All the Justices
BELL ATLANTIC-VIRGINIA, INC.
OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR.
v. Record No. 961830
June 6, 1997
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N.A. Kendrick, Judge
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 § 8.01184 and "just compensation due to [the County's] taking or
damaging of [Bell Atlantic's] property on or about:
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
In Count I, Bell Atlantic further alleges the
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."
(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.
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
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
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11 of the Virginia Constitution and/or for breach of implied
contract and that such allegations are barred by the County's
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
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
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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
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.
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).
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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