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News Lawsuit filed against the Town of Franklin

Property owner objects to installation of a sewer line.

Last week, the Town of Franklin held a special meeting to discuss a legal matter in a closed session about a pending lawsuit according to town attorney, John Henning Jr.

In documents obtained from the Macon County Clerk of Court's office, it has come to light that there is a pending lawsuit against the Town of Franklin.

Paperwork was filed on April 2, 2012, on behalf of John W. Mitchell, Jr. Revocable Trust and lists Jones P. Byrd of Van Winkle Law Firm in Asheville as the legal representation for the plaintiff.

The complaint states that on or about October 15, 2010, the Town of Franklin acquired by inverse condemnation interests in the land of the plaintiff. On April 2, 2012, a permanent sewer easement, including the right to install, operate, maintain, replace and repair the underground sewer line installed across the plaintiff's property “by inverse condemnation, and a trespass upon the property of the plaintiff.”

The location of the afflicted property is between Main Street and Mill Street where Depot Street bisects the two.

The obtained document justifies the complaint by pointing to NC General Statute 40A- 51;

40A-51. Remedy where no declaration of taking filed; recording memorandum of action.

(a) If property has been taken by an act or omission of a condemnor listed in G.S. 40A- 3(b) or (c) and no complaint containing a declaration of taking has been filed the owner of the property, may initiate an action to seek compensation for the taking. The action may be initiated within 24 months of the date of the taking of the affected property or the completion of the project involving the taking, whichever shall occur later. The complaint shall be filed in the Superior Court and shall contain the following: the names and places of residence of all persons who are, or claim to be, owners of the property, so far as the same can by reasonable diligence be ascertained; if any persons are under a legal disability, it must be so stated; a statement as to any encumbrances on the property; the particular facts which constitute the taking together with the dates that they allegedly occurred, and; a description of the property taken. Upon the filing of said complaint summons shall issue and together with a copy of the complaint be served on the condemnor. The allegations of said complaint shall be deemed denied; however, the condemnor within 60 days of service summons and complaint may file answer thereto. If the taking is admitted by the condemnor, it shall, at the time of filing the answer, deposit with the court the estimated amount of compensation for the taking. Notice of the deposit shall be given to the owner. The owner may apply for disbursement of the deposit and disbursement shall be made in accordance with the applicable provisions of G.S. 40A-44. If a taking is admitted, the condemnor shall, within 90 days of the filing of the answer to the complaint, file a map or plat of the property taken. The procedure hereinbefore set out in this Article and in Article 4 shall be followed for the purpose of determining all matters raised by the pleadings and the determination of just compensation.

(b) The owner at the time of filing of the complaint shall record a memorandum of action with the register of deeds in all counties in which the property involved is located. The memorandum is to be recorded among the land records of the county. The memorandum of action shall contain:

(1) The names of those persons who the owner is informed and believes to be or claim to be owners of the property;

(2) A description of the entire tract or tracts affected by the alleged taking sufficient for the identification thereof;

(3) A statement of the property allegedly taken; and

(4) The date on which owner alleges the taking occurred, the date on which said action was instituted, the county in which it was instituted, and such other reference thereto as may be necessary for the identification of said action.

(c) Nothing in this section shall in any manner affect an owner's common-law right to bring an action in tort for damage to his property. (1981, c. 919, s. 1.)

The filing goes on to cite the 5th Amendment of the Constitution of the United States of America and Article 1, of the Constitution of North Carolina. Further declaring that no Complaint and Declaration of Taking has been filed and served and no Memorandum of Action has been filed by the defendant as required by law.

The complaint requests of the court that the plaintiff recovers just compensation for the taking of the property; recovers all costs and expenses of the litigation; recovers interest upon any sum recovered, compounded, at the highest rate allowed by law, computed from the date of taking, until payment of judgement in full, have a trial by jury, and any other relief that the Court may deem proper.

The documents show that the trial has been postponed repeatedly. Following last week’s meeting, Henning was unable to comment on the matter. A date to resolve the matter has yet to be determined.


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