Revesting Title and Judicial Power to Undo Private-Purpose Takings
A Comprehensive Commentary on Town of Apex v. Rubin, Supreme Court of North Carolina (2025)

1. Introduction

Town of Apex v. Rubin is the North Carolina Supreme Court’s most far-reaching statement in decades on three interconnected questions:

1. What happens to legal title when a municipality’s exercise of eminent domain is later declared to have served a purely private purpose?
2. May a court order the government to undo completed construction and physically remove public infrastructure from private land?
3. How do the doctrines of prior action pending, res judicata, and inverse condemnation interact after an invalid taking?

Answering those questions, the Court holds that title and the right of possession automatically revert to the landowner; that trial courts enjoy inherent equitable authority—after weighing the equities—to issue mandatory injunctions compelling restoration of the land; and that a condemnor cannot sidestep an adverse judgment by filing a second “inverse condemnation” suit while the first case (or its aftermath) remains extant.

The ruling stems from a decade-long dispute between the rapidly growing Town of Apex and Beverly Rubin, who owned rural property that became the linchpin for a private developer’s subdivision sewer line. The procedural saga generated three Court of Appeals opinions (Apex I, II, III) and now a lengthy Supreme Court opinion, clarifying the contours of North Carolina takings law and the judiciary’s remedial powers.

2. Summary of the Judgment

• Revesting of Title: Because the trial court (Judge O’Neal) previously determined the taking lacked a public purpose, that ruling—now the “law of the case”—automatically vested full title and possession back in Rubin. Apex owns no easement.
• Continuing Trespass: The installed underground sewer pipe constitutes an ongoing trespass.
• Equitable Remedial Power: Trial courts possess inherent authority to issue mandatory injunctive relief (e.g., removal of the pipe) notwithstanding the absence of such relief in the original pleadings, provided they balance equities, hardships, and public interests.
• Prior Action Pending: Apex’s 2019 declaratory-judgment/inverse-condemnation action is barred and must be dismissed with prejudice because the 2015 condemnation action was still capable of furnishing complete relief.
• Remand Instructions: (a) Determine the proper remedy—injunction, damages, or hybrid—after an equitable balancing; (b) Dismiss the 2019 action; (c) Apex may seek interim relief (e.g., stay or temporary injunction) in the original action during remand.

3. Analysis

3.1 Key Precedents Cited and Their Influence

• Carolina Tel. & Tel. Co. v. McLeod, 321 N.C. 426 (1988) – Re-asserted that eminent-domain power may not be used for “purely private purpose.”
• State Highway Comm’n v. Thornton, 271 N.C. 227 (1967) – Landmark decision rejecting governmental efforts to enlarge condemnation powers by “precipitate entry”; invoked to refute Apex’s “heads-I-win, tails-you-lose” theory.
• Roberts v. Madison Cnty. Realtors Ass’n, 344 N.C. 394 (1996) – Provides the modern test for issuing mandatory injunctions (balance equities, hardships, public interest).
• Wilkie v. City of Boiling Spring Lakes, 370 N.C. 540 (2018) – Clarified that public purpose is not an element of an inverse condemnation claim; Apex mis-used Wilkie, and the Court distinguishes it.
• Clark v. Craven Regional Medical Authority, 326 N.C. 15 (1990) – Foundation for the prior action pending doctrine; Court uses it to dismiss Apex’s duplicative suit.
• Sale v. State Highway & Pub. Works Comm’n, 242 N.C. 612 (1955) & Corum v. UNC, 330 N.C. 761 (1992) – Source of courts’ inherent authority to supply a remedy where statutes are inadequate.

3.2 The Court’s Legal Reasoning

3.2.1 Automatic Revesting of Title

The Court rejects the notion that a condemnor who unlawfully occupies land can convert that wrongdoing into an “inverse condemnation” and keep the easement by paying compensation. Citing Thornton, the justices explain that allowing such bootstrapping would “render the Takings Clause meaningless.” Once the taking is adjudged non-public, the declaration in the condemnation judgment that the claim is “null and void” does not erase the earlier filing; it merely nullifies the municipality’s asserted property interest, leaving full title with the owner.

3.2.2 Inherent Authority to Issue Mandatory Injunctions

While Rubin failed to plead for an injunction in 2015, the Court emphasizes that enforcement of constitutional property rights is not hostage to pleading technicalities. Trial courts carry inherent equitable power to “undo those acts that have been illegally done,” especially where no adequate statutory remedy exists, and must weigh:

1. Good or bad faith of the encroacher;
2. Proportionality of hardship to each side;
3. Effects on third parties and the public (e.g., 50 homes relying on the sewer line);
4. Whether money damages would leave the landowner with merely the 2015 value, thereby ignoring the non-public nature of the intrusion.

3.2.3 Prior Action Pending vs. Res Judicata

Although Apex III used res judicata to bar most claims, the Supreme Court goes further: because the 2015 action could still resolve all issues (title and remedy), the 2019 suit was unnecessary from its inception. The “core purpose” of abatement—preventing dual litigation—required dismissal in toto.

3.2.4 Treatment of Inverse Condemnation

Inverse condemnation (§136-111 / §40A-51) applies only when government takes property without filing a condemnation complaint. Apex had filed one; therefore inverse condemnation was unavailable to it (and arguably to Rubin) after the private-purpose finding. The Court clarifies a recurring confusion in local-government litigation.

3.3 Likely Impact of the Decision

• Practical Deterrent: Municipalities can no longer rely on the “build now, litigate later” strategy; premature construction carries real risk of forced removal—even years later.
• Litigation Strategy: Landowners need not shoehorn all possible equitable relief into initial pleadings; courts can fashion suitable remedies post-judgment.
• Procedure: Condemnors must consolidate all theories, including any inverse-condemnation fallback, within the original action; second-suit end-runs are barred.
• Remedial Flexibility: Mandatory injunctions join damages as co-equal remedies for unconstitutional takings, signaling broader judicial willingness to order removal of pipelines, roads, or utilities where public purpose is absent.
• North Carolina Distinctiveness: The decision places the state among the leading jurisdictions recognizing expansive equitable relief for takings violations.

4. Complex Concepts Simplified

Eminent Domain

The government’s power to take private property for a public use, with payment of “just compensation.” In North Carolina, municipalities gain this power through statutes such as G.S. §40A-3 and special local acts.

Inverse Condemnation

A lawsuit initiated by the landowner when the government takes property without formally exercising eminent domain. It forces the government to pay compensation. It is not a tool for the government.

Mandatory Injunction

An equitable court order compelling the defendant to take positive action (e.g., remove a structure) rather than merely refrain from wrongdoing.

Prior Action Pending Doctrine

If two suits between the same parties involve the same subject and relief, the later suit must be dismissed to avoid duplicative litigation and inconsistent verdicts.

Revesting

Automatic return of legal title and possession to the original owner when the attempted taking is declared unlawful.

5. Conclusion

Town of Apex v. Rubin firmly establishes that (1) unconstitutional takings instantly fail, and the property interest springs back to the owner; (2) North Carolina courts wield broad equitable tools—including the power to dismantle completed public works—to vindicate constitutional property rights; and (3) condemnors may not manufacture an “inverse” taking to salvage an invalid condemnation. The case is a cautionary tale for local governments, a roadmap for landowners, and an important precedential clarification on the bounds of public purpose, available remedies, and procedural integrity in eminent-domain litigation.

As the matter returns to the trial court, North Carolina practitioners and municipalities alike will watch closely: the eventual balancing of equities and any ordered removal or compensation will shape strategic decisions in future infrastructure projects and condemnations across the state.