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Here's the latest in a case we've been following which presents an important issue. So much so that we filed an amicus brief in support of the property owner.

In Town of Apex v. Rubin, No. 206PAA21 (Aug. 22, 2025), the North Carolina Supreme Court held that if a taking is determined to be for private benefit and not a public use or purpose, title and right of possession "revest" with the original owner.

The court also held that if, as here, the condemnor had already seized the land and completed construction, a court is not powerless to address it and may order the condemnor to "restore the land to its pre-construction condition. Whoa.

In short, this is an important one that is well worth your review. 

Before we get underway, a note: recall that the North Carolina Constitution does not have a "takings" or "just compensation" clause. Does that mean that property owners are out of luck and that government can just take property for any use and without compensation? Of course not. The NC courts have long interpreted the state constitution's Law of the Land Clause as incorporating the public use and just compensation principles. "No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land." N.C. Const. art. I, § 19

How O.G. is that? Much Magna Carta. 

Back to our story. 

The Town of Apex, North Carolina ("The Peak of Good Living"), sought to take an easement across Rubin's land. She objected, asserting the taking was not for a public use or purpose, but rather to benefit a private party: a developer who needed the easement to connect two of his non-contiguous parcels to the municipal sewer system, a precondition of the Town's development approvals for his proposed residential subdivisions.

But while Rubin's public use objection was pending, the Town went ahead at installed the sewer line, purportedly under its quick-take power. That was not the best of moves, however, because the courts eventually agreed with Rubin that the taking violated the public use requirement. So here's where we are: the Town was now illegally occupying Rubin's property.

Now what? The Town argued it was fait accompli -- all you can do is sue us for just compensation in an inverse action. But Rubin didn't want compensation (if she did, she presumably would not have objected to the taking). She wanted the sewer off her land. The Town argued that the only way for her to obtain that remedy was for her to sue in a common law tort trespass action and seek seeking a writ of ejectment or an injunction. (Rubin hadn't done either of these.) She argued that she didn't need to do that, and the court in the eminent domain action had all the authority it needed to order the Town to get off her land.

The court of appeals was appropriately horrified by the Town's actions. It noted that "[t]he Town’s argument is not supported by the facts or the law." But it concluded that although the Town grossly exceeded its powers and violated Rubin's rights, Rubin had not sought the proper remedy, and in order to get the Town off her property, she needed to have sued in trespass. 

Both parties asked the North Carolina Supreme Court for discretionary review. The court agreed to take up the case, and just about 11 months ago, it heard oral arguments. 

The unanimous court held that a judicial determination that a taking is for a private purpose and not a public use is void ab initio:

We are asked if a trial court determines that a municipality’s exercise of eminent domain was for a private purpose, rather than a public purpose, does title and right of possession revest with the original landowner? We hold it does. After all, deciding otherwise would render the Takings Clause meaningless.

Slip op. at 2.

Next, the court held that courts have the "inherent authority" to issue a restoration order in the right circumstances:

And if the municipality has already completed construction on the taken land, our courts possess the inherent authority to restore the land to its pre-construction status by issuing a mandatory injunction. Whether such an injunction issues depends on a weighing of the “equities, hardships, and the interests of the public and of third persons,” and that weighing rests within the province of a trial court.

Id. 

The court rejected the Town's argument that the only relief an owner has in these situations is inverse condemnation. Recall that the Town had physically seized the land and built the sewer, after which it claimed that all Rubin could do was sue it for just compensation in an inverse action. The court held no, this was an attempt by the Town to redefine the term "inverse condemnation."

After all, the Town had tried to formally exercise the eminent domain power, but had been rebuffed. And inverse is reserved for cases "when the government—acting intentionally or unintentionally—takes land outside of the eminent domain process[.]" Slip op. at 21 (emphasis added). The court concluded, "such an action is only available if the taking is informal—“no complaint and declaration” were filed. ... Thus, if the government entity has initiated formal condemnation proceedings, no inverse condemnation takes place or, under our statutes, could have taken place." Id. 

The court recognized that the Town was trying to strip Rubin of her property right to keep her land, unless and until the Town did the condemnation properly. The court agreed with the lower courts that the attempt to take Rubin's land was "null and void," but at the same time rejected the lower courts' conclusion that the only remedy was for her to obtain an injunction to stop the Town from building the sewer (and that once the construction was done, it was too late). 

The Supreme Court concluded that null-and-void means null-and-void:

But the trial court acted under a misapprehension of the law because the effect of the Private Purpose Judgment was to revest title in Ms. Rubin, not to erase the fact that Apex did seek formal condemnation of the land. As this Court recognized in Thorton, when a government entity enters land relying “upon its own opinion as to its authority” and “that opinion was erroneous, the [landowners] are entitled to have the [Direct Condemnation Action] dismissed, leaving them to whatever rights they may have against those who have trespassed upon their land and propose to continue to do so.” Id. at 240.

Further, the Private Purpose Judgment’s “null and void” language does not operate as a time machine; it does not undo the fact that Apex filed a complaint and then entered the land relying upon its own opinion that the taking was for a public purpose. Ms. Rubin did not have an action, and thus remedy, for inverse condemnation under N.C.G.S. § 136-111 because Apex filed a complaint and declaration of taking; inverse condemnation only occurs when the government entity takes an interest in land without filing a complaint.

Slip op. at 24. 

Next, the Supreme Court held that courts have the "inherent authority to grant relief where a constitutional right has been infringed upon." Slip op. at 27. The owner did not need to have affirmatively asked for an injunction. To determine whether an injunction ordering the Town to remove the sewer and restore the land to its pre-invasion condition, the court required a "weighing of the equities." Because weighing of these equities is a matter for trial courts in the first instance, and the trial court here had not undertaken any such inquiry, the court sent the case back down:

On remand, in weighing the equities, the trial court should consider whether Apex acted in good faith when it installed the sewer line notwithstanding Ms. Rubin’s notice of intent to challenge. See Williams, 82 N.C. App. at 384. The trial court should also consider the impact on the fifty homeowners that rely upon the sewer line. The trial court is not precluded, for example, from considering whether, in ordering different mandatory injunctive relief, Apex should install a replacement sewer line or pumping station, then remove the offending sewer line, and pay Ms. Rubin a reasonable rental rate for the time period when the sewer line was on her property. Likewise, the trial court is not precluded from determining that monetary damages are the least intrusive remedy. But the trial court should take care to ensure that money damages do not merely give Ms. Rubin the value of the property taken from her in 2015. Such a remedy would be what Apex would have paid had it been successful in the 2015 Direct Condemnation Action or the 2019 Inverse Condemnation Declaratory Judgment Action, had this taking been deemed constitutional. As we rejected above, Apex securing the line and paying what it wanted to pay in 2015 cannot be a meaningful remedy for a constitutional violation. As part of the totality of the circumstances analysis, the trial court is authorized to accept evidence on the range of appropriate remedies and damages, from what it would have cost to construct an alternative sewer line that did not cross Ms. Rubin’s property to how property values have changed over the last decade.

Slip op. at 30-31. 

One Justice concurred, noting that this case is unusual ("procedurally abnormal"), and expressing his "hope that the procedural tangle here does not create procedural issues in the future." Slip op. at 33 (Newby, J., concurring in part and concurring in the result only in part). 

For those of you outside of North Carolina's borders, this case is still worth recording in your data banks because it reaffirms several essential points:

• A taking that lacks a public use or purpose is void ab initio, not merely voidable. It is simply beyond the power of the government to take property without a public use.
• The boundaries established by the Constitution are there for a purpose. The Town deservedly has egg on its face because it didn't respect those boundaries and the inherent limitations on its power. 
• A court has the inherent power to order a remedy when the government doesn't stay within the constitutional lines. You have no obligation to sue stop it. As our amicus brief argued, we believe the court in the eminent domain action has all the power it needs to enforce constitutional rights.
• The risk of "just build it" falls on the condemnor, not the property owner.  

At heart, this case affirms the right of owners to keep their property, unless and until the government gets it right. 

Town of Apex v. Rubin, No. 206PAA21 (N.C. Aug. 22, 2025)

            

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