Reversionary Title & Mandatory Injunctions After an Unconstitutional Taking
A Comprehensive Commentary on Town of Apex v. Rubin, 385 N.C. ___ (2025)

1. Introduction

In Town of Apex v. Rubin, the Supreme Court of North Carolina confronted the thorny aftermath of a municipality’s decision to take an underground sewer easement for the exclusive benefit of a private developer. The judgment not only resolves a decade-long procedural morass but also forges two important clarifications of state takings law:

• When a trial court ultimately decides that a taking was for a purely private purpose, title and possession of the condemned interest automatically revert to the landowner.
• North Carolina trial courts possess inherent equitable power to issue a mandatory injunction compelling removal of public improvements wrongfully placed on private land, after balancing the competing equities.

The decision harmonizes constitutional first principles with practical equitable tools, creating a clear roadmap for courts, condemnors and property owners alike.

2. Summary of the Judgment

• Reversion of Title: The Court held that once a condemnation is adjudged unconstitutional (i.e., for a private purpose), any interests purportedly acquired by the condemnor are void; fee title and the right to possession vest once again in the original owner.
• Equitable Remedies Available: Even where the public improvement (here, a buried sewer line) is complete, trial courts may order its removal via a mandatory injunction, or award damages, or craft hybrid relief, following a fact-intensive balancing of hardships and public interest.
• Prior Action Pending / Res judicata: Because the municipality already had a live direct-condemnation lawsuit, its subsequent declaratory-judgment action was barred and must be dismissed with prejudice.
• No “Inverse” Work-Around: A governmental unit that initiates direct condemnation cannot later recast its own failed taking as an “inverse condemnation” to secure the very easement that was declared void.
• Remand: The Court remanded the 2015 action for determination of the proper remedy and ordered dismissal of the municipality’s 2019 declaratory-judgment suit.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

• Carolina Tel. & Tel. Co. v. McLeod, 321 N.C. 426 (1988) – reaffirmed that eminent-domain power may not be used for a purely private purpose. This core principle framed the entire dispute.
• Roberts v. Madison County Realtors Ass’n, 344 N.C. 394 (1996) – supplied the equitable balancing test (“equities, hardships, public interest”) for mandatory injunctions, which the Court orders the trial bench to apply on remand.
• State Highway Comm’n v. Thornton, 271 N.C. 227 (1967) – key support for the holding that premature construction does not enlarge condemnation powers; property owners may reclaim title and sue in trespass.
• Pelham Realty Corp. v. Bd. of Transp., 303 N.C. 424 (1981) – confirmed that invalid takings can still be challenged after construction; cited to reject the trial court’s jurisdictional concerns.
• Wilkie v. City of Boiling Spring Lakes, 370 N.C. 540 (2018) – municipality’s reliance on Wilkie to claim inverse condemnation was curtailed; Wilkie does not erase the public-use requirement.
• Procedural doctrines anchored by Clark v. Craven Reg’l Med. Auth., 326 N.C. 15 (1990) and Eways v. Governor’s Island, 326 N.C. 552 (1990) informed the Court’s application of the prior-action-pending bar.

3.2 Court’s Legal Reasoning

1. Constitutional Bedrock: Article I, §19 bars deprivation of property except “by the law of the land,” meaning for public use with just compensation. A private-purpose seizure is therefore void ab initio.
2. Effect of the “Private Purpose Judgment” (2016): That judgment became final after appeals lapsed; it eradicated Apex’s declaration of taking and revested title in Rubin. The trial court later misunderstood this effect when it declared the judgment “moot.”
3. Inverse Condemnation Misapplied: Because Apex had filed a formal direct condemnation, the inverse-condemnation statute (G.S. §136-111) never became available to it. The Court denounced the “heads I win, tails you lose” logic that would reward an unlawful taking.
4. Equitable Enforcement Power: North Carolina courts wield inherent authority to make their judgments meaningful. That includes ordering removal of unlawfully installed infrastructure if equitable factors so align.
5. Procedural Economy: The municipality’s second lawsuit duplicated parties, subject matter and relief, violating the prior-action-pending (and, as the concurrence notes, res judicata) doctrine. Dismissal with prejudice avoids piecemeal litigation.
6. Remedial Framework: On remand judges must examine (a) Apex’s lack of good faith, (b) hardship to 50 homeowners who rely on the line, (c) cost and feasibility of alternatives, and (d) the temporal dimension – nearly a decade of unconstitutional occupancy.

3.3 Likely Impact on North Carolina Takings Law

• Sends a Clear Deterrent Signal: Municipalities can no longer assume that completion of construction will insulate a defective taking. Removal is now a realistic consequence.
• Reinforces Public-Use Policing: Trial courts are empowered, and perhaps expected, to examine purpose at the §136-108 stage and to grant muscular remedies if the purpose is private.
• Guides Litigation Strategy: Condemnors must bring all related claims—including any alternative theories of acquisition—within the original action, while property owners should plead injunctive relief early to avoid delay.
• Clarifies Interaction of Doctrines: The opinion synthesizes eminent domain, inverse condemnation, prior-action-pending, res judicata, and equitable relief, providing a blueprint for future complex infrastructure disputes.
• Potential Ripple Effects: Public–private partnership projects will receive heightened scrutiny as municipalities re-evaluate indemnity agreements with private developers.

4. Complex Concepts Simplified

5. Conclusion

Town of Apex v. Rubin restores constitutional symmetry to North Carolina’s takings jurisprudence. When government ventures beyond its public-use mandate, all of its claimed interests evaporate; title snaps back to the citizen, and courts may, in equity, compel the governmental trespasser to “undo that which has been illegally done.”

The opinion is also a lesson in litigation efficiency: one action is enough. Condemnors must consolidate their theories, and landowners must state their full range of remedies early, lest process sprawl choke the merits.

Ultimately, the judgment underscores a foundational truth: constitutional limits on eminent domain are not satisfied by writing a check. They are vindicated when public purpose and fair process march together—and when, failing that, courts stand ready to restore both property and principle.