in the Court of Appeals 24 February

2021.

Nexsen Pruet, PLLC, by David P. Ferrell and Norman W. Shearin, for Plaintiff-

Appellee.

Fox Rothschild LLP, by Matthew Nis Leerberg and Troy D. Shelton, and

Howard, Stallings, From, Atkins, Angell & Davis, P.A., by Kenneth C. Haywood

and B. Joan Davis, for Defendant-Appellant.

Johnston, Allison & Hord, P.A., by Susanne Todd and Maisha M. Blakeney,

and Sever Storey, LLP, by Shiloh Daum, for amicus curiae North Carolina

Advocates for Justice.

John Locke Foundation, by Jonathan D. Guze, amicus curiae.

INMAN, Judge.

¶1 Our Federal and State Constitutions protect us, our homes, and our lands from

unrestrained government intrusion. Police cannot roam about our private property

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unfettered. U.S. Const. amend. IV; N.C. Const. art. I § 20. The military cannot

forcibly occupy our homes during peacetime. U.S. Const. amend. III; N.C. Const. art.

I § 31. And, most pertinent to this appeal, the State cannot take our property without

both a public purpose and payment of just compensation. U.S. Const. amend. V; N.C.

Const. art. I § 19.

¶2 Plaintiff-Appellee Town of Apex (“the Town”) asks this Court to uphold the

Town’s continuing intrusion onto the land of a private citizen through a circuitous

and strained application of North Carolina law on eminent domain and inverse

condemnations. The Town’s position, in essence and when taken to its logical

conclusion, is as follows: (1) if a municipality occupies and takes a person’s private

property for no public purpose whatsoever, that private landowner can do nothing to

physically recover her land or oust the municipality; (2) if the encroachment

decreases the property’s value, then the landowner’s sole remedy is compensation by

inverse condemnation; and (3) in all other instances, a landowner is powerless to

recover or otherwise vindicate her constitutional rights. This is not the law, nor can

it be consistent with our Federal and State Constitutions.

¶3 Defendant-Appellant Beverly L. Rubin (“Ms. Rubin”) appeals from orders

denying her motion to enforce a judgment in her favor in a direct condemnation action

and granting the Town’s motion to be relieved from that judgment. She asserts that,

having successfully recovered title to her land after the Town’s unlawful taking, she

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is entitled to repossess her property free of a sewer pipe installed by the Town. We

agree with Ms. Rubin that mandatory injunctive relief may be available to her, but

hold that it is not available in the direct condemnation action that was taken to final

judgment without a request for or adjudication concerning the availability of

injunctive relief. Instead, she may pursue mandatory injunctive relief against the

Town to remedy its continuing encroachment through a claim for trespass.

I. FACTUAL AND PROCEDURAL HISTORY

¶4 Many of the facts underlying this appeal were summarized in our prior

decision, Town of Apex v. Rubin, 262 N.C. App. 148, 821 S.E.2d 613 (2018). However,

because we now address post-judgment motions that were entered after that decision,

a brief recitation of the factual and procedural history is warranted.

1. The Direct Condemnation Action and Installation of the Sewer Pipe

¶5 Ms. Rubin owns a tract of land in rural Wake County. In 2012 and 2013, a

local real estate developer, Brad Zadell (“Mr. Zadell”), purchased several parcels to

the east and west of Ms. Rubin’s land with the intention of improving and selling

them for residential development. Rubin, 262 N.C. App. at 149, 821 S.E.2d at 614.

The western tract, known as Arcadia West, received sewer service from the Town,

while the eastern tract, Riley’s Pond, had no such access. Id. Mr. Zadell asked Ms.

Rubin if she would grant him an easement to connect Riley’s Pond to the Town’s sewer

service. Id. Ms. Rubin declined. Id.

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¶6 Undeterred, Mr. Zadell turned to the Town’s utilities director, asking for the

Town to take the sewer easement by eminent domain.1 Id. In 2015, The Town and

Mr. Zadell agreed that: (1) the Town would pursue a direct condemnation action to

seize a sewer easement across Ms. Rubin’s property; and (2) Mr. Zadell would cover

any and all costs incurred by the Town in the exercise of its eminent domain powers.

Id. at 150, 821 S.E.2d at 615. A few weeks after entering into the agreement, Mr.

Zadell contracted to sell Riley’s Pond at a $2.5 million profit. Id.

¶7 In March 2015, the Town council voted to pursue a direct condemnation action

for a sewer line easement across Mr. Rubin’s land. Id. It filed the direct

condemnation action the following month and used its statutory “quick-take” powers2

to obtain immediate title to a 40’ easement running across Ms. Rubin’s property for

the installation and maintenance of sewer lines “above, in, on, over, above, [sic] under,

through, and across” the easement area. Ms. Rubin timely filed an answer contesting

the taking as illegal and unconstitutional, but she did not pursue any injunctive relief

to restrain the Town from constructing the sewer line.

1 The Town is authorized by its charter to exercise the same eminent domain powers

granted to the North Carolina Department of Transportation found in N.C. Gen. Stat. §§ 136-

103, et seq. (2019).

2 Quick-take powers grant a condemnor “right to immediate possession” of the

condemned property “[u]pon the filing of the complaint and the declaration of taking and

deposit in court[.]” N.C. Gen. Stat. § 136-104.

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¶8 After Ms. Rubin filed her answer, and while her challenge to the condemnation

action was pending, the Town installed a sewer line within the 40’ easement. The

trial court later resolved Ms. Rubin’s challenge to the condemnation and entered a

judgment (the “Judgment”) concluding the taking was not for a public purpose, even

though the sewer line would serve the Riley’s Pond subdivision. The Judgment

declared the Town’s “claim to [Ms. Rubin’s] property by Eminent Domain . . . null and

void" and dismissed the direct condemnation action. The Judgment was left

undisturbed following a lengthy series of post-judgment motions and appeals. See id.

at 153, 821 S.E.2d at 616-17 (2018), temp. stay dissolved, disc. rev. denied, 372 N.C.

107, 825 S.E.2d 253 (2019).

2. Litigation Following the First Appeal

¶9 After this Court’s decision in the prior appeal, Ms. Rubin filed a combined

motion and petition for writ of mandamus asking the trial court to compel the Town

to remove the sewer line. Ms. Rubin sought this relief under several theories,

including: (1) N.C. Gen. Stat. § 136-114 (2019), which gives trial courts in direct

condemnation actions “the power to make all the necessary orders and rules of

procedure necessary to carry into effect the object and intent of this Chapter[;]” (2)

N.C. Gen. Stat. § 1-302 (2019) and Rule 70 of the North Carolina Rules of Civil

Procedure, which collectively authorize trial courts to compel a party to comply with

a judgment directing the conveyance of land; (3) by writ of mandamus to compel the

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Town to perform the act of removing the pipes; and (4) through the trial court’s

inherent powers to enforce its own orders.3

¶ 10 The Town responded to Ms. Rubin’s motion in two ways. First, it filed a motion

for relief in the direct condemnation action on the basis that the Judgment voided the

action ab initio, extinguished the trial court’s jurisdiction, and rendered the

installation of the sewer line a separate inverse condemnation. Second, the Town

filed a new declaratory judgment lawsuit seeking to declare the sewer pipe

installation an easement by inverse condemnation, limit Ms. Rubin’s relief to that

singular remedy, and enjoin her from removing the sewer line.

¶ 11 The trial court heard motions in the two actions jointly and ruled for the Town

in each. In the direct condemnation action, the trial court denied Ms. Rubin’s motion

to enforce the Judgment, denied Ms. Rubin’s petition for writ of mandamus, and

granted the Town’s motion for relief from the Judgment. In the declaratory judgment

action, the trial court denied a motion to dismiss filed by Ms. Rubin and entered a

3 Ms. Rubin’s motion asserted additional bases for injunctive relief. We do not address

those additional bases because Ms. Rubin has not argued them in her briefs on appeal. See

N.C. R. App. P. 28(a) (2021) (“Issues not presented and discussed in a party’s brief are deemed

abandoned.”).

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preliminary injunction prohibiting Ms. Rubin from disturbing the sewer line. This

decision addresses only the direct condemnation action.4

3. The Order Denying Ms. Rubin Injunctive Relief

¶ 12 In the first of two orders in the direct condemnation action, the trial court

denied Ms. Rubin’s motion for injunctive relief, based in part on the following facts:

4. [Ms. Rubin] did not plead any claim for relief entitling

her to the relief requested in the Motion. [Ms. Rubin] could

have requested the Court grant her injunctive relief before

the sewer pipe was installed under her property, but she

did not do so. [Ms. Rubin] did not request injunctive relief

from the Court prior to the installation of the sewer line to

prevent construction . . . and did not request injunctive

relief to close or remove the sewer pipe at the all other

issues hearing before the Court.

5. Although the sewer pipe had been installed for

approximately one year prior to the all issues hearing . . .

the Judgment does not address the actual installation,

maintenance and use of the sewer pipe under [Ms. Rubin]’s

property and does not require removal

....

11. On or about 27 July 2015 the Town constructed an

underground sewer line 18 feet under the entire width of a

narrow portion of Rubin’s property.

....

14. The sewer line was installed prior to the entry of the

4 The declaratory judgment action is discussed in greater detail in Town of Apex v.

Rubin, No. COA20-305, ___ N.C. App. ___, 2021-NCCOA-___ (filed 4 May 2021), filed

contemporaneously with this opinion.

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Judgment, remains in place and in use, and serves

approximately fifty (50) residential homes and/or lots in

the Riley’s Pond Subdivision . . . .

¶ 13 The trial court also made several findings and conclusions of law5 interpreting

the effect of the Judgment:

2. The Judgment does not order the town to do any of the

acts specified in Rule 70 of the Rules of Civil Procedure.

3. The Judgment does not require the return or delivery of

real property as per N.C. Gen. Stat. § 1-302.

The trial court also entered conclusions of law rejecting Ms. Rubin’s arguments for

injunctive relief and concluding that the Town had taken an easement by inverse

condemnation:

1. The Judgment does not afford to [Ms. Rubin] any of the

relief which she seeks in the Motion. State Highway

Commission v. Thornton, 271 N.C. 227, 156 S.E.2d 248

(1967).

5 The parties dispute whether the trial court’s interpretation of the Judgment is a

question of law or fact. Determinations as to the “legal effect of [an] order” are conclusions

of law, which we review de novo. Delozier v. Bird, 125 N.C. 493, 34 S.E.2d 643, 643 (1899);

see also N.C. Farm Bureau Mut. Ins. Co. v. Cully’s Motorcross Park, Inc., 366 N.C. 505, 512,

742 S.E.2d 781, 786 (2013) (“[C]onclusions of law are reviewed de novo.” (citation omitted)).

To the extent the trial court’s particular interpretations require application of legal principles

to the facts, they are mixed questions of law and fact. See, e.g., Brown v. Charlotte-

Mecklenburg Bd. of Ed., 269 N.C. 667, 670, 153 S.E.2d 335, 338 (1967) (holding mixed

questions of law and fact arise when “[t]he determination . . . requires an application of

principles of law to the determination of facts”). We are not bound by the labels given these

determinations by the trial court in conducting our analysis. In re David A. Simpson, P.C.,

211 N.C. App. 483, 487-88, 711 S.E.2d 165, 169 (2011). The standards of review we apply to

specific aspects of the trial court’s orders are discussed below in the Analysis Section of this

opinion.

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....

7. A writ of mandamus is inappropriate because [Ms.

Rubin] has failed to show that she has a clear legal right to

demand removal of the sewer line and that the Town is

under a plainly defined, positive legal duty to remove it.

Mandamus is appropriate to compel the performance of a

ministerial act but not to establish a legal right. Meares v.

Town of Beaufort, 193 N.C. App. 49, 667 S.E.2d 224 (2008);

Mears v. Board of Education, 214 N.C. 89, 91, 197 S.E.2d

752, 753 (1938).

8. The Court has the inherent authority to enforce its own

orders. However, the Court is not authorized and refuses

to expand this Judgment beyond its terms, read in

additional terms, and/or order mandatory injunctive relief

that [Ms. Rubin] did not request or plead. State Highway

Commission v. Thornton, 271 N.C. 227, 156 S.E.2d 248

(1967).

9. Regardless of the Court’s authority, the Court does not

read the Judgment the way [Ms. Rubin] suggests and the

Court does not agree the Judgment expressly or implicitly

requires removal of the sewer line. [Ms. Rubin] could have

requested the Court grant her injunctive relief before the

sewer pipe was installed under her property but she did not

do so. The Court will not now require the Town to remove

the sewer line.

....

11. Given the Court’s dismissal of the condemnation

complaint as null and void, the installation of the

underground sewer line by the Town on 27 July 2015 was

a taking of [Ms. Rubin]’s property by the Town that was

not subject to a condemnation complaint, and thus was an

inverse condemnation of an underground sewer

easement. . . .

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13. [Ms. Rubin]’s allegations that the condemnation

complaint resulted in a constitutional violation and [Ms.

Rubin]’s comments about fairness do not support or provide

a basis for the granting of the Motion. Further, the

Supreme Court in [Wilkie v. City of Boiling Springs, 370

N.C. 540, 809 S.E.2d 853 (2018)], in spite of addressing

constitutional issues with condemnations, held that a

landowner has a claim for just compensation regardless of

whether a taking is for a public or private purpose. The

Supreme Court did not state that the landowner had a

claim for permanent injunctive relief. Where there is an

adequate remedy at law, injunctive relief, which is what

[Ms. Rubin] seeks, will not be granted.

14. [Ms. Rubin] has an adequate remedy at law—i.e.

compensation for inverse condemnation. . . . The Town’s

pending declaratory judgment action . . . provides [Ms.

Rubin] an avenue to pursue her remedy at law for the

inverse condemnation of the sewer easement—

compensation.

15. As such, the Court declines to enforce the Judgment as

[Ms. Rubin] requests and declines to issue a writ of

mandamus.

4. The Order Granting Relief from Judgment

¶ 14 The trial court’s second order in the direct condemnation action granted the

Town’s motion for relief from the Judgment. In that order, the trial court made

findings of fact and conclusions of law consistent with several of those made in the

order denying Ms. Rubin’s motion to enforce the Judgment, including conclusions

that an inverse condemnation had occurred and Ms. Rubin’s only avenue for relief

was an inverse condemnation claim for money damages. The second order added

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several conclusions of law explaining why the Town was entitled to relief from the

Judgment:

3. It is just and equitable to allow the Town relief from the

prospective application of the Judgment as it relates to the

underground sewer pipe and corresponding easement.

4. [Ms. Rubin’s] failure to seek and obtain injunctive relief

prior to the construction of the sewer pipe and the Town’s

acquisition of the sewer easement by inverse condemnation

renders the Judgment moot as to the installation of the

sewer pipe and corresponding easement. . . .

5. The Judgment’s dismissal of the condemnation

proceeding had no effect on the rights inversely taken. . . .

6. At the time of entry of the Judgment, the question of

whether the Town had the authority to condemn the sewer

easement described in the original condemnation action

was moot—specifically as to the installation of the sewer

pipe and inversely condemned easement.

7. Since the Judgment against the Town is moot, the Court

grants the Town relief from the prospective application of

the Judgment as it relates to the existence of the

underground sewer pipe and corresponding easement on

[Ms. Rubin’s] property.

8. The Judgment is void as it relates to the installed sewer

pipe and corresponding easement because the trial court

did not have jurisdiction over [these] issues at the time of

the entry of the Judgment. The issue of whether the Town

could maintain a sewer line across [Ms. Rubin’s] property

no longer existed at the time that Judgment was entered.

[Ms. Rubin] did not seek an injunction prior to construction

and the Town had already constructed the sewer

easement. . . .

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9. Further the Judgment found the original condemnation

complaint null and void and dismissed it; it is as if it was

never filed. Therefore, the Town physically invaded [Ms.

Rubin’s] property to construct a public sewer line on 27

July 2015 without a condemnation action—which under

North Carolina law is an inverse taking.

10. Prior to the entry of the Judgment on 18 October 2016,

the Town had already inversely taken and owned the sewer

easement across [Ms. Rubin’s] property on 27 July 2015.

Since the sewer easement had been inversely taken prior

to the entry of the Judgment, the court lacked subject

matter jurisdiction to enter the Judgment to the extent the

Judgment is interpreted to negatively affect the installed

sewer pipe and corresponding easement.

11. The absence of jurisdiction means the Judgment is

void. A void judgment is a legal nullity. . . .

12. Since the Judgment against the Town is void as to [Ms.

Rubin’s] challenge to the installed sewer pine and

corresponding easement, the Town should be granted the

prospective relief from the Judgment pursuant to Rule

60(b)(4).

13. In addition, the Town is given prospective relief from

the judgment pursuant to Rule 60(b)(6), as Rule 60(b)(6)

may be properly employed to grant relief from a judgment

affected by a subsequent change in the law. . . .

14. In the Judgment, the Court stated that the paramount

reason for the taking of the sewer easement described in

the complaint was for a private purpose and the public’s

interest was merely incidental. However, prior to entry of

judgment, the Town had already constructed the sewer

pipe and acquired the sewer easement by inverse

condemnation.

15. In 2018, the North Carolina Supreme Court reversed

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the Court of Appeals and ruled that public use or purpose

is not an element of an inverse condemnation claim. . . .

Rule 60(b)(6) may be properly employed to grant relief from

a judgment affected by a subsequent change in the law. . . .

16. As a result of the Wilkie decision from the Supreme

Court, the legal basis for the Judgment no longer exists to

the extent the Judgment is interpreted to negatively affect

the installed sewer pipe and corresponding easement. [Ms.

Rubin] alleges that the Town took the sewer easement on

her property for a private purpose and thus lacked

authority to take her property. However, public purpose is

not an element of inverse condemnation. Moreover, [the]

Town acquired ownership of the sewer easement on 27 July

2015 prior to entry of the Judgment. All easement rights

in the property transferred to the Town and were owned by

it prior to entry of Judgment. Consequently, [the] Town

should be granted relief from Judgment.

Ms. Rubin timely noticed an appeal from both orders. Following oral argument, both

parties filed supplemental briefs with this Court.6

II. ANALYSIS

¶ 15 Ms. Rubin argues the trial court erred in concluding: (1) the installation of the

pipe resulted in an inverse condemnation; (2) the inverse condemnation rendered the

Judgment moot and void; (3) injunctive relief, either in the form of a writ of

mandamus or otherwise, was unavailable to enforce the Judgment; and (4) inverse

6 Ms. Rubin submitted her supplemental arguments through a motion for leave to

submit a supplemental response, and the Town provided its additional briefing in its

response to Ms. Rubin’s motion. We allow Ms. Rubin’s motion and consider these

supplemental materials submitted by the parties.

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condemnation is the only available remedy for the Town’s constitutional violation.

We address the applicable standard of review before addressing each argument in

turn.

1. Standard of Review

¶ 16 Findings of fact, when left unchallenged on appeal or supported by competent

record evidence, are binding on this Court. Bell v. Mozley, 216 N.C. App. 540, 543,

716 S.E.2d 868, 871 (2011). Conclusions of law are generally reviewable de novo,

Sisk v. Transylvania Cmty. Hosp., Inc., 364 N.C. 172, 180, 695 S.E.2d 429, 435 (2010),

and mixed questions of law and fact are fully reviewable on appeal, Hinton v. Hinton,

250 N.C. App. 340, 347, 792 S.E.2d 202, 206 (2016). However, when the trial court

reaches a legal conclusion on whether to exercise its discretionary inherent authority,

“we need determine only whether they are the result of a reasoned decision.” Sisk,

364 N.C. at 435, 695 S.E.2d at 180 (citations omitted); see also In re Cranor, 247 N.C.

App. 565, 573, 786 S.E.2d 379, 385 (2016) (“The proper standard of review for acts by

the trial court in the exercise of its inherent authority is abuse of discretion.” (citation

omitted)). “When discretionary rulings are made under a misapprehension of the

law, this may constitute an abuse of discretion,” Gailey v. Triangle Billiards & Blues

Club, Inc., 179 N.C. App. 848, 851, 635 S.E.2d 482, 484 (2006) (citations omitted), and

“the orders or rulings of the trial judge may be vacated and the case remanded for

further proceedings, modified or reversed, as the rights of the parties and the

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applicable law may require,” State v. Cornell, 281 N.C. 20, 30, 187 S.E.2d 768, 774

(1972) (citations omitted).

2. Installation of the Pipe Did Not Vest the Town with Title as a Matter of Law

¶ 17 In both orders, the trial court concluded that the installation of the pipe

resulted in an inverse condemnation of a sewer easement on Ms. Rubin’s property

independent of the direct condemnation action. We agree with Ms. Rubin that the

trial court erred in this respect.

¶ 18 Our Supreme Court has recently described inverse condemnations as follows:

“Inverse condemnation” is a term often used to designate 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.

Wilkie v. City of Boiling Spring Lakes, 370 N.C. 540, 552, 809 S.E.2d 853, 861 (2018)

(cleaned up) (emphasis added).7 This general description accords with the right of

action afforded to landowners by statute. N.C. Gen. Stat. § 136-111 authorizes

inverse condemnation suits by landowners against the Department of Transportation

when “land or a compensable interest therein has been taken by . . . the Department

7 Consistent with our Supreme Court’s current practice, see, e.g., In re G.G.M., ___

N.C. ___, ___, 2021-NCSC-25, ¶ 22 (2021), we use the parenthetical “(cleaned up)” to denote

removal of extraneous punctuation and citations without alteration of the quoted passage’s

meaning. See generally Jack Metzler, Cleaning Up Quotations, 18 J. Appellate Prac. &

Process 143 (2017) (discussing the use and purposes of the “cleaned up” parenthetical).

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of Transportation and no complaint and declaration of taking has been filed.” So

inverse condemnation is a claim assertable by landowners against a government

entity “which forces 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, 302,

172 S.E.2d 1, 8 (1970) (quotation marks and citation omitted).

¶ 19 Although caselaw uniformly establishes that inverse condemnation claims

inure in favor of landowners against government entities that have declined to pursue

direct condemnation, the Town maintains that its installation of the sewer pipe—and

subsequent defeat in the direct condemnation action—mean that the Town can

compel a determination—against Ms. Rubin’s express interest—that it took title to a

sewer easement by inverse condemnation. The Town specifically asserts that: (1) the

Judgment dismissing the condemnation action voided the condemnation ab initio;

and (2) the installation of the sewer pipe therefore amounted to a separate intrusion

vesting title in the Town through inverse condemnation. The Town’s argument is not

supported by the facts or the law.

¶ 20 Upon filing its direct condemnation action, the Town took legal title to a 40’-

wide sewer easement across Ms. Rubin’s property through a statutory “quick take”

provision. N.C. Gen. Stat. § 136-104 provides that title to property, “together with

the right to immediate possession” of the land, vests in the condemnor upon the filing

of its complaint, the declaration of taking, and deposit of a bond with the trial court.

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Title to the easement at issue in this case included the right “to construct . . . a system

of . . . pipes . . . under, through, and across” the easement area.

¶ 21 The Town entered onto Ms. Rubin’s property and installed a sewer line within

the 40’ strip under the rights granted to it by the easement obtained at the outset of

the direct condemnation action.8 That the Judgment would later decree the Town’s

“claim to [Ms. Rubin]’s property by Eminent Domain . . . null and void” does not

obviate, as a factual matter, that the Town installed the pipe under the “quick take”

title granted to the Town in the direct condemnation action.

¶ 22 As for whether the installation of the sewer pipe and the Judgment’s decree

vested the Town with title by inverse condemnation as a matter of law, two pertinent

cases, State Highway Comm’n v. Thornton, 271 N.C. 227, 156 S.E.2d 248 (1967), and

Town of Midland v. Morris, 209 N.C. App. 208, 704 S.E.2d 329 (2011), preclude a

holding in favor of the Town on this issue.

¶ 23 In Thornton, the North Carolina State Highway Commission (the

“Commission”) filed a direct condemnation action to construct a roadway across land

belonging to the Thorntons. 271 N.C. at 229, 156 S.E.2d at 250. The Commission

began construction five days after filing its action and, by the time the Thorntons

8Indeed, the record includes an affidavit from the Town’s assistant manager and

former utilities director stating that the direct condemnation action conveyed title to the 40’

easement for completion of a “Gravity Sewer Project” and that the Gravity Sewer Project was

completed through installation of the sewer pipe at issue here.

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filed their answer challenging the taking as for a non-public purpose, construction

was 96 percent complete. Id. at 230, 156 S.E.2d at 251. The matter proceeded to trial

after the road was entirely finished, and the trial court entered a judgment in favor

of the Thorntons declaring the taking as not for a public purpose. Id. at 231-32, 156

S.E.2d at 251-52. On appeal to the Supreme Court, the Commission contended that

the construction of the road precluded the Thorntons from protesting the taking. Id.

at 237, 156 S.E.2d at 256. Though the Supreme Court ultimately reversed the trial

court and upheld the taking as for a public purpose, it did so only after rejecting this

argument by the Commission:

Even if the Commission now finds itself embarrassed by its

having constructed the road prematurely, upon its own

assumption that the defendants would not assert a defense

which the [direct condemnation] statute authorizes (i.e.,

the Commission’s lack of power to condemn the land), the

Commission may not assert such embarrassment as a bar

to this right of the defendants. The Commission may not,

by precipitate entry and construction, enlarge its own

powers of condemnation . . . .

Id. (emphasis added). The Supreme Court also plainly held that the Thorntons were

“not estopped to assert that the land in question still belongs to them, free of any right

of way across it[,]” id. at 238, 136 S.E.2d at 257 (emphasis added), and, in the event

they prevailed, could assert “whatever rights they may have against those who have

trespassed upon their land and propose to continue to do so.” Id. at 240, 156 S.E.2d

at 258. Thornton establishes that completion of a project subject to a direct

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condemnation action does not preclude a return of title—free and clear of any interest

held by the State—to the prevailing landowner.

¶ 24 This Court reached a similar result in Midland, when the Town of Midland

filed a direct condemnation action to construct a natural gas pipeline across private

property. Midland, 209 N.C. App. at 211-13, 704 S.E.2d at 333-34. The private

landowners argued the pipeline was not for a public purpose and moved for a

preliminary injunction. Id. at 213, 704 S.E.2d at 334. The trial court denied the

motion for a preliminary injunction and granted summary judgment for Midland. Id.

Pending the property owners’ appeal to this Court, Midland completed the pipeline

and argued that the appeal was moot because construction was complete. Id. We

disagreed, holding that “if this Court finds in their favor, [the] [p]roperty [o]wners

will be entitled to relief . . . in the form of return of title to the land.” Id. at 213-14,

704 S.E.2d at 334 (citing Thornton, 271 N.C. at 241, 156 S.E.2d at 259) (additional

citations omitted). We further explained:

We are wholly unpersuaded by Midland’s argument that,

even where a city flagrantly violates the statutes governing

eminent domain, that city can obtain permanent title to the

land by fulfilling the purpose of a condemnation before

final judgment on the validity of condemnation is rendered.

Id. at 214, 704 S.E.2d at 335.

¶ 25 Both Thornton and Midland establish that a government body cannot take title

to private property for a non-public purpose simply by filing a direct condemnation

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action and completing the construction project. In this case, the Town’s position that

it took title to a sewer easement by inverse condemnation through construction of the

sewer pipe during the pendency of the direct condemnation action is irreconcilable

with Thornton’s prohibition against the enlargement of the government’s

condemnation powers “by precipitate entry and construction.” 271 N.C. at 237, 156

S.E.2d at 256. It also conflicts with this Court’s holding in Midland that title reverts

to the landowner after a successful challenge to a condemnation action irrespective

of whether the project was completed, as a “city [cannot] obtain permanent title to

the land by fulfilling the purpose of a condemnation before final judgment . . . .” 209

N.C. App. at 214, 704 S.E.2d at 335. We therefore hold the trial court erred in its

conclusions of law, found throughout both orders, establishing that the Town took an

easement by inverse condemnation when it completed the installation of the sewer

pipe across Ms. Rubin’s property.

¶ 26 We are also unpersuaded by the Town’s argument that Wilkie supports the

trial court’s conclusions to the contrary. That decision is distinguishable for at least

three reasons. First, Wilkie involved an inverse condemnation claim brought by the

landowners, i.e., the parties with the right to bring an inverse condemnation claim

against the government. 370 N.C. at 552, 809 S.E.2d at 861-62; see also N.C. Gen.

Stat. § 136-111 (2019) (authorizing a party “whose land . . . has been taken” to file a

statutory inverse condemnation claim); Ferrell v. Dep’t of Transp., 104 N.C. App. 42,

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46, 407 S.E.2d 601, 604 (1991) (observing that “property owners have a constitutional

right to just compensation for takings” (citation omitted) (emphasis added)). Second,

Wilkie did not involve the completion of a project subject to a disputed direct

condemnation, as occurred in both Thornton and Midland. Lastly, though Wilkie

held that landowners do not need to show that the taking was for a public purpose to

prevail on an inverse condemnation claim, it did so in part because the public purpose

requirement serves as a shield to protect the landowner from government intrusion

rather than as a sword to cut away private property rights. 370 N.C. at 552-53, 809

S.E.2d at 862. To adopt the Town’s interpretation of Wilkie would weaponize that

decision and deprive private property owners of the public purpose protection. This

we will not do.

¶ 27 The Town’s theory of the law would also open the door to numerous

constitutional harms. For example, under the Town’s theory, a municipality could

pursue a direct condemnation action to pave a landowner’s gravel driveway for no

public purpose whatsoever, even if the landowner, in the exercise of his private

property rights and out of a personal preference for gravel, had never sought to

increase the value of his lot by paving the driveway. Then suppose, akin to Thornton,

the municipality paved the landowner’s driveway before the landowner filed an

answer. If the municipality voluntarily dismissed its condemnation action or lost on

the merits at trial, the theory that inverse condemnation damages were the property

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owner’s sole remedy would preclude relief for the municipality’s flagrant violation of

the landowner’s constitutional rights, as an inverse condemnation action must show

both an intrusion and “that the interference caused a decrease in the fair market

value of [the property owner’s] land as a whole.” Kirby v. N.C. Dep’t of Transp., 368

N.C. 847, 856, 786 S.E.2d 919, 926 (2016). We do not believe the law of inverse

condemnation can be used to facilitate such an abuse of the government’s eminent

domain power.

3. The Judgment Is Not Moot

¶ 28 We further hold that the trial court erred in concluding the Judgment is moot.

The trial court reached this conclusion in part on the basis that the Town took title

to the easement by inverse condemnation. As explained supra, we hold that no such

permanent vesting of title in the Town has occurred. If the completion of the pipeline

in Midland did not preclude a return of title upon a final determination that the direct

condemnation was not pursued for a public purpose, 209 N.C. App. at 213-14, 704

S.E.2d at 334, the Town’s completion of the sewer line cannot moot Ms. Rubin’s

judgment to that effect.

4. The Judgment is Not Void

¶ 29 The trial court also erred in concluding that the Judgment was void “as it

relates to the installed sewer pipe and corresponding easement because the trial court

did not have jurisdiction over these[] issues at the time of the entry of the Judgment.”

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The trial court premised this legal conclusion on its erroneous conclusion that an

inverse condemnation had already occurred. As we have explained, the Town’s direct

condemnation action and installation of the sewer pipe did not automatically vest it

with title to an easement by inverse condemnation after the trial court determined

that the taking was not for a public purpose, and Ms. Rubin is entitled to pursue relief

despite completion of the project. See Thornton, 271 N.C. at 238, 156 S.E.2d at 257;

Midland, 209 N.C. App. at 213-14, 704 S.E.2d at 334.

¶ 30 During the direct condemnation action, The Town maintained that it had

installed the pipe pursuant to the easement obtained through its “quick take” powers.

The trial court, in resolving the dispute raised by the direct condemnation complaint

and Ms. Rubin’s answer contesting it, therefore had jurisdiction to determine whether

the easement taken by the Town constituted a lawful taking for a public purpose

irrespective of the installation of the sewer pipe. The Judgment’s resolution of that

issue in favor of Ms. Rubin and against the Town did not divest the trial court of

jurisdiction to enforce the judgment. See, e.g., Wildcatt v. Smith, 69 N.C. App. 1, 11,

316 S.E.2d 870, 877 (1984) (“It is . . . true that while a court loses jurisdiction over a

cause after it renders a final decree, it retains jurisdiction to correct or enforce its

judgment.” (citations omitted)). We hold that the Judgment, contrary to the Town’s

claim that it “is void as to Rubin’s ability to contest the installed sewer line and

corresponding easement,” was not rendered void in any respect by the installation of

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the sewer line. As our Supreme Court held in Thornton, Ms. Rubin is “not estopped

to assert that the land in question still belongs to [her], free of any right of way across

it,” 271 N.C. at 238, 156 S.E.2d at 257, and she may seek to vindicate “whatever rights

[she] may have against those who have trespassed upon [her] land and propose to

continue to do so,” id. at 240, 156 S.E.2d at 258, despite the sewer pipe’s construction.

¶ 31 Because the Judgment was neither moot nor void and the Town has not taken

title by inverse condemnation, we reverse the trial court’s order granting the Town

relief from the Judgment.

5. The Effect of the Judgment

¶ 32 We next address what effect the Judgment has and whether it affords Ms.

Rubin a right to obtain previously unpled mandatory injunctive relief as a matter of

law. We hold, following Thornton and Midtown, that the Judgment reverted title to

Ms. Rubin in fee, restoring to her exclusive rights in the tract and divesting the Town

of any legal title or lawful claim to encroach on it. See Thornton, 271 N.C. at 238, 156

S.E.2d at 257 (“The [Thorntons] are not estopped to assert that the land in question

still belongs to them, free of any right of way across it.”); Midland, 209 N.C. App. at

213-14, 704 S.E.2d at 334 (“[I]f this Court finds in their favor, [the] [p]roperty

[o]wners will be entitled to relief . . . in the form of return of title to the land.”).

¶ 33 But because Ms. Rubin did not seek mandatory injunctive relief in the direct

condemnation action, she is not entitled to that remedy by the plain language of the

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Judgment. See Wildcatt, 69 N.C. App. at 11, 316 S.E.2d at 877 (holding that a trial

court’s jurisdiction after final judgment is generally limited to enforcing the

judgment). Ms. Rubin’s answer and defense in the direct condemnation action

asserted that the Town’s taking of a 40’ easement to construct a sewer line was

beyond the constitutional exercise of the Town’s eminent domain powers. The trial

court agreed, concluded that the taking was unconstitutional, and rendered its

Judgment declaring null and void both the direct condemnation action and the Town’s

“quick take” title to the easement. The Judgment, given the issues raised before the

trial court, did nothing more than that.

¶ 34 We acknowledge that mandatory injunctive relief is available as an ancillary

remedy to an action resolving title to land. See English v. Holden Beach Realty Corp.,

41 N.C. App. 1, 13, 254 S.E.2d 223, 234 (1979). But a mandatory injunction is

available as ancillary relief only if it has been requested while the principal action is

pending. See Jackson v. Jernigan, 216 N.C. 401, 403-04, 5 S.E.2d 143, 145 (1939)

(noting mandatory injunctive relief is available as an ancillary remedy to a continuing

trespass in an action resolving title “to protect the subject of the action against

destruction or wrongful injury until the legal controversy has been settled” but it is

unavailable “when it is not in protection of some right being litigated” (emphasis

added)). Ms. Rubin failed to seek a mandatory injunction while the direct

condemnation action was pending. Mandatory injunctive relief falls outside the scope

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of the Judgment. For this reason, the trial court did not abuse its discretion in

declining to exercise its inherent authority to enforce the Judgment in the manner

Ms. Rubin requested.

¶ 35 Ms. Rubin asserts Thornton held that dismissal of a direct condemnation

action is equivalent to a mandatory injunction requiring restoration of the property

to its former condition. She misreads Thornton. There, as previously discussed, the

Commission condemned the Thorntons’ land; though they protested the action by

asserting it was not for a public purpose, they did not seek to enjoin construction. 271

N.C. at 229-31, 156 S.E.2d at 250-52. After the road was complete, the trial court

ruled that the condemnation was not for a public purpose and entered a judgment

“permanently restraining [the Commission] (and enjoin[ing] [it]) from proceeding

with the condemnation and appropriation of [the Thorntons’] lands.” Id. at 235, 156

S.E.2d at 255 (quotation marks omitted). Our Supreme Court struck down the trial

court’s judgment. Id. at 236, 156 S.E.2d at 255. The Court drew a line between

injunctive relief to halt construction and injunctive relief to halt a condemnation

proceeding:

An injunction against the institution or maintenance of

condemnation proceedings, as distinguished from an

injunction to restrain construction, is not proper[l]y issued,

however, where the ground asserted therefor is one which

the landowner may assert as a defense in the

condemnation proceeding itself, for, in that event, the

landowner has an adequate remedy at law.

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Id. (citation omitted). The Supreme Court held that because the Thorntons’ defense

would mandate dismissal of the direct condemnation proceeding, an injunction

prohibiting the proceeding from continuing would be redundant. Id. Thornton

establishes that it is unnecessary to enjoin a proceeding that has been extinguished

by dismissal; Thornton does not hold that dismissal of a condemnation action is

equivalent to a mandatory injunction to undo the construction and restore the land.

¶ 36 Ms. Rubin further cites prior decisions from this Court, as well as from other

jurisdictions, to support her assertion that the Judgment directly affords mandatory

injunctive relief requiring the Town to remove the sewer pipe irrespective of her

failure to raise the issue in the direct condemnation action. None of the cases she

cites—with one exception—addresses whether construction completed by the

condemnor during the pendency of the direct condemnation action must be removed

if the contesting landowner prevails. See, e.g., Midland, 209 N.C. App. at 213-14, 704

S.E.2d at 334 (holding a prevailing landowner in a direct condemnation action is

“entitled to relief . . . in the form of return of title to the land” (emphasis added)); In

re Rapp, 621 N.W.2d 781, 784 (Minn. 2001) (holding that a prevailing landowner is

entitled to “relief in the form of the return of his property” notwithstanding the

government’s completion of construction).

¶ 37 In the one North Carolina decision Ms. Rubin cites in which the trial court

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issued a mandatory injunction in a direct condemnation action, the landowners

requested that remedy by counterclaim during the pendency of the action and the

injunction was not challenged on appeal. City of Statesville v. Roth, 77 N.C. App. 803,

805-06, 336 S.E.2d 142, 143 (1985). As explained below, our Supreme Court has more

recently held that such injunctive relief is generally not available against the State.

See Clark v. Asheville Contracting Co., Inc., 316 N.C. 475, 485-86, 342 S.E.2d 832,

838 (1986) (holding injunctive relief was unavailable against the Department of

Transportation for an occupation of private property that was not for a public

purpose).

¶ 38 We also are unpersuaded by Ms. Rubin’s reliance on N.C. Gen. Stat. §§ 40A-

12, 1-302, and Rule 70 of the North Carolina Rules of Civil Procedure. N.C. Gen.

Stat. § 40A-12 provides that “[w]here the procedure for conducting an action under

this Chapter is not expressly provided for in this Chapter or by the statutes governing

civil procedure . . . , the judge before whom such proceeding may be pending shall

have the power to make all the necessary orders and rules of procedure necessary to

carry into effect the object and intent of this Chapter.” Here, Ms. Rubin seeks more

than just a procedural ruling; she seeks the additional substantive right to compel

removal of the Town’s sewer pipe by order of the trial court. As we have explained,

mandatory injunctive relief is ancillary to—and thus exceeds—the ordinary relief

afforded by a judgment resolving a dispute as to title. See English, 41 N.C. App. at

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13, 254 S.E.2d at 234 (noting mandatory injunctive relief is ancillary to an action

seeking to resolve disputes of title and possession of land).

¶ 39 N.C. Gen. Stat. § 1-302 allows enforcement of “a judgment [that]

requires . . . the delivery of real . . . property” and Rule 70 allows a trial court to

order the conveyance of title “[i]f a judgment directs a party to execute a conveyance

of land[.]” The Judgment in this case does neither. It simply restores title to Ms.

Rubin. With title in hand, she is left to pursue the “rights [she] may have against

those who have trespassed upon [her] land and propose to continue to do so.”

Thornton, 271 N.C. at 240, 156 S.E.2d at 258.

¶ 40 Ms. Rubin further proposes, relying on Thornton, that the Judgment as a

matter of law established her right to eject the Town by writ of mandamus. While

mandatory injunctive relief may be available to her through a trespass claim for the

Town’s continuing encroachment, the Judgment does not provide that relief. A

mandatory injunction is available only after “consider[ation] [of] the relative

convenience-inconvenience and the comparative injuries to the parties.” Clark, 316

N.C. at 488, 342 S.E.2d at 839 (citation omitted).9 This Court has described that

balancing test as follows:

9 This is in contrast to encroachment actions between private landowners; because

neither party possesses the right to private eminent domain, the trespasser cannot be

compelled to buy the land she has unlawfully built upon and the injured landowner cannot

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Factors to be considered are whether the [trespassing]

owner acted in good faith or intentionally built on the

[injured party’s] land and whether the hardship incurred

in removing the structure is disproportionate to the harm

caused by the encroachment. Mere inconvenience and

expense are not sufficient to withhold injunctive relief. The

relative hardship must be disproportionate.

Williams, 82 N.C. App. at 384, 346 S.E.2d at 669 (citing Dobbs, Remedies, § 5.6

(1973)). If Ms. Rubin establishes the Town’s trespass and its liability therefor, the

trial court may grant mandatory injunctive relief only after weighing the equities as

set forth above. See Clark, 316 N.C. at 488, 342 S.E.2d at 839.

¶ 41 Because a writ of mandamus is available only to enforce an established right,

and the Judgment in this case did not establish the right Ms. Rubin seeks to enforce,

she is not entitled to a writ of mandamus. See Ponder v. Joslin, 262 N.C. 496, 504,

138 S.E.2d 143, 149 (1964) (“The function of the writ is . . . not to establish a legal

right . . . .”).

6. Mandatory Injunctive Relief is Available by Separate Trespass Claim

¶ 42 The Judgment does not provide the Town an easement by inverse

condemnation as a matter of law. Ms. Rubin cannot be compelled to surrender title

to the Town. The Judgment also does not afford Ms. Rubin the mandatory injunctive

be compelled to sell the property encumbered by the encroachment. In such a circumstance,

mandatory injunctive relief to destroy the encroachment is the only relief available and will

be awarded as a matter of law. Williams v. South & South Rentals, Inc., 82 N.C. App. 378,

384, 346 S.E.2d 665, 669 (1986).

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relief she seeks. The question remains whether the trial court correctly concluded

that the Judgment precluded mandatory injunctive relief. We hold that the trial

court erred in this respect. While Ms. Rubin is not entitled to post-judgment

mandatory injunctive relief in the direct condemnation action, she may bring a

trespass claim against the Town in pursuit of the mandatory injunctive relief she

seeks. We therefore vacate the trial court’s orders insofar as they preclude the

availability of mandatory injunctive relief, but we ultimately affirm the trial court’s

denial of Ms. Rubin’s motion to enforce the Judgment.

a. Caselaw Regarding Remedies for Government Trespass

¶ 43 The proposition that a government body occupying private property outside its

eminent domain powers is committing a trespass—and may be ejected for it—is not

a new one. In McDowell v. City of Asheville, 112 N.C. 747, 17 S.E. 537 (1893), our

Supreme Court held that a town committing such an act “may be treated as a

trespasser and sued in ejectment.” 112 N.C. at 750, 17 S.E. at 538. The aggrieved

landowner may also, however, “elect [not] to treat the [town] as a trespasser . . . [and]

compel the [town] to assess the damages as provided by its charter,” id., effectively

compelling a payment of just compensation by inverse condemnation. See, e.g., Hoyle,

276 N.C. at 302, 172 S.E.2d at 8. This framing of the encroaching town as a

trespassing tortfeasor and the ability of the landowner to elect damages or ejectment

is generally consistent with Lloyd v. Venable, 168 N.C. 531, 84 S.E. 855 (1915), in

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which a town that lacked any eminent domain powers built a street over private land.

168 N.C. at 534, 84 S.E. at 857. In holding the landowner’s claim for damages could

proceed, our Supreme Court held that the town’s “entry . . . was . . . unlawful . . . [but]

the plaintiff can waive the tortious entry and the want of power to condemn, and

recover a just and reasonable compensation for the property taken.” Id.

¶ 44 In the century since McDowell and Lloyd, our Supreme Court has limited

monetary and injunctive relief available to private landowners following wrongful

intrusion by the government.

¶ 45 In State Highway Comm’n v. Batts, 265 N.C. 346, 144 S.E.2d 126 (1965), the

Commission, on behalf of the State, filed a condemnation action to pursue

construction of a road across privately owned land and, in preparation for

construction, cut down several trees on the property. 265 N.C. at 348, 144 S.E.2d at

127. The private landowners challenged whether the condemnation was for a public

purpose and counterclaimed for damages to recover the value of the trees cut down

by the Commission’s employees. Id., 144 S.E.2d at 128. The trial court initially

entered a preliminary injunction barring construction but ultimately concluded the

condemnation was for a public purpose. Id. at 349-50, 144 S.E.2d at 129. On appeal,

the Supreme Court held that the condemnation was not for a public purpose and

reversed the trial court’s judgment. Id. at 360-61, 144 S.E.2d at 137. It also held,

however, that the Commission could not be held liable for having cut down the trees:

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[The private landowners] alleged that the construction of

[the] highway is beyond the scope of the [eminent domain]

authority vested in the Commission and inferentially that

acts done in furtherance thereof are also unauthorized. We

have agreed. Therefore, the cutting of the trees was not a

taking of private property for public use. It was merely an

unauthorized trespass by employees of the Commission, for

which no cause of action exists against the Commission in

favor of [the private landowners]. . . . An agency of the

State is powerless to exceed the authority conferred upon

it, and therefore cannot commit an actionable wrong.

Id. at 361, 144 S.E.2d at 137-38 (citations omitted) (emphasis added). Batts did not

address the availability of injunctive relief to bar government intrusion onto private

property for a non-public purpose.

¶ 46 In Clark v. Asheville Contracting Co., 316 N.C. 475, 342 S.E.2d 832 (1986), our

Supreme Court held that mandatory injunctive relief cannot be obtained against the

State following its trespass on private land. 316 N.C. at 485, 342 S.E.2d at 838.

There, a contractor building a highway near Asheville for the Department of

Transportation (“DOT”) dumped rock waste in a residential subdivision. 316 N.C. at

478-79, 342 S.E.2d at 834. The landowners sued DOT, the contractor, and the

corporate president of the contractor, seeking damages in tort, a mandatory

injunction ordering the removal of the rock waste and, failing that, just compensation

for the taking by DOT. Id. All defendants cross-claimed each other and filed motions

to dismiss and for summary judgment; at the hearing on those motions, the

landowners elected to forego their claims for monetary damages in favor of an “order

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that the [DOT] and the contractor remove the waste previously deposited on the

property in question.” Id. at 482, 342 S.E.2d at 836. The landowners moved for

summary judgment, and DOT sought to dismiss all claims against it on the grounds

that it was immune from suit. Id. at 482-83, 342 S.E.2d at 836. The trial court denied

DOT’s motions and, after hearing evidence, concluded that the dumping of waste was

a taking for a non-public purpose. Id. It then ordered that the defendants, including

DOT, “cease and desist, and eliminate the nonconforming use . . . and . . . remove all

waste rock material placed on the property.” Id. at 483, 342 S.E.2d at 836. DOT

appealed.

¶ 47 The Supreme Court held that the trial court erred in denying summary

judgment for DOT. Id. at 484, 342 S.E.2d at 837. No party challenged the trial court’s

determination that the waste disposal was not for a public purpose, so the Supreme

Court took that conclusion as true. Id. It then held, citing both Thornton and Batts,

that the landowners could not pursue their remedy against DOT for the unauthorized

taking:

As the acts the plaintiffs complain of were not for a public

purpose, they were beyond the authority of DOT to take

property for public use in the exercise of its statutory power

of eminent domain. Since DOT as a matter of law is

incapable of exceeding its authority, the acts complained of

could not be a condemnation and taking of property by DOT

or an actionable tort by DOT. At most, the acts complained

of could have been unauthorized trespasses by agents of

DOT, for which no actionable claim exists against DOT.

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Id. at 485, 342 S.E.2d at 838 (citing Thornton, 271 N.C at 236, 156 S.E.2d at 255;

Batts, 265 N.C. at 361, 144 S.E.2d at 137) (additional citations omitted). The

Supreme Court held that DOT was immune to claims for both damages and

injunctive relief: “ [‘]The owner of property cannot maintain an action against the

State or any agency of the State in tort for damages to property (except as provided

by statute . . . ). It follows that he cannot maintain an action against it to restrain the

commission of a tort.[’] ” Id. at 486, 342 S.E.2d at 838 (quoting Shingleton v. State,

260 N.C. 451, 458, 133 S.E.2d 183, 188 (1963) (emphasis added)). Consistent with

Thornton and Batts, the Supreme Court held that the aggrieved landowners had a

valid cause of action against the individual public employees and officials responsible

for the unauthorized taking:

[T]he landowner is not without a remedy. When public

officers whose duty it is to supervise and direct a State

agency attempt or threaten to invade the property rights of

a citizen in disregard of law, they are not relieved of

responsibility by the immunity of the State from suit, even

though they act or assume to act under the authority and

pursuant to the directions of the State.

Id. (quoting Shingleton, 260 N.C. at 458, 133 S.E.2d at 188). The Supreme Court

explained that “the acts of the defendants forming the basis of the claims by the

plaintiffs . . . against DOT must be viewed as not having been a taking for a public

use. Therefore, neither the plaintiffs nor the other defendants could maintain an

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action against DOT arising from those acts.” Id.10

¶ 48 In sum, Clark holds that private landowners cannot seek mandatory injunctive

relief against a State agency to restore property following an unauthorized

encroachment for a non-public purpose. In such instances, it is the individual public

officials and agents of the State who are personally liable for the illegal acts

“invad[ing] the property rights of a citizen in disregard of law . . . even though they

act or assume to act under the authority and pursuant to the directions of the State.”

Id. (quoting Shingleton, 260 N.C. at 458, 133 S.E.2d at 188).

b. Applying Precedent to This Case

¶ 49 Batts and Clark are distinguishable from this case because they concern the

sovereign immunity of state agencies as opposed to municipalities.11 Unlike the

10 Immunity from suit does not bar inverse condemnation claims filed by landowners

pursuant to statutory provisions authorizing such actions. See Wilkie, 370 N.C. 540, 551 n.9,

809 S.E.2d 853, 861 n.9 (holding Clark has no bearing on a statutory inverse condemnation

claim brought under N.C. Gen. Stat. § 40A-51 because the Court’s decision in Clark did not

discuss or reference the statute).

11 Although Clark and Batts do not explicitly label the immunity discussed in those

decisions as sovereign immunity, the case law cited and rationale provided in those decisions

are grounded in sovereign immunity law. For example, both Clark and Batts cite Schloss v.

State Highway & Public Works Comm’n, 230 N.C. 489, 53 S.E.2d 517 (1949) for their holdings

on immunity, and Schloss begins with the maxim “[t]hat the sovereign may not be sued,

either in its own courts or elsewhere, without its consent, is an established principle of

jurisprudence in all civilized nations.” 230 N.C. at 491, 53 S.E.2d at 518 (citations omitted).

Similarly, the legal fiction espoused in Batts and Clark that a State agency cannot commit a

tortious act because it is unable to act outside its lawful authority is identical to the

antiquated fiction that the “king can do no wrong” undergirding sovereign immunity. See

Epps v. Duke Univ., 122 N.C. App. 198, 203, 468 S.E.2d 846, 850 (1996) (“Sovereign immunity

extends from feudal England’s theory that the ‘king can do no wrong.’ ” (citation omitted)).

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State, municipalities enjoy only limited governmental immunity that does not extend

to propriety functions. Estate of Williams ex rel. Overton v. Pasquotank Cty. Parks &

Recreation Dep’t, 366 N.C. 195, 199, 732 S.E.2d 137, 141 (2012).

¶ 50 A municipal sewer system that is supported by rates and fees is a propriety

function not subject to governmental immunity. See, e.g., Harrison v. City of Sanford,

177 N.C. App. 116, 121, 627 S.E.2d 672, 676 (2006) (“The law is clear in holding that

the operation and maintenance of a sewer system is a proprietary function where the

municipality sets rates and charges fees for maintenance of sewer lines.” (citations

omitted)). The record in this case includes several sections from the Apex Town Code

of Ordinances—submitted by the Town to the trial court—disclosing that the Town

does charge rates and fees for its sewer service. On the record before us, we cannot

conclude that the Town is immune to suit for trespassing.

¶ 51 We further distinguish Batts and Clark based on more recent precedents. Both

of these decisions were decided years before our Supreme Court’s landmark decision

in Corum v. Univ. of North Carolina, 330 N.C. 761, 413 S.E.2d 276 (1992), which

carved out an express exception to sovereign immunity for constitutional injuries.

Under Corum, “in the absence of an adequate state remedy, one whose state

constitutional rights have been abridged has a direct claim against the State under

our Constitution.” Id. at 782, 413 S.E.2d at 289. And, “when there is a clash between

these constitutional rights and sovereign immunity, the constitutional rights must

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prevail.” Id. at 786, 413 S.E.2d at 292. Our Supreme Court has since made clear that

Corum preserves constitutional claims arising out of tortious acts by the State that

are otherwise barred by sovereign immunity. See Craig ex rel. Craig v. New Hanover

Cty Bd. of Educ., 363 N.C. 334, 339-40, 678 S.E.2d 351, 355 (2009) (“Plaintiff’s

common law cause of action for negligence does not provide an adequate remedy at

state law when governmental immunity stands as an absolute bar to such a claim.

But as we held in Corum, plaintiff may move forward in the alternative, bringing his

colorable claims directly under our State Constitution based on the same facts that

formed the basis for his common law negligence claim.”).

¶ 52 The Town maintains on appeal, as it did before the trial court, that the only

remedy available to Ms. Rubin is money damages for inverse condemnation. The

Town relies on McAdoo v. City of Greensboro, 91 N.C. App. 570, 372 S.E.2d 742 (1988).

In McAdoo, Greensboro widened a road onto private property, and the property

owners sought damages for trespass and inverse condemnation. 91 N.C. App. at 570-

71, 372 S.E.2d 742-43. We held that the landowners could not recover monetary

damages for both trespass and inverse condemnation, as “[t]he exclusive remedy for

failure to compensate for a ‘taking’ is inverse condemnation[,]” and the landowners

therefore “ha[d] no common-law right to bring a trespass action against a city.” Id.

at 573, 372 S.E.2d at 744 (citing Long v. City of Charlotte, 306 N.C. 187, 293 S.E.2d

101 (1982)) (additional citation omitted) (emphasis added).

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¶ 53 McAdoo is distinguishable for several reasons. Most obviously, that case did

not involve a taking that was adjudicated to be unconstitutional and for a non-public

purpose. And unlike the landowners in McAdoo, Ms. Rubin is not seeking to redress

a “failure to compensate for a ‘taking[,]’ ” id., but has instead elected to pursue

mandatory injunctive relief to remedy what was already determined to be an

unconstitutional encroachment. Cf. Clark, 316 N.C. at 488, 342 S.E.2d at 839

(holding that private landowners had valid claims only against DOT’s contractor

where they had “elected to pursue only the remedy of injunctive relief” instead of

claims for monetary damages, including inverse condemnation); Lloyd, 168 N.C. at

531, 84 S.E. at 857 (providing a landowner injured by an intrusion onto private

property not within the power of eminent domain “can waive the tortious entry and

the want of power to condemn, and recover a just and reasonable compensation for

the property taken”); McDowell, 112 N.C. at 747, 17 S.E. at 538 (“[I]t may be

true . . . that the [City of Asheville] . . . may be treated as a trespasser, and sued in

ejectment, but it is clear that such a remedy would not be appropriate to the peculiar

circumstances of this case. [City of Asheville] is still occupying the land as a

street . . . and the plaintiffs evidently prefer that the street should remain, and

therefore do not elect to treat [the City] as a trespasser.” (citation omitted));

Thornton, 271 N.C. at 241, 156 S.E.2d at 258 (describing Lloyd and McDowell as

holding “where there is a taking not within the power of eminent domain the

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landowner may elect to claim damages as if the taking had been lawful . . . .”).

¶ 54 McAdoo held that a claim for damages in trespass did not lie because the

applicable inverse condemnation statute, N.C. Gen. Stat. § 40A-51, was the exclusive

remedy. 91 N.C. App. at 573, 372 S.E.2d at 744. But a different statute applies here,

and the Town’s actions compel a different result. N.C. Gen. Stat. § 136-111 authorizes

an inverse condemnation claim against a condemnor only when “no complaint and

declaration of taking has been filed.” Because the Town did file a complaint and

declaration of taking to install the sewer pipe at issue, a statutory inverse

condemnation claim was not available to Ms. Rubin.

¶ 55 We also disagree with the Town’s argument, presented in supplemental

materials filed with this Court, that monetary compensation through an inverse

condemnation action is a proper and “adequate state remedy” under Corum. As our

Supreme Court unequivocally held in Thornton, payment for an occupation of private

land by the State for a non-public purpose does not remedy the constitutional injury:

It is not a sufficient answer that the landowner will be paid

the full value of his land. It is his and he may not be

compelled to accept its value in lieu of it unless it is taken

from him for a public use. To take his property without his

consent for a non-public use, even though he be paid its full

value, is a violation of Article I, s 17, of the Constitution of

this State and of the Due Process Clause of the Fourteenth

Amendment to the Constitution of the United States.

271 N.C. at 241, 156 S.E.2d at 259.

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¶ 56 We note that mandatory injunctive relief is not guaranteed by a successful

claim for trespass against the Town. In Clark, our Supreme Court remanded the

matter back down to the trial court for further findings of fact that “consider[ed] the

relative convenience-inconvenience and the comparative injuries to the parties.” 316

N.C. at 488, 342 S.E.2d at 839. This Court has since enumerated the factors to be

considered in that balancing test. Williams, 82 N.C. App. at 384, 346 S.E.2d at 669.

The Town may also have other defenses precluding relief and it “is entitled to all

defenses that may arise upon the facts and law of the case.” Corum, 330 N.C. at 786,

413 S.E.2d at 292.

¶ 57 We also do not agree with the Town’s contention that Ms. Rubin’s failure to

raise mandatory injunctive relief in the direct condemnation action precludes her

from pursuing it after entry of the Judgment. The mandatory injunctive relief sought

was not, at the time Ms. Rubin filed her answer, a compulsory counterclaim barred

by res judicata. See, e.g., Murillo v. Daly, 169 N.C. App. 223, 227, 609 S.E.2d 478,

481 (2005) (“As the [plaintiffs’] claims were not compulsory counterclaims in the

previous action, they are not now barred by the doctrine of res judicata.”). Whether

a counterclaim is mandatory under our Rules of Civil Procedure is determined based

on its maturity at the time of pleading. See, e.g., Driggers v. Commercial Credit Corp.,

31 N.C. App. 561, 564-65, 230 S.E.2d 201, 203 (1976) (“Where a cause of action,

arising out of the transaction or occurrence that is the subject matter of the opposing

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party’s claim, matures or is acquired by a pleader after he has served his pleading,

the pleader is not required thereafter to supplement his pleading with a counterclaim.

. . . [S]uch supplemental pleading is not mandated and failure to do so will not bar

the claim.” (citations omitted)).

¶ 58 Here, the Town was not a trespasser until: (1) it installed the sewer pipe after

Ms. Rubin had filed her answer, and; (2) the Judgment extinguishing the Town’s

right, title, and interest in Ms. Rubin’s land went into effect. 12 Furthermore, the

sewer pipe represents a continuing trespass, “a peculiar animal in the law. . . . [E]ach

day the trespass continues a new wrong is committed.” Bishop v. Reinhold, 66 N.C.

App. 379, 382, 311 S.E.2d 298, 300 (1984); see also John L. Roper Lumber Co. v.

Elizabeth City Lumber Co., 140 N.C. 437, 442, 53 S.E. 134, 136 (1906) (holding

recovery for the continuing injury of a trespass action is not barred by res judicata

unless the claimant failed to establish in the prior action “the unlawful entry, or to

show his possession, either actual or constructive, of the land upon which he alleges

the defendant trespassed”).

¶ 59 As for Ms. Rubin’s failure to raise mandatory injunctive relief in the “all other

issues” hearing required by N.C. Gen. Stat. § 136-108, we note that our Supreme

12 The Judgment was temporarily stayed by the Supreme Court in the course of the

Town’s appeals, and the stay was eventually dissolved on 27 March 2019. Town of Apex v.

Rubin, 372 N.C. 107, 825 S.E.2d 253 (2019).

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Court in Thornton, which involved a roadway completed during a direct

condemnation action subject to an “all other issues” hearing under the same statute,

held that the Thorntons, who never sought to enjoin construction, could continue to

claim ownership “free of any right of way” and pursue relief “against those who have

trespassed upon their land and propose to continue to do so” if they prevailed. 271

N.C. at 238, 240, 156 S.E.2d at 257, 258 (emphasis added).

¶ 60 Like the Thorntons—had they prevailed—Ms. Rubin is entitled to relief

against the Town for its trespass following the trial court Judgment dismissing the

condemnation action and the exhaustion of the Town’s appeal rights. Given the

nature of a continuing trespass, and Thornton’s holding on the continued availability

of trespass actions, Ms. Rubin may seek injunctive relief for the continuing trespass

that the Town refuses to abate. Id. at 240, 156 S.E.2d at 258.

¶ 61 Finally, as noted by the parties at oral argument, this case presents a unique

circumstance involving the continued use of a sewer line, installed pursuant to a

direct condemnation action, that was determined to be for a non-public purpose and

in violation of the landowner’s constitutional rights. This case therefore differs

significantly from those addressed by the inverse condemnation statutes N.C. Gen.

Stat. §§ 136-111 and 40A-51, both of which apply when no condemnation action was

filed by the government. We limit our holding to cases in which a municipality filed

a direct condemnation action, constructed an improvement on the protesting

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landowner’s property, and later lost the condemnation action on the ground that it

was for a non-public purpose. We do not address instances in which a taking occurred

without the filing of a direct condemnation action.

III. CONCLUSION

¶ 62 For the foregoing reasons, we vacate the provisions of the trial court’s order

denying Ms. Rubin’s motion to enforce the Judgment that declared: (1) the Town took

title to an easement by inverse condemnation; (2) the Judgment was moot; and (3)

the Judgment was void. However, because the Judgment itself does not establish a

right to mandatory injunctive relief and is instead available only through a separate

claim against the Town upon a balancing of the equities, we affirm the trial court’s

denial of that relief. The trial court’s order granting the Town relief from the

Judgment is reversed.

VACATED IN PART; AFFIRMED IN PART; REVERSED IN PART.

Judges DILLON and JACKSON concur.