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BELL ATLANTIC-VIRGINIA, INC. v. ARLINGTON COUNTY (59912)


BELL ATLANTIC-VIRGINIA,
INC.

v.

ARLINGTON COUNTY


June 6, 1997
Record No. 961830

BELL ATLANTIC-VIRGINIA, INC.

v.

ARLINGTON COUNTY

OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR.
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY

Benjamin N.A. Kendrick, Judge
Present: All the Justices


In this inverse condemnation proceeding, we decide whether the
trial court erred in (1) sustaining the defendant’s plea in bar
on the ground of sovereign immunity and (2) sustaining the
defendant’s demurrer on the ground that the plaintiff’s second
amended motion for judgment fails to state a claim for damages
under Article I, Section 11 of the Constitution of Virginia.

Bell Atlantic-Virginia, Inc. (Bell Atlantic) filed a second
amended motion for judgment against Arlington County (the
County), seeking a declaratory judgment pursuant to Code
? 8.01-184 and "just compensation due to [the
County's] taking or damaging of [Bell Atlantic's] property on or
about: September 30, 1992; and June 8, 1994." Count I of the
motion for judgment relates to the September 30, 1992 incident,
and Count II pertains to the June 8, 1994 incident.

In each count, Bell Atlantic alleges that "the County
took and/or damaged Bell Atlantic’s underground utility
facilities for public use."[1]
In Count I, Bell Atlantic further alleges the following: (1)
"the damage or taking occurred so [the County] could
construct, install or maintain its waterworks system;" (2)
"[t]he actions of [the County] were unconstitutional in that
[the County] took or damaged Bell Atlantic’s property and applied
it for public use without just compensation being made, and
without Bell Atlantic’s consent, contrary to Article I, Section
11, of the Constitution of the Commonwealth of Virginia;"
and (3) "Bell Atlantic therefore brings suit upon an implied
contract" to recover the damages resulting from the taking
or damage. Bell Atlantic’s allegations in Count II are virtually
identical to those in Count I except that, in Count II, the
alleged taking or damage occurred in connection with the County’s
sewage disposal system.

The County filed a demurrer, asserting, inter alia,
that "[t]he claims alleged in the Second Amended Motion for
Judgment are barred by the County’s sovereign immunity" and
that Bell Atlantic failed "to allege sufficient facts to
state a cause of action for either breach of implied contract or
a taking of property without just compensation." The County
also filed a plea in bar, asserting that Bell Atlantic’s action
is a simple tort action and, thus, is barred by sovereign
immunity.

In its final order entered June 10, 1996, the trial court
sustained the County’s demurrer and plea in bar, concluding that
"the Second Amended Motion for Judgment does not contain
allegations sufficient to plead violations of Article I, Section
11 of the Virginia Constitution and/or for breach of implied
contract and that such allegations are barred by the County’s
sovereign immunity." We awarded Bell Atlantic an appeal.

Article I, Section 11 of the Constitution of Virginia provides
that private property shall not be taken or damaged for
"public uses," as that term is defined by the General
Assembly, without just compensation. The General Assembly, in
Code ? 15.1-276, defines the term "public uses"
to "embrace all uses which are necessary for public
purposes." Code ? 15.1-292 empowers a County to
acquire property by purchase, condemnation, or otherwise in order
to construct, operate, or maintain its waterworks, and Code
? 15.1-320 similarly empowers a County regarding its sewage
disposal system.

Article I, Section 11 of the Constitution is self-executing
and permits a property owner to enforce his constitutional right
to just compensation in a common law action. We have held that
such an action is not a tort action; rather, it is a contract
action and, therefore, is not barred by the doctrine of sovereign
immunity. Jenkins v. County of Shenandoah, 246 Va.
467, 470, 436 S.E.2d 607, 609 (1993); Burns v. Board of
Supervisors
, 218 Va. 625, 627, 238 S.E.2d 823, 825 (1977).

In the present case, the County did not present any evidence
in support of its plea in bar. Therefore, in deciding both the
plea in bar and the County’s demurrer, we, like the trial court,
must confine our consideration to the allegations contained in
Bell Atlantic’s second amended motion for judgment.[2]

A demurrer admits as true all material facts well pleaded,
facts impliedly alleged, and facts that may be fairly inferred
from those alleged. Palumbo v. Bennett, 242 Va.
248, 249, 409 S.E.2d 152, 152 (1991); Bowman v. State
Bank of Keysville
, 229 Va. 534, 536, 331 S.E.2d 797, 798
(1985).

From the allegations contained in the second amended motion
for judgment, it is clear that Bell Atlantic states a claim for
just compensation under Article I, Section 11 of the Constitution
of Virginia.[3]
Therefore, the trial court erred in sustaining the County’s plea
in bar and demurrer.

Consequently, we will reverse the trial court’s judgment and
remand the case for further proceedings.

Reversed and remanded.

 

FOOTNOTES:

[1] The property allegedly taken or
damaged on September 30, 1992, is described as including
"the following communications lines: (a) 2100 pair cable;
and (b) 1800 pair cable." The property allegedly taken or
damaged on June 8, 1994, is described as including "the
following lines: (a) 200 pair cable; and (b) 600 pair
cable."

[2]
The County contends that, in deciding this case, we should
consider allegations made by Bell Atlantic in its original motion
for judgment and amended motion for judgment. We do not agree.
Demurrers and pleas in bar were sustained as to those pleadings.
Thereafter, with leave of court, Bell Atlantic filed its second
amended motion for judgment. In so doing, it did not incorporate
or refer to any of the allegations that were set forth in its
original or amended motions for judgment. The trial court based
its decision "on [the County's] Demurrer and Special Plea in
Bar to the Second Amended Motion for Judgment," and
we cannot do otherwise (emphasis added). See Norfolk
& W.R. Co.
v. Sutherland, 105 Va. 545, 549-50, 54
S.E. 465, 466 (1906).

[3]
We express no opinion, however, whether such a claim will be
viable after the facts are fully developed by the evidence.

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