City of Raleigh v. Edwards

Citations: 71 S.E.2d 396; 235 N.C. 671; 1952 N.C. LEXIS 478Docket: 456

Court: Supreme Court of North Carolina; June 11, 1952; North Carolina; State Supreme Court

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The Supreme Court of North Carolina addressed an appeal concerning the City of Raleigh's plan to construct an elevated water storage tank near the homes of the interveners, Edwards et al. The interveners raised two primary defenses: 

1. **Nuisance Claim**: They argued that the water tank would constitute a nuisance, diminishing their property value and effectively amounting to a partial taking of their property as prohibited by G.S. 40-10. They asserted that the tank’s proximity would lead to water overflow affecting their home and increased water pressure that could damage their plumbing, rendering their living conditions uncomfortable.

2. **Violation of Restrictive Covenants**: The interveners contended that the construction would breach the subdivision's covenants, which restrict property use to private dwelling purposes only. They maintained that this violation would deprive them of significant vested property rights, thus justifying their claim for compensation if the nuisance claim failed.

The court emphasized that while municipalities generally enjoy immunity from liability for negligent torts, they can be held liable for creating a nuisance that constitutes a taking of private property under eminent domain principles, without due compensation. The decision referenced several precedents affirming that public necessity does not excuse the requirement for compensation when property is appropriated for public use.

G.S. 40-10 prohibits corporations from condemning private property, such as a dwelling or garden, without the owner's consent unless specifically authorized in their charter or the law. G.S. 160-204 allows city governing bodies to acquire land or easements necessary for public utilities and facilities, with compensation to the owners. If an agreement cannot be reached, G.S. 160-205 permits condemnation under eminent domain procedures. Historically, G.S. 40-10, enacted in 1852, did not initially include municipalities among those authorized to condemn land, while G.S. 160-204 and 160-205 were enacted in 1917 and are not bound by G.S. 40-10's limitations. Therefore, the City of Raleigh can condemn property, including dwelling houses, for the construction of a water tank, as empowered by G.S. 160-204 and 160-205. The claim that this constitutes an unlawful taking of property is unfounded. The case of Selma v. Nobles is distinguished as it involved a specific charter provision for cemetery land condemnation. Additionally, the raised water tank is not inherently a nuisance. The contention regarding joining the defense in this proceeding is also without merit, supported by relevant statutes.

Interveners are not entitled to damages for nuisance until the tank is erected, rendering the nuisance defense premature. Currently, there is no affirmative defense supporting their claim for damages, so the demurrer should have been sustained. The issue of whether restrictive covenants in the subdivision deeds create a compensable property right for interveners has not been previously determined by this Court. However, prevailing authority in other jurisdictions indicates that such restrictions, viewed as equitable servitudes, constitute property interests that must be compensated when taken for public use. Specifically, while landowners cannot enforce these restrictions against the condemnor, they are entitled to compensation if their property rights are taken or damaged. Notable cases illustrate this principle: in Peters v. Buckner, property owners were compensated when their residential-use restrictions were violated by a city's condemnation for a school; in Flynn v. New York, compensation was awarded when a railroad constructed an electric line contrary to existing restrictions; and in Allen v. Detroit, the construction of a fire station on restricted residential lots also warranted compensation for affected owners.

Building restrictions are recognized as private property interests akin to easements, which are inherent to the land and hold significant value. According to the Court, these rights cannot be seized for public use without due process and compensation. The minority view argues that since all property is subject to eminent domain, the rights of the Sovereign are exempt from these restrictive covenants, and that the condemnor, being outside the original agreement, cannot be held liable for damages. This view posits that such restrictions are merely contractual and do not constitute property interests.

Conversely, the majority view maintains that negative easements formed by building restrictions are vested property interests, consistently supported by prior case law. The Court asserts that negative easements imply a land interest, are recognized as real property, and can only be established through formal grants. These easements, which limit the use of the servient estate, must be compensated if taken, regardless of the lack of contractual privity between landowners and the condemnor. Following the acceptance of the interveners' claims as true, the Court concludes that they possess a vested property right in the restrictions related to the condemned lots, entitling them to compensation for any loss due to the proposed property use, in line with the North Carolina and U.S. Constitutions. The prior judgment is affirmed with modifications.