NO.

23-_____

In the
Supreme Court of the United States

MICHAEL L. KISER,
ROBIN S. KISER AND SUNSET KEYS, LLC,
Petitioners,

v.

DUKE ENERGY CAROLINAS, LLC, ET AL.,

Respondents.
__________________________
On Petition for a Writ of Certiorari to the
Supreme Court of North Carolina

PETITION FOR A WRIT OF CERTIORARI

Dennis E. Boyle
Counsel of Record
BOYLE & JASARI
1050 Connecticut Ave, NW
Suite 500
Washington, DC 20036
(202) 798-7600
[email protected]

September 18, 2023 Counsel for Petitioners

SUPREME COURT PRESS ♦ (888) 958-5705 ♦ BOSTON, MASSACHUSETTS
 i

QUESTIONS PRESENTED
1. Is a state supreme court able to “side-step”
the just compensation requirement of the Fifth and
Fourteenth Amendments by simply removing pre-
existing property rights of owners to real property?
2. Is the North Carolina Supreme Court’s decision
in holding that an established right of private property
no longer exists a taking in violation of the Fifth and
Fourteenth Amendments to the United States
Constitution?
3. Is the North Carolina Supreme Court’s grant
of title and ouster of property rights without payment
of just compensation a violation of the due process
clauses of the Fifth and Fourteenth Amendments to
the United States Constitution?
 ii

PARTIES TO THE PROCEEDINGS

Petitioners and Defendants-Appellees/
Counterclaim Plaintiffs below
Michael L. Kiser; Robin S. Kiser; and
Sunset Keys, LLC

Respondents and Plaintiffs-Appellants/

Counterclaim Defendants below
Duke Energy Carolinas, LLC; Thomas E. Schmitt and
Karen A. Schmitt; Linda Gail Combs Revocable Trust
and Robert Donald Shepherd as Trustee; Donald Reid
Hankins; Rebecca Lee Shell; Terry Attinger and Kara
Attinger; Daniel Gonzales and Tracy Gonzales; Dennis
Fritzler and Tracy Fritzler; Garry R. Wilkinson
Revocable Trust and Garry R. Wilkinson and Sandra
S. Wilkinson as Trustees; Sandra S. Wilkinson Revo-
cable Trust and Sandra. S. Wilkinson and Garry R.
Wilkinson as Trustees; Jason Albert Walser and
Adam Carter Walser; William Claypoole and Val
Rhae Claypoole; Island Property Owners Association,
Inc.; Laurence W. Carstensen Living Trust and Patricia
H. Carstensen Living Trust; Jeremy Falls and Michelle
Falls; W. W. Sapp; Tommy L. Wallace; Brent Aaron
Curtis and Kathryn Rosene Curtis; M. Neil Finger;
Jeffrey Lynn Bryant and Barabara Tucker Bryant;
Sunset Pointe, LLC; J. Frederick Littlejohn and
Cathy D. Littlejohn; David J. Suich and Sherry R.
Suich; Jerry Lee Hooper and Barbara N. Hooper;
Tracy Lee Hooper and Jerry Bryan Hooper; Walter A.
Trott and Kelley B. Trott; Robert S. Weller and
Elizabeth A. Weller; Brown D. Overcash Jr. and Ketti
W. OVercash; James S. Pope and Betty Jo Poep;
Samuel A. Young; Jr and Kimberly A. Young; Warren
 iii

Lee Jones Trust and Stuart Barry Jones; Miles

Clark Belvin; William L. Bullard and Ann K. Bullard;
Terrence E. Gilbert and Donna Gilbert; Jeffrey H.
Carlisle; Wayne F. Cherry and Connie G. Cherry;
Jeanne Hawver; Joseph B. Grady and Thomas M.
Grady; Jeannen H. Allen and Jean B. Hughes; Joseph
H. Glenn, IV and Kimberly Daub Glenn; Ann Gardner
Glenn and Robert Michael Whitnell; Clarence Michael
Underwood and Janna H. Underwood; Joseph Paul
Ducey and Diane Elizabeth Ducey; Scott Somerville
and Renee Somerville; Theodore H. Corriher; Pamela
Robinson McGuire and Johnny Reginald McGuire;
John Martin McCoy and Susan Knight McCoy; James
Thomas Carroll and Elizabeth L. Carroll; Eric C.
Haynes and Tonya M. Haynes; David W. Gerard
Trust and Barbara A. Gerard Trust; Scott M. Hopkins
and Nancy A. Hopkins; Lester Franklin Eaker; Jr
and Dyra R. Eaker; Garland Hughes; David W. Milkins
and Patricia M. Milkins; and Robert S. Weller and
Elizabeth A. Weller.
 iv

CORPORATE DISCLOSURE STATEMENT

Sunset Keys, LLC has no parent company and
no public company owns 10% or more of its stock.
 v

LIST OF PROCEEDINGS

North Carolina Supreme Court

No. 398PA21, published as 384 N.C. 275, 283,
886 S.E.2d 99, 105, reh’g denied, 887 S.E.2d 887
(N.C. 2023)
Duke Energy Carolinas, LLC, v. Michael L. Kiser,
Robin S. Kiser, and Sunset Keys, LLC, v. Thomas E.
Schmitt and Karen A. Schmitt, Et Al.
Final Opinion Date: April 28, 2023
__________________

North Carolina Court of Appeals

(Interlocutory)
No. 2021-NCCOA-558, published as 867 S.E.2d 1, 7,
review allowed, 867 S.E.2d 666 (N.C. 2022), and
review allowed, writ allowed, 867 S.E.2d 668
(N.C. 2022), and review allowed, 867 S.E.2d 670
(N.C. 2022), and rev'd, 384 N.C. 275, 886 S.E.2d 99
(2023), reh'g denied, 887 S.E.2d 887 (N.C. 2023)
Duke Energy Carolinas, LLC, Plaintiff, v.
Michael L. Kiser, Robin S. Kiser, and Sunset Keys,
LLC, Defendants/Third-Party Plaintiffs, v.
Thomas E. Schmitt and Karen A. Schmitt, Et Al.,
Third-Party Defendants.
Final Opinion Date: October 19, 2021
 vi

State of North Carolina, County of Catawba,

General Court of Justice Superior Division

No. 17 CVS 194

Duke Energy Carolinas, LLC, Plaintiff, v. Michael L.

Kiser, Robin S. Kiser, and Sunset Keys, LLC,
Defendants/Counterclaim Plaintiffs.

Michael L. Kiser, Robin S. Kiser, and Sunset Keys,

LLC, Third-Party Plaintiffs, v. Thomas E. Schmitt
and Karen a. Schmitt, Et Al., Third-Party
Defendants/Counter Claimants.
Judgment Date: January 2, 2020

.
 vii

TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................ i
PARTIES TO THE PROCEEDINGS ......................... ii
CORPORATE DISCLOSURE STATEMENT ........... iv
LIST OF PROCEEDINGS .......................................... v
TABLE OF AUTHORITIES ...................................... xi
PETITION FOR A WRIT OF CERTIORARI ............. 1
OPINIONS BELOW ................................................... 1
JURISDICTION.......................................................... 2
CONSTITUTIONAL PROVISIONS INVOLVED...... 2
STATEMENT OF THE CASE .................................... 3
A. Summary of Law .............................................. 3
B. Background of the Case ................................... 4
REASONS FOR GRANTING THE PETITION ......... 8
I. IT IS TIME TO RECOGNIZE THE JUDICIAL
TAKINGS DOCTRINE WHEN STATE ACTORS
UNPREDICTABLY DESTROY LONG-HELD
PRIVATE PROPERTY RIGHTS ............................... 8
II. BY UPHOLDING THE TRIAL COURT ORDER IN
ITS ENTIRETY THE NORTH CAROLINA
SUPREME COURT FINALIZED THE TAKING OF
280.4 ACRES OF REAL PROPERTY WITHOUT
ANY POTENTIAL FOR JUST COMPENSATION ..... 11
A. The North Carolina Supreme Court
Committed a Judicial Taking When It
Reversed the North Carolina Court of
Appeals. ..................................................... 11
 viii

TABLE OF CONTENTS – Continued

Page
B. In Addition to the Improper Taking,
the North Carolina Supreme Court
Finalized the Constitutional Harm
When It Foreclosed All Opportunity to
Provide for a Means to Obtain
Compensation for the Transfer and
Ouster of 280.4 Acres of Land. ................. 15
III. THE NORTH CAROLINA SUPREME COURT
INTENTIONALLY ATTEMPTED TO SIDE-STEP
THE JUST COMPENSATION REQUIREMENT BY
CREATING NON-EXISTENT, SUDDEN AND
UNPREDICTABLE STATE LAW IN
DEROGATION OF THE U.S. CONSTITUTION ....... 16
A. In Addition to Purposefully Attempting
to Avoid the Jurisdiction of This Court,
the North Carolina Supreme Court
Changed Long-Established Real
Property Rights and Ignored Its Own
Law and Precedent to Piece Together
Its Holding. ............................................... 17
IV. NO ADEQUATE OR INDEPENDENT STATE
GROUNDS EXIST TO JUSTIFY THE
CONSTITUTIONAL VIOLATIONS IN THIS CASE ... 23
A. For Purposes of the Public Trust
Doctrine, Under North Carolina Law
the Navigability Analysis for Artificial
Watercourses Focuses on the State of
the Stream Before Impoundment. ........... 24
 ix

TABLE OF CONTENTS – Continued

Page
B. The Public Trust Analysis Focuses
Only on Whether the Kiser Lake Parcel
Can Be Navigated by the Public at
Large and Has No Application to the
Dock Trespass Claims............................... 28
C. The Scope of This Appeal Concerns
Only the Declaratory Judgment
Granting Title to Third-Parties
Through Duke’s Authority as a Federal
License Holder. ......................................... 29
CONCLUSION.......................................................... 30
 x

TABLE OF CONTENTS – Continued

Page
APPENDIX TABLE OF CONTENTS
OPINIONS AND ORDERS
Opinion, Supreme Court of North Carolina
(April 28, 2023) ................................................... 1a
Opinion, Court of Appeals of North Carolina
(October 19, 2021) ............................................ 17a
Order and Declaratory Judgment,
General Court of Justice Superior Division
(January 2, 2020).............................................. 41a
REHEARING ORDER
Order Denying Petition for Rehearing, Supreme
Court of North Carolina (June 20, 2023)......... 70a
OTHER DOCUMENTS
Petition for Rehearing
(June 2, 2023) ................................................... 73a
Brief of Appellants Michael L. Kiser,
Robin S. Kiser and Sunset Keys, LLC
(July 20, 2020) ................................................. 81a
Flood Easement (1961) ......................................... 100a
 xi

TABLE OF AUTHORITIES
Page
TABLE OF AUTHORITIES

CASES
Adams v. Kalmar,
226 N.C.App. 583, 741 S.E.2d 513 (2013) ........ 20
Archbold-Garrett v. New Orleans City,
893 F.3d 318 (2018) ........................................... 10
Barwick v. Rouse,
245 N.C. 391, 95 S.E.2d 869 (1957) .................. 29
Bauman v. Woodlake Partners, LLC,
199 N.C.App. 441, 681 S.E.2d 819 (2009) ... 26-28
Borders v. Yarbrough,
237 N.C. 540, 75 S.E.2d 541 (1953) ............ 19, 21
Brown v. Legal Foundation of Wash.,
538 U.S. 216, 123 S.Ct. 1406,
155 L.E.2d 376 (2003) ....................................... 11
Carolina Power & Light Co. v. Clark,
243 N.C. 577, 91 S.E.2d 569 (1956) .................. 16
Chesson v. Jordan,
224 N.C. 289, 29 S.E.2d (1944) ......................... 19
Coastal Plains Utilities, Inc. v. New Hanover
County, 166 N.C. App. 333,
601 S.E.2d 915 (2004) ................................. 24, 25
Crisp v. Nantahala Power & Light Co.,
201 N.C. 46, 158 S.E. 845 (1931) ...................... 16
Demorest v. City Bank Farmers Trust Co.,
321 U.S. 36, 64 S.Ct. 384 (1944) ....................... 17
Dolan v. City of Tigard,
512 U.S. 374, 114 S. Ct. 2309,
129 L.Ed.2d 304 (1994) ....................................... 3
 xii

TABLE OF AUTHORITIES – Continued

Page
Duke Energy Carolinas, LLC v. Kiser,
384 N.C. 275, 886 S.E.2d 99 (N.C. 2023) .......... 22
Dunlap v. CP&L,
212 N.C. 814, 195 S.E. 43 (1938) ...................... 24
Fabrikant v. Currituck County,
174 N.C.App. 30 (2005) ..................................... 28
Federal Power Comm. v. Niagara Mohawk
Power Corp., 347 U.S. 239,
74 S.Ct. 487, 98 L.Ed. 666 (1954) ................. 7, 14
Fish House, Inc. v. Clarke,
204 N.C.App. 130 (2010) ................................... 26
Grimes v. Virginia Electric & Power Co.,
245 N.C. 583, 96 S.E.2d 713 (1957) .................. 16
Grove v. Groome,
817 Fed.Appx. 551 (2020).................................... 9
Gwathmey v. State Through Dep’t of Env’t,
Health, & Nat. Res. Through Cobey,
342 N.C. 287, 464 S.E.2d 674 (1995) ........... 24-26
Hagler v. Hagler,
319 N.C. 287, 354 S.E.2d 228 (1987) .......... 20, 21
Hales v. Atlantic Coast Line Railroad Co.,
172 N.C. 104, 90 S.E. 11 (1916) ........................ 19
Hartford Accident & Indem. Co. v. Hood,
226 N.C. 706, 40 S.E.2d 198 (1946) ............ 20, 21
Hildebrand v. Southern Bell Tel. & Tel. Co.,
219 N.C. 402, 14 S.E.2d 252 (1941) .................. 16
Hine v. Blumenthal,
239 N.C. 537, 80 S.E.2d 458 (1954) .................. 19
 xiii

TABLE OF AUTHORITIES – Continued

Page
Hodges v. Western Union Telegraph Co.,
133 N.C. 225, 45 S.E. 572 (1903) ...................... 16
Hughes v. State of Washington,
389 U.S. 290 (1967) ................................. 9, 17, 18
Hundley v. Michael,
105 N.C. App. 432 (1992) ...................... 19, 22, 23
Keener v. Arnold,
161 N.C. App. 634, 589 S.E.2d 731 (2003) ....... 29
Knick v. Township of Scott, Pennsylvania,
139 S.Ct. 2162 (2019) ........................................ 10
Knight v. Metropolitan Government of
Nashville & Davidson County, Tennessee,
67 F.4th 816 (2023) ............................................. 9
Lane v. Scarborough,
284 N.C. 407, 200 S.E.2d 622 (1973) ................ 21
Loretto v. Teleprompter Manhattan CATV
Corp., 458 U.S. 419, 102 S.Ct. 3164 (1982) ...... 12
Lovin v. Crisp,
36 N.C. App. 185, 243 S.E.2d 406 (1978) ......... 20
Lucas v. South Carolina Coastal Council,
505 U.S. 1003 (1992) .................................... 11-13
McCutchen v. United States,
14 F.4th 1355 (2021) ......................................... 10
Monongahela Nav. Co. v. United States,
148 U.S. 312, 13 S. Ct. 622,
37 L. Ed. 463 (1893) .......................................... 15
 xiv

TABLE OF AUTHORITIES – Continued

Page
Nollan v. California Coastal Comm’n,
483 U.S. 825, 107 S.Ct. 3141,
97 L.Ed.2d 677 (1987) ....................................... 12
Pavlock v. Holcomb,
35 F.4th 581 (2022) ............................................. 9
Petition of Howser,
227 F.Supp. 81 (1964) ....................................... 27
Petro-Hunt, L.L.C. v. United States,
862 F.3d 1370 (2017) ......................................... 10
PPW Royalty Tr. by & through Petrie v.
Barton, 841 F.3d 746 (8th Cir. 2016) .................. 9
Proprietors of Charles River Bridge v.
Proprietors of Warren Bridge,
36 U.S. 420, 9 L. Ed. 773 (1837) ....................... 11
Pumpelly v. Green Bay & Mississippi Canal
Co., 80 U.S. 166, 20 L. Ed. 557 (1871) ................ 4
Pumpelly v. Green Bay Co.,
13 Wall. 166, 20 L.E.d. 557 (1872) ...................... 4
Rouse v. City of Kinston,
188 N.C. 1, 123 S.E. 482, 35 A.L.R. 1203
(1924) ................................................................. 16
Sansotta v. Town of Nags Head,
724 F.3d 533 (2013) ........................................... 10
Shinnecock Indian Nation v. United States,
112 Fed. Cl. 369 (2013) ....................................... 3
Smith v. United States,
709 F.3d 111 (Fed. Cir. 2013) ............................. 3
 xv

TABLE OF AUTHORITIES – Continued

Page
State v. Baum,
128 N.C. 600, 38 S.E.2d. 900 (1901) ............ 24-26
State v. Philip Morris USA Inc.,
359 N.C. 763, 618 S.E.2d 219 (2005) ................ 21
Stop the Beach Renourishment, Inc. v.
Fla. Dep’t of Env’t Prot.,
560 U.S. 702, 130 S. Ct. 2592,
177 L. Ed. 2d 184 (2010) ......................... 3-4, 8-10
Straw v. United States,
4 F.4th 1358 (2021) ........................................... 10
Teeter v. Postal Telegraph-Cable Co.,
172 N.C. 783, 90 S.E. 941 (1916) ...................... 16
Town of Nags Head v. Cherry, Inc.,
219 N.C. App. 66 (2012) .................................... 28
Transportation Co. v. Chicago,
99 U.S. 635, 25 L.Ed. 336 (1879) ...................... 11
United States v. Causby,
328 U.S. 256, 66 S.Ct. 1062,
90 L.Ed.1206 (1946) ............................................ 4
Webb’s Fabulous Pharmacies, Inc. v. Beckwith,
449 U.S. 155, 101 S. Ct. 446,
66 L.Ed.2d 358 (1980) ....................................... 12
Westinghouse Elec. Supply Co. v. Burgess,
223 N.C. 97, 25 S.E.2d 390 (1943) .................... 21
Weyerhaeuser Co. v. Carolina Power & Light
Co., 257 N.C. 717, 127 S.E.2d 539 (1962) ... 21, 22
Young v. City of Asheville,
241 N.C. 618, 86 S.E.2d 408 (1955) .................. 25
 xvi

TABLE OF AUTHORITIES – Continued

Page
Zagaroli v. Pollock,
94 N.C. App. 46,
379 S.E.2d 653 (1989) ........................ 7, 13-14, 28

CONSTITUTIONAL PROVISIONS
U.S. Const. amend. V ................................ i, 2-4, 11, 30
U.S. Const. amend. XIV ....................................... i, 3, 8

STATUTES
28 U.S.C. § 1257(a) ..................................................... 2

JUDICIAL RULES
NC R. Civ. P. 54(b) ...................................................... 7

OTHER AUTHORITIES
Barton H. Thompson, Jr.,
Judicial Takings,
76 VA. L. REV. 1449 (1990) .................................. 3
 1

PETITION FOR A WRIT OF CERTIORARI

NOW COME PETITIONERS, Sunset Keys, LLC,
Michael L. Kiser and Robin S. Kiser, Petitioners/
Appellees, by and through their appellate attorneys,
respectfully petitioning this Court for a writ of
certiorari to review the judgment of the North Carolina
Supreme Court.

OPINIONS BELOW
The North Carolina Supreme Court’s Opinion
(App.1a) reversing without remand the unanimous
North Carolina Court of Appeals Opinion in Duke
Energy Carolinas, LLC v. Michael L. Kiser et al., 384
N.C. 275, 283, 886 S.E.2d 99, 105, reh’g denied, 887
S.E.2d 887 (N.C. 2023). The unanimous North Caro-
lina Court of Appeals decision (App.17a) in 2021-
NCCOA-558, ¶ 13, 280 N.C. App. 1, 6, 867 S.E.2d 1,
7, review allowed, 867 S.E.2d 666 (N.C. 2022), and
review allowed, writ allowed, 867 S.E.2d 668 (N.C.
2022), and review allowed, 867 S.E.2d 670 (N.C. 2022),
and rev’d, 384 N.C. 275, 886 S.E.2d 99 (2023), reh’g
denied, 887 S.E.2d 887 (N.C. 2023). The Trial Court
Order in the Catawba County, North Carolina Superior
Court (App.41a) transferring title.
 2

JURISDICTION
The North Carolina Supreme Court reversed the
unanimous North Carolina Court of Appeals Opinion
on April 28, 2023. App.2a. Petitioners timely filed a
Petition for Rehearing on June 2, 2023. The Petition
for Rehearing was denied by the North Carolina
Supreme Court on June 20, 2023. App.70a. Petitioners
invoke this Court’s jurisdiction pursuant to 28 U.S.C.
§ 1257(a) and file within the time required within
ninety (90) days from the North Carolina Supreme
Court’s denial of a timely filed Petition for Rehearing
which was denied on June 20, 2023.

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const. amend. V

No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a present-
ment or indictment of a grand jury, except in
cases arising in the land or naval forces, or in
the militia, when in actual service in time of war
or public danger; nor shall any person be subject
for the same offense to be twice put in jeopardy
of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor
be deprived of life, liberty, or property, without
due process of law; nor shall private property be
taken for public use, without just compensation.
 3

U.S. Const. amend. XIV, § 1

All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the state
wherein they reside. No state shall make or
enforce any law which shall abridge the privileges
or immunities of citizens of the United States;
nor shall any state deprive any person of life,
liberty, or property, without due process of law;
nor deny to any person within its jurisdiction
the equal protection of the laws.

STATEMENT OF THE CASE

A. Summary of Law
This Court reviews a state court of last resort
when property is taken “without just compensation in
violation of the Takings Clause of the Fifth Amend-
ment, as applied against the States through the
Fourteenth.” Stop the Beach Renourishment, Inc. v.
Fla. Dep’t of Env’t Prot., 560 U.S. 702, 707, 130 S. Ct.
2592, 2597, 177 L. Ed. 2d 184 (2010) (quoting Dolan v.
City of Tigard, 512 U.S. 374, 383-384, 114 S. Ct. 2309,
129 L.Ed.2d 304 (1994)). State actors cannot bypass
the Fifth Amendment by declaring what was once an
“established right of private property no longer exists”.
Smith v. United States, 709 F.3d 111, 1116-17 (Fed.
Cir. 2013) (citing Barton H. Thompson, Jr., Judicial
Takings, 76 VA. L. REV. 1449 (1990)). See Shinnecock
Indian Nation v. United States, 112 Fed. Cl. 369, 385
(2013), aff’d in part, vacated in part, remanded, 782
F.3d 1345 (Fed. Cir. 2015).
 4

The most obvious form of a taking is when

property is literally conveyed (as it was here) from
one party to another forcibly, but also consists of where
the use of a property is curtailed in such a way that
it destroys private property. (See United States v.
Causby, 328 U.S. 256, 261-262, 66 S.Ct. 1062, 90 L.Ed.
1206 (1946); Pumpelly v. Green Bay Co., 13 Wall. 166,
177-178, 20 L.E.d. 557 (1872)). The Takings Clause
simply and succinctly states “nor shall private property
be taken for public use, without just compensation,”
U.S. Const., amend. V. The Takings Clause is solely
focused on the act of taking and not the actor com-
mitting the taking. See Stop the Beach Renourishment,
Inc. v. Fla. Dep’t of Env’t Prot., 560 U.S. 702, 713-15,
130 S. St. 2592, 2601-02, 177 L. Ed. 2d 184 (2010).
Thus, the injury lies in the act of taking and not
who did the taking. Stop the Beach at 2592. The
Federal Government “ . . . retains no right to take that
land for public use without just compensation, nor
does it confer such a right on the State within which
it lies . . . .” Pumpelly v. Green Bay & Mississippi
Canal Co., 80 U.S. 166, 182, 20 L. Ed. 557 (1871).
This Court’s takings jurisprudence reflects the “settled
principle of universal law that the right to compen-
sation is an incident to the exercise of [the power to
take] that the one is so inseparable connected with the
other that they may be said to exist, not as separate
and distinct principles, but as parts of one and the
same principle. Pumpelly v. Green Bay Co., 13 Wall.
166, 178.
B. Background of the Case
This case arose from a dispute between Duke
Energy Carolinas, LLC (“Duke”) and Michael L. Kiser
and Robin Kiser regarding a retaining wall (the
 5

“Wall”) installed by Mr. Kiser in the lakebed of Lake

Norman (the “Lake”) upon land owned by Mr. Kiser
and his brothers in fee simple. The Kiser lake parcel
in question in this litigation (the “Kiser Lake Parcel”)
is encumbered by a flood easement (the “Flood
Easement”) granted to Duke as the Lake was originally
impounded.
Duke commenced this action against Michael L.
Kiser (“Mr. Kiser”) and Robin Kiser (“Ms. Kiser”) by
the filing of a complaint and issuance of summons on
January 27, 2017 seeking the removal of a retaining
wall the Kisers had constructed on their own land.
The Kisers answered and counterclaimed, and were
subsequently required by the court to add third-parties
(the “Third-Parties”) on February 13, 2017. Ultimately
the entity Sunset Keys, LLC (“Sunset Keys”) was added
as a third-party plaintiff. Sunset Keys is owned by
Mr. Kiser and his two brothers. The Kisers and Mr.
Kiser’s brothers are referred to collectively together
with their entity Sunset Keys, as the “Kisers”.
The property at issue in this case was owned by
Mr. Kiser’s grandparents, B. L. Kiser and Zula C. Kiser
(the “Kiser Grandparents”). Prior to the construction
of the dam and the impoundment of Lake, the Kiser
Grandparents owned a large parcel (the “Original
Parcel”) of land covering portions of what is now the
Lake and “Kiser Island”. The Kiser Grandparents
are now deceased. The ownership of the Kiser Lake
Parcel predates the construction of the Cowan’s Ford
Dam (the “Dam”), which impounds the water that
forms the Lake.
Sometime prior to the construction of the Dam,
Duke purchased the majority of the land that would
eventually form the bed of Lake (the “Lake Bed”).
 6

Unlike the majority of owners who held property in

what would become the Lake Bed, the Kiser Grand-
parents declined to sell their land to Duke in fee
simple. Ultimately, they would only agree to grant
Duke the limited Flood Easement across the Kiser
Lake Parcel.
The Flood Easement sets the boundary (the “Flood
Boundary”) at which Duke’s Easement terminates
at the dry property, and specifies each of Duke’s
particular rights to enter upon the Kiser Property.
After the death of Mr. Kiser’s father in March of
2016, he and his two brothers became the owners of
the Kiser Lake Parcel. The Kiser Lake Parcel was
then conveyed to Sunset Keys.
Over the years, the Third Parties have installed
docks, ramps and other structures (collectively
the “Structures”) that are located on, over and/or are
affixed to the Kiser Lake Parcel. On August 13, 2018,
The Honorable Judge Nathaniel Poovey, Catawba
County Superior Court Judge presiding, heard argu-
ment on Duke’s Motion for Partial Summary Judg-
ment, and issued a judgment that was entered on
August 22, 2018, which required the Kisers to remove
the retaining wall.
Subsequently, Duke and the Third-Party defend-
ants filed for summary judgment as to the Kisers’
counterclaims for trespass and declaratory judgment
and a judgment and order granting summary judgment
was entered on January 2, 2020. The last paragraph
of the Trial Court’s January 2, 2020 Order, granting
in part Plaintiffs/Appellees’ and the Third Parties’
motions for summary judgment, set forth the following
declaration:
 7

Accordingly, while this Order and Declara-

tory Judgment does not dispose of all the
claims in this action, it is nevertheless the
Court’s final judgment with respect to the
claims addressed and disposed of herein,
and the Court finds pursuant to Rule 54(b)
of the North Carolina Rule of Civil Procedure
that there is no just reason for delay in the
entry of final judgment with respect to those
claims.
App.48a.
The North Carolina Court of Appeals reversed
the Trial Court Order and remanded for trial consistent
with its holding in part that federal regulations “do
not abolish private proprietary rights” and “to hold
otherwise would in effect authorize the taking of
property without just compensation” quoting this
Court and a prior North Carolina Court of Appeals
decision on the same grounds. Zagaroli v. Pollock, 94
N.C. App. 46, 54, 379 S.E.2d 653, 657 (1989) quoting
Federal Power Comm. v. Niagara Mohawk Power
Corp., 347 U.S. 239, 250-51, 74 S.Ct. 487, 494, 98 L.Ed.
666, 676 (1954). After the unanimous decision by
the North Carolina Court of Appeals remanding this
interlocutory appeal for trial, Duke and the Third
Parties petitioned the North Carolina Supreme Court
for discretionary review on February 11, 2022.
The North Carolina Supreme Court reversed the
entire North Carolina Court of Appeals decision,
thereby reverting in full to the Trial Court Order and
the conveyance of title and ouster of Sunset Keys.
 8

REASONS FOR GRANTING THE PETITION

I. IT IS TIME TO RECOGNIZE THE JUDICIAL
TAKINGS DOCTRINE WHEN STATE ACTORS
UNPREDICTABLY DESTROY LONG-HELD PRIVATE
PROPERTY RIGHTS.
In a plurality opinion, this Court in Stop the Beach
Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560
U.S. 702, 734-35, 130 S. Ct. 2592, 2614, 177 L.Ed. 2d
(2010) (“Stop the Beach”) fell one vote short to fully
recognize the doctrine of judicial takings. Although six
justices agreed in Stop the Beach that the Constitution
offers protection for property owners against judicial
decisions, the question remains whether a case, as
here where all property rights were extinguished, a
party aggrieved by a surprising decision of a state’s
highest court has recourse in the federal court system
for a compensation claim.
This Court has already found it necessary enough
to grant review in a judicial takings context and the
time is ripe to revisit this important issue of Consti-
tutional protection. See Stop the Beach generally. It
remains unclear whether this Court is the final/only
stop for review of a judicial taking or whether a
lower federal court obtains jurisdiction upon the final
pronouncement of a state supreme court denying
constitutional safeguards. As Justice Stewart stated
in his concurrence speaking of takings jurisprudence,
“[b]ecause the Due Process Clause of the Fourteenth
Amendment forbids such confiscation by a State, no
less through its courts than through its legislature,
and no less when a taking is unintended than when
 9

it is deliberate, I join in reversing the judgment.”

Hughes at 443. The facts of this case make it perfect
to finally recognize the judicial takings doctrine as
the law of the land. This Court would be hard-pressed
to find another case where private property rights
were unexpectedly obliterated by a judicial opinion.
Where the facts fell short in Stop the Beach, this case
takes the baton in full sprint as the land at issue in
this petition was completely taken from the Petitioner.
App.48a. At this moment, Petitioner does not have a
stick left in its previous bundle. Id.
Because of the plurality decision in Stop the Beach
many courts have been cautious to recognize the
judicial takings doctrine. Even though the doctrine
extends back to the Constitution, a curious phenom-
enon has occurred recently as the decision has recently
become a problem for the federal circuits.
The Seventh Circuit in Pavlock v. Holcomb, 35
F.4th 581 (2022) stated that judicial takings “does not
necessarily mean that it applies to the states’ judi-
ciaries.” Id. at 586. The Tenth Circuit is on the fence.
See Grove v. Groome, 817 Fed.Appx. 551 (2020) (giving
lip service to Stop the Beach but falling short of
applying its reasoning fully). The Eighth Circuit seems
the most hostile to a judicial takings case. See PPW
Royalty Tr. by & through Petrie v. Barton, 841 F.3d
746, 756 (8th Cir. 2016), as amended (Oct. 28, 2016)
(refusing to allow a malpractice claim based on
attorney failing to bring a judicial taking claim).
The Sixth Circuit has recently embraced the
doctrine of judicial takings. Knight v. Metropolitan
Government of Nashville & Davidson County,
Tennessee, 67 F.4th 816 (2023) (Quoting Stop the Beach
without qualification and remanding to District Court
 10

for appropriate remedy). The Fourth and Fifth Circuit

seem ready to apply Stop the Beach’s reasoning in
light of this Court’s decision in Knick v. Township of
Scott, Pennsylvania, 139 S.Ct. 2162 (2019). See
Archbold-Garrett v. New Orleans City, 893 F.3d 318
(2018); see also Sansotta v. Town of Nags Head, 724
F.3d 533 (2013).
Aside from the obvious circuit split between the
Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and
Tenth Federal Circuits, the one that is the most
entertaining is the Federal Circuit. There seems to
be a split within a split. In Straw v. United States, 4
F.4th 1358 (2021) and Petro-Hunt, L.L.C. v. United
States, 862 F.3d 1370 (2017) the Federal Circuit is
clear that it will not step in to scrutinize the lower
court’s property analysis. Petro-Hunt at 1377; Straw
at 1362 (both exercising restraint about opining on
the lower court opinions); but see McCutchen v.
United States, 14 F.4th 1355 (2021) (quoting Stop the
Beach in its reasoning but holding a property right
did not exist in the “machineguns”). If this Court
refuses to weigh in promptly, the judicial takings
doctrine is bound to continue to cause problems within
the circuits and is at risk of becoming obsolete. Since
the doctrine arises from the Constitution itself,
embracing it only brings the state of the Country
closer to the Constitutional Republic that it is supposed
to be.
 11

II. BY UPHOLDING THE TRIAL COURT ORDER IN

ITS ENTIRETY THE NORTH CAROLINA SUPREME
COURT FINALIZED THE TAKING OF 280.4 ACRES
OF REAL PROPERTY WITHOUT ANY POTENTIAL
FOR JUST COMPENSATION.

Only through the proper use of eminent domain

can a governmental or quasi-governmental entity
seize private property, and only then with just com-
pensation. Proprietors of Charles River Bridge v.
Proprietors of Warren Bridge, 36 U.S. 420, 458-59, 9 L.
Ed. 773 (1837) (holding just compensation is a funda-
mental part of eminent domain law). Under a Fifth
Amendment analysis, any “ . . . taking must be for a
‘public use’ and ‘just compensation’ must be paid to
the owner.” Brown v. Legal Foundation of Wash., 538
U.S. 216, 231-232, 123 S.Ct. 1406, 155 L.E.2d 376
(2003).

A. The North Carolina Supreme Court

Committed a Judicial Taking When It
Reversed the North Carolina Court of
Appeals.
In Lucas v. South Carolina Coastal Council, this
Court reiterated that a “practical ouster of [the owner’s]
possession” would amount to a “direct appropria-
tion” of property. 505 U.S. 1003, 1013 (1992) quoting
Transportation Co. v. Chicago, 99 U.S. 635, 642, 25
L.Ed. 336 (1879). The Lucas Court went on to state
“[b]ecause it is not consistent with the historical
compact embodied in the Takings Clause that title to
real estate is held subject to the State’s subsequent
decision to eliminate all economically beneficial use,
a regulation having that effect cannot be newly decreed,
and sustained, without compensation’s being paid
 12

the owner.” Lucas at 1004. When an owner “has been

called upon to sacrifice all economically beneficial
uses in the name of the common good, that is, to
leave his property economically idle, he has suffered
a taking.” Lucas at 1019.
This Court went on to define two clear actions
that act as a taking without an ad hoc case specific
inquiry. “The first encompasses regulations that compel
the property owner to suffer a physical ‘invasion’ of
his property. In general (at least with regard to
permanent invasion), no matter how minute the
intrusion, and no matter how weighty the public
purpose behind it, we have required compensation.”
Lucas at 1015. “The Second situation in which we
have found categorical treatment appropriate is where
regulation denies all economically beneficial or pro-
ductive use of land.” Lucas at 1015; see also Nollan v.
California Coastal Comm’n, 483 U.S. 825, 834, 107
S.Ct. 3141, 3147, 97 L.Ed.2d 677 (1987); see also Loretto
v. Teleprompter Manhattan CATV Corp., 458 U.S.
419, 426, 102 S.Ct. 3164, 3171 (1982).
In order to understand where the North Carolina
Supreme Court went astray, a close examination of
the Trial Court Order is necessary. The Trial Court
Order ousted the Kisers from 280.4 acres of property
without their consent and without compensation.
App.48a. The Trial Court Order also conveyed land
to the Third Parties without compensation. App.42a.
This transfer was wholly improper as the “State, by
ipse dixit, may not transform private property into
public property without compensation . . . .” Webb’s
Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155,
164, 101 S. Ct. 446, 452, 66 L.Ed.2d 358 (1980).
 13

In the instant case we have both types of per se

takings mentioned in Lucas above. Lucas at 1015.
First, there are permanent invasions of property
through the transfer of title to the Third Parties
without compensation. Second, there is the removal of
all economical uses of the Kiser Lake Parcel via the
Trial Court Order and ouster therein. Id. There is no
doubt that a taking occurred when the North Carolina
Supreme Court rendered its Opinion reversing the
entire Court of Appeals opinion and denied rehearing.
Here there was no “practical” ouster, but an actual
ouster. App.48a. Sunset Keys has no property interest
left in the Kiser Lake Parcel. Regardless of how the
Trial Court Order is interpreted concerning the ouster,
it is abundantly clear that all economic value has
been destroyed by the Opinion as to the entire 280.4
acres.
North Carolina law is in lockstep with this Court
on this issue as well. If anything, North Carolina law
construes eminent domain under the public trust
doctrine more strictly than federal law. In Zagaroli v.
Pollock, 94 N.C. App. 46, 379 S.E.2d 653 (1989), the
North Carolina Court of Appeals squarely addressed
the limits of Duke’s authority to grant usage rights on
the surface of impounded lakes where a flood ease-
ment is involved.1 Zagaroli at 658. Pursuant to a
1 The Zagaroli case also had a similar easement that read “all
riparian rights”. Here, the Easement refers to “absolute water
rights”. “Rights” being the same word, “all” and “absolute” being
synonyms and “riparian” simply meaning water, the grant of
authority under the Zagaroli easement and the Easement here are
essentially the same. Moreover, the Zagaroli easement provided
Duke with the “exclusive right to determine use”, while the Flood
Easement states, “treat in any manner”. If anything, the Zagaroli
easement is broader in scope than the Easement at issue here.
 14

permit granted by Duke, the Zagaroli defendants

operated a marina on and above a portion of lakebed
property owned by the Zagaroli plaintiff. Id. at 654.
The defendants claimed (as Duke and the Third
Parties claim here) that the Federal Power Act gave
Duke the “exclusive right to determine the use of the
lake’s surface waters.” Zagaroli at 657. The Court of
Appeals disagreed, finding that “while the Federal
Power Act vests substantial authority in the power
companies who obtain licenses from the Federal Energy
Commission (FERC) . . . the Federal Power act did not
abolish private proprietary rights.” Zagaroli at 658
(emphasis added).
Thus, the Zagaroli Court stated in quoting this
Court, “the Federal Power Act does not give Duke
Power the authority to grant defendants the right to
use plaintiff’s property without the assent of the plain-
tiff.” Zagaroli at 54 quoting Federal Power Comm. v.
Niagara Mohawk Power Corp., 347 U.S. 239, 250-51,
74 S.Ct. 487, 494, 98 L.Ed. 666, 676 (1954). Any
contrary holding would amount to a taking of property
without just compensation. Id. Unfortunately, the
North Carolina Supreme Court came to a completely
different conclusion in violation of the takings clause.
The complete deprivation of any economical benefit
coupled with the ouster of Sunset Keys is a clear-cut
taking.
 15

B. In Addition to the Improper Taking, the

North Carolina Supreme Court Finalized
the Constitutional Harm When It Fore-
closed All Opportunity to Provide for a
Means to Obtain Compensation for the
Transfer and Ouster of 280.4 Acres of
Land.
It is axiomatic that a taking can only happen in
connection with just compensation. See Monongahela
Nav. Co. v. U.S., 148 U.S. 312, 337, 13 S. Ct. 622, 37
L. Ed. 463 (1893). “It is true that one cannot be
deprived of his property without due process of law,
and that private property cannot be taken for public
use without just compensation.” Monongahela at 339.
When it comes to the just compensation requirement
it eases the burden and “prevents the public from
loading upon one individual more than his just share
of the burdens of government.” Monongahela Nav.
Co. v. United States, 148 U.S. 312, 325, 13 S.Ct. 622,
37 L.Ed. 463 (1893).
Even if the judicial taking that occurred here
was somehow justified, without a contemporaneous
chance for compensation, Sunset Keys has been denied
a Constitutional remedy for due process. Regardless
of who actually owns the Kiser Lake Parcel now, due
to the ouster, the Kisers have lost their rights to the
land and should be compensated for that loss. In this
case any post-deprivation remedy was foreclosed. The
North Carolina Supreme Court merely overturned the
entire North Carolina Court of Appeals decision and
upheld the Trial Court Order transferring property
without just compensation. In fact the taking was
done without any compensation or method to deter-
mine the compensation due.
 16

With regard to the federal regulations mentioned

in the Opinion, under North Carolina law a person is
not bound by other contracts of which they are not a
party. Grimes v. Virginia Electric & Power Co., 245
N.C. 583, 96 S.E.2d 713 (1957). Thus, “[a]ny additional
burden beyond the grant entitles the landowner to just
compensation.” Id. at 714 citing to Carolina Power &
Light Co. v. Clark, 243 N.C. 577, 91 S.E.2d 569; Hilde-
brand v. Southern Bell Tel. & Tel. Co., 219 N.C. 402,
14 S.E.2d 252; Crisp v. Nantahala Power & Light Co.,
201 N.C. 46, 158 S.E. 845; Rouse v. City of Kinston,
188 N.C. 1, 123 S.E. 482, 35 A.L.R. 1203; Teeter v.
Postal Telegraph-Cable Co., 172 N.C. 783, 90 S.E. 941
and Hodges v. Western Union Telegraph Co., 133 N.C.
225, 45 S.E. 572. In this case, compensation was
completely and improperly foreclosed by the Opinion.
III. THE NORTH CAROLINA SUPREME COURT INTEN-
TIONALLY ATTEMPTED TO SIDE-STEP THE JUST
COMPENSATION REQUIREMENT BY CREATING
NON-EXISTENT, SUDDEN AND UNPREDICTABLE
STATE LAW IN DEROGATION OF THE U.S.
CONSTITUTION.
Aside from the Constitutional Violations the North
Carolina Supreme Court turned North Carolina real
property law on its head and allowed a transfer of fee
simple title (1) from an easement holder and (2) to
parties who were never conveyed title. The North
Carolina Supreme Court merely reversed the North
Carolina Court of Appeals opinion and did nothing to
address the actual conveyance and ouster of real
property rights.
 17

A. In Addition to Purposefully Attempting

to Avoid the Jurisdiction of This Court,
the North Carolina Supreme Court
Changed Long-Established Real Property
Rights and Ignored Its Own Law and
Precedent to Piece Together Its Holding.
Regarding State Court decisions, to the “extent
that [they] constitute[ ] a sudden change in state law,
unpredictable in terms of the relevant precedents, no
such deference would be appropriate.” Hughes v. State
of Washington, 389 U.S. 290 (1967). The Opinion was
certainly a sudden change in state law in that it
purports to find a matter of first impression despite
established law holding otherwise. Taking a close
look at North Carolina law shows the Opinion is also
unpredictable in light of its previous precedent.
This principle applies because States “cannot be
permitted to defeat the constitutional prohibition
against taking property without due process of law
by the simple device of asserting retroactively that the
property it has taken never existed at all.” Hughes at
297. Where an “unpredictable change in state law”
arises it “inevitably presents a federal question for the
determination of this Court.” Hughes at 297 citing
Demorest v. City Bank Farmers Trust Co., 321 U.S.
36, 42-43, 64 S.Ct. 384, 388-389 (1944).
Much akin to previous courts on the same issue,
the North Carolina Supreme Court undoubtedly feels
as though its action was not a taking. How could it
take property if it only “clarified” the terms of an
easement in the 1960’s? However, how a state court
rules is not dispositive, instead the focus is on what
it does as this Court in Hughes laid out regarding the
state of Washington:
 18

[O]f course the court did not conceive of this

action as a taking. As is so often the case
when a State exercises its power to make law,
or to regulate, or to pursue a public project,
pre-existing property interests were impaired
here without any calculated decision to
deprive anyone of what he once owned. But
the Constitution measures a taking of prop-
erty not by what a state says, or by what it
intends, but by what it does.
Hughes at 443.
Here, what the Trial Court Order did was transfer
real estate to Third-Parties and destroy all economic
benefit of the underlying fee. App.48a. Even if this
Court feels as though the North Carolina Supreme
Court applied its past precedent perfectly (which it
did not), the elephant in the room is the scope of the
Trial Court Order’s ouster and conveyance of property.
By reversing the North Carolina Court of Appeals,
the Opinion reverted to the Trial Court Order. This
issue was brought before the North Carolina Supreme
Court via a petition for rehearing, but it was denied.
App.70a.
Under the Trial Court Order, property went not
from A to B, but from A to C without compensation and
foreclosed any economic benefit in the Kiser Lake
Parcel. App.48a. This is a taking on every conceivable
level. Sunset Keys cannot build on the Kiser Lake
Parcel, it cannot collect rents and it cannot exclude
others. The entire bundle of sticks that represents
property interests were removed by the Trial Court
Order.
 19

The North Carolina Supreme Court piecemealed

a sudden and unexpected ruling regarding easements
divesting Sunset Keys of its real property interest.
The longstanding rule in North Carolina is that
“[a]bsent explicit language to the contrary, the owner
of land subject to an easement has the right to
continue to use his land in any manner and for any
purpose which is not inconsistent with the reasonable
use and enjoyment of the easement.” Michael at 435
quoting Chesson v. Jordan, 224 N.C. 289, 29 S.E.2d
(1944) (emphasis added). “An easement holder may
not increase his use so as to increase the servitude or
increase the burden upon the servient tenement.”
Michael at 435. “If the easement holder makes an
unwarranted use of the land in excess of the easement
rights held, such use will constitute an excessive use
. . . .” Michael at 435 quoting Hales v. Atlantic Coast
Line Railroad Co., 172 N.C. 104, 90 S.E. 11 (1916).
Unlike transfers of fee simple title, easements do
not require any set formulation or particular words.
Borders v. Yarbrough, 237 N.C. 540 (1953). “In deter-
mining what uses the servient tenement may make
of the land within the easement the court should look
to the words of the deed or instrument creating the
easement.” Hundley v. Michael, 105 N.C. App. 432
(N.C. Ct. App. 1992) quoting Hine v. Blumenthal, 239
N.C. 537, 80 S.E.2d 458 (1954). “One must look at
the language of the deed or instrument rationally
and construe the language consistent with reason
and common sense. If there is any doubt as to the
parties’ intentions, an interpretation should be adopted
which conforms more to the presumed meaning, one
that does not produce an unusual or unjust result.”
Id.
 20

Writing language into an agreement that is not

present in fact or implication based upon the inten-
tion of the parties is error. Hartford Accident & Indem.
Co. v. Hood, 226 N.C. 706, 710, 40 S.E.2d 198, 201
(1946). Further, resorting to extrinsic evidence makes
the interpretation one for trial, not summary judgment.
See Hagler v. Hagler, 319 N.C. 287, 294, 354 S.E.2d
228, 234 (1987) (discussing that when a written con-
tract is unambiguous, free from extrinsic evidence and
does not have disputed facts, then the intention is a
question of law for a court to decide its meaning).
Had the parties intended the language “necessary
or desirable” to be fee-simple words of conveyance as
the Trial Court Order operates, the Flood Easement
would have simply been titled “General Warranty
Deed” or merely recite only that Duke can “ . . . treat the
property in any manner deemed necessary or desirable”
by Duke’s predecessor. A simple half or quarter page
document would suffice where the Flood Easement is
a lengthy document typed on a manual typewriter in
the 1960s. App.100a.
The parties’ intention “is to be gathered from the
entire instrument and not from detached portions.”
Lovin v. Crisp, 36 N.C. App. 185, 189, 243 S.E.2d 406,
409-10 (1978). “Easement holders only have the right
to use their property within the easement consistent
with the purpose for which the easement was created.
Consequently, the owner of the land subject to an
easement has the right to use his land in any manner,
for any purpose which is not inconsistent with the
reasonable use and enjoyment of the existing ease-
ment.” Adams v. Kalmar, 226 N.C.App. 583, 741 S.E.2d
513 (N.C. Ct. App. 2013).
 21

Excerpts from a contract must be “ . . . interpreted

in context with the rest of the agreement.” Weyer-
haeuser Co. v. Carolina Power & Light Co., 257 N.C.
717, 719, 127 S.E.2d 539, 541 (1962), quoting Westing-
house Elec. Supply Co. v. Burgess, 223 N.C. 97, 100,
25 S.E.2d 390 (1943). “If one part of the clause is
within the primary objective of the grant and supported
by the recited consideration, so is the remainder of
the clause.” Weyerhaeuser at 720, 127 S.E.2d at 542.
The meaning of the contract in question cannot include
implications that are inconsistent to the expressed
wording. Lane v. Scarborough, 284 N.C. 407, 410, 200
S.E.2d 622, 625 (1973).
The Trial Court’s Summary Judgment Order
(the “Trial Order”) is more than just an order for
summary judgment regarding what Duke can do or
cannot do as the Opinion sets forth, it is a convey-
ance of real property without consideration. It is also
an improper ouster from the Kisers to the Third Parties
in fee simple. Further, the Trial Order does not specify
metes and bounds and is not sufficient to pass title
on its own. The Opinion leaves more questions than
it answers.
The Opinion correctly cites to Borders v. Yar-
brough, 237 N.C. 540, 75 S.E.2d 541 (1953); Weyer-
haeuser Co. v. Carolina Power & Light Co., 257 N.C.
717, 127 S.E.2d 539 (1962); State v. Philip Morris
USA Inc., 359 N.C. 763, 618 S.E.2d 219 (2005); Lane
v. Scarborough, 284 N.C. 407, 200 S.E.2d 622 (1973);
Hartford Accident & Indem. Co. v. Hood, 226 N.C.
706, 40 S.E.2d 198 (1946), and Hagler v. Hagler, 319
N.C. 287, 354 S.E.2d 228 (1987), but fails to apply
their reasoning in the Opinion.
 22

Unlike the Opinion, the Court in Weyerhaeuser

reviewed the easement right to clear and keep clear
property as “ . . . entire and indivisible.” Weyerhaeuser
at 720, 127 S.E.2d at 542. The Opinion hyper focuses
on one isolated part of a sentence of a detached
portion and ignores the rest of the instrument, which
is prohibited by Weyerhaeuser. Id. In the Opinion,
the context of the Flood Easement was analyzed
without due regard for the context of the remaining
portions of the Flood Easement or the intentions of
the Kisers at the time water was about to pool onto
their land before signing the Flood Easement.
This Opinion also misapprehends the sentence
structure of the “necessary or desirable” language
and also how those words are used in another portion
of the Flood Easement: “ . . . in connection with, as a
part of, or incident to the construction, operation,
maintenance, repair, altering, or replacing of a dam and
hydroelectric power plant.” Duke Energy Carolinas,
LLC v. Kiser, 384 N.C. 275, 886 S.E.2d 99, 101 (N.C.
2023). Placing this language right at the very end of the
Flowage Easement shows that the intent of the parties
was to give Duke the right to clear and keep clear in
connection with the maintenance and operation of the
dam. “ . . . [I]n any way deemed necessary or desirable”
is a modifier of the words “[T]o grade and to treat . . . ”
and must be read conjunctively and in context with
the rest of the sentence and instrument as Justice
Barringer pointed out during oral argument at the
North Carolina Supreme Court. See Weyerhaeuser at
719, 127 S.E.2d at 541.
In Michael, the plaintiff granted defendants an
exclusive easement to use a roadway. Michael at 434.
The Michael defendants contended that an “exclusive”
 23

easement empowered it to exclude the underlying fee

holder from the easement. Michael at 434. The Michael
court held that an easement holder can neither
exclude the underlying fee holder nor increase its use
of the easement outside of its terms. Id. The Opinion
does the exact opposite and destroys the underlying
fee.
The meaning of “flowage” in the Easement is far
more limited than Duke contends. Flowage simply
means to flood over. The dictionary defines “flowage”
as “an overflowing onto adjacent land”, “a body of
water formed by overflowing or damming” and
“floodwater especially of a stream.” Under this long-
held understanding of the word, Duke has the right
under the Easement to flood the Kiser Lake Property
up to 770 feet above sea level in any manner it deems
necessary or desirable in connection with its right to
profit from hydroelectric power.
The plain language of the Easement is very
specific in only allowing Duke to “treat said land up to
said 770 at elevation in any manner deemed necessary
or desirable by the Power Company in connection
with the construction, reconstruction, maintenance
and operation of the dam and power plant” (emphasis
added). The Flood Easement’s clear purpose is to
facilitate Duke’s generation of power, it is not a fee
simple conveyance allowing Duke unlimited rights in
the Kiser Lake Parcel.
IV. NO ADEQUATE OR INDEPENDENT STATE
GROUNDS EXIST TO JUSTIFY THE CONSTITU-
TIONAL VIOLATIONS IN THIS CASE.

In addition to the declaratory claims brought by

the parties, Duke and the Third Parties also claimed
 24

public trust rights and adverse possession of the

various portions of the Kiser Lake Parcel. The North
Carolina Supreme Court did not address these claims;
however they are briefly discussed herein out of
caution to show that there are no adequate or inde-
pendent state law grounds to justify the broad and
excessive transfer of property without compensation.

A. For Purposes of the Public Trust

Doctrine, Under North Carolina Law the
Navigability Analysis for Artificial Water-
courses Focuses on the State of the
Stream Before Impoundment.
In Gwathmey v. State Through Dep’t of Env’t,
Health, & Nat. Res. Through Cobey, 342 N.C. 287,
300, 464 S.E.2d 674, 682 (1995) the North Carolina
Supreme Court reviewed a land dispute with the State
of North Carolina as a party regarding the estuarine
marshlands on the North Carolina coast and held
that if the marshland in its natural condition can be
navigated by watercraft, it is navigable in fact and,
therefore, navigable in law. The navigability of a water-
course is largely a question of fact for a jury. State v.
Baum, 128 N.C. 600, 38 S.E.2d. 900, 901 (1901).
Historically, riparian rights attached only to natu-
ral (i.e., “by nature”) as opposed to artificial water-
courses. Dunlap v. CP&L, 212 N.C. 814, 195 S.E. 43,
45-46 (1938) (riparian owner had right to use a stream
“as it comes upon his land in its natural state” and to
use water flowing by his premises “in a natural
stream”); Coastal Plains Utilities, Inc. v. New Hanover
County, 166 N.C. App. 333, 601 S.E.2d 915 (2004)
(“[A] riparian proprietor is entitled to the natural flow
 25

of a stream running through or along his land in its

accustomed channel”).
The first step in the establishment of riparian
rights is to “show that [one] is a riparian proprietor
or that in some way [one] has acquired riparian rights
in the [waterbody].” Coastal Plains, supra, at 351,
601 S.E.2d at 927; Young v. City of Asheville, 241 N.C.
618, 622, 86 S.E.2d 408, 411-12 (1955) (a party claiming
riparian rights must show “natural” riparian rights
by contact with a natural stream or rights acquired
by grant or prescription).
The North Carolina Supreme Court in Gwathmey
stated “the public ha[s] the right to [ ] unobstructed
navigation as a public highway for all purposes of
pleasure or profit, of all watercourses, whether tidal
or inland, that are in their natural condition capable
of such use.” Gwathmey, 342 N.C. at 300, 464 S.E.2d
at 682 (quoting and relying on State v. Baum, 128
N.C. 600, 38 S.E. 900, 901 (1901) (emphasis added)).
The Gwathmey decision was important in that it
reiterated and upheld the navigable in fact test for
North Carolina. However, the issues before the North
Carolina Supreme Court in Gwathmey are inapposite
for many reasons which could be why the North
Carolina Supreme Court did not address the public
trust doctrine. Gwathmey involved a coastal land
dispute dealing with specific Coastal Statutes, whereas
the current case is concerned with an artificially
created body of water on a non-navigable stream.
Gwathmey at 291. The waterway at issue was near
the beach and was already considered a navigable
waterway. Id. at 307. The State of North Carolina
was a party to the action and the waterway was not
 26

an artificially created body of water deep inland. Id.

at 300-01, 310-11.
In State v. Baum the North Carolina Supreme
Court analyzed a stream in its natural condition
under a criminal statute where the defendant put up
a gate blocking access to a watercourse. The analysis
in Baum focused on the natural condition of the
watercourse. Baum at 60, 38 S.E.2d at 901. Further,
Baum required some element of obstruction of a
public highway as it stated “[a]nd yet it would seem
that there must be some element of a public highway,
and that its navigation must be in some degree
required by the necessity or convenience of the public.”
State v. Baum, 128 N.C. 600, 38 S.E. 900, 901 (1901).
Here, the Kiser Lake Parcel does not cut off the
public from navigating Lake Norman and it involves
an analysis of an artificially created reservoir.
Duke and the third-parties relied heavily on
Fish House, Inc. v. Clarke, 204 N.C.App. 130 (2010)
in the appellate division. However, Fish House is dis-
tinguishable on several fronts as (1) it involves an
artificial canal attached to a large navigable waterway
near the ocean and not an artificial reservoir hours
from the beach; (2) the body of water was coastal and
already labeled as a navigable waterway; (3) it dealt
with obstruction of a narrow canal; (4) it analyzed
commercial use of the canal in the navigability
analysis; and (5) it only applied to boating trespass
and not permanent structures. See generally Fish
House.
The most analogous case to the Opinion is
Bauman v. Woodlake Partners, LLC, 199 N.C.App.
441, 681 S.E.2d 819 (N.C. Ct. App 2009). In Bauman
the issue before the lower court was whether Black
 27

Creek was navigable in fact before Black’s Pond was

created. Bauman at 454. The Bauman Court reviewed
navigability under a declaratory action involving an
artificial body of water and found that the waters
were not navigable based on the condition of Black
Creek before Black’s Pond was created. Id. The pre-
impoundment analysis is essential because holding
otherwise could subject every private reservoir or body
of water in the entire State to public trust rights.
For its part, neither Duke nor the Third Parties
provided the trial court with any evidence that the
Catawba River was navigable north or south of the
Dam before or after the impoundment of the Lake. In
fact, prior cases have held that the Catawba River in
North Carolina was not navigable. This lack of
evidence was one reason the North Carolina Court of
Appeals remanded the case back for trial consistent
with its decision.
One of the only cases that took a factual look at
the state of the Catawba north of Cowan’s Ford Dam
relating to navigability was Petition of Howser, 227
F.Supp. 81 (1964). In Howser, the court laid out the
futility of claiming navigability of the area in question
by stating “ . . . to contend that the waters of the
Catawba River in North Carolina are navigable is to
state a supposed fact which has little if any merit.”
Id. at 87.
It cannot be disputed that Lake Norman is an
artificial, man-made reservoir created from a non-
navigable watercourse. Lake Norman is not a natural
lake and is bounded on both sides by dams. No evidence
was produced at summary judgment to show that a
navigable waterway existed prior to the impoundment
of the Dam. Since navigability is key to the public trust
 28

defense proffered by Duke to prevent Sunset Key’s

boating/recreational trespass claim, at a minimum,
there is an issue of fact as to the navigability of Lake
Norman before the impoundment of the Dam. Bauman
at 449, 453-54.

B. The Public Trust Analysis Focuses Only

on Whether the Kiser Lake Parcel Can
Be Navigated by the Public at Large and
Has No Application to the Dock Trespass
Claims.
Only the State of North Carolina through the
Attorney General has standing to take property rights
from landowners. Town of Nags Head v. Cherry, Inc.,
219 N.C. App. 66 (2012). If a stream is not navigable
before impoundment, only eminent domain properly
raised can entitle a governmental/quasi-governmental
entity the right to take private property. Fabrikant v.
Currituck County, 174 N.C.App. 30 (2005); Cherry at
74-75; See also Zagaroli at 54.
Under no scenario does the public trust doctrine
operate as a sword under North Carolina law to take
away property rights from the fee-holder. Id. at 72.
Further, it appears that the trial court did not fully
understand the nature of the relief sought in the
Boating Trespass Claims. Sunset Keys was not trying
to prevent travel over the Kiser Lake Parcel. Instead,
Sunset Keys only wants to be compensated at whatever
amount the jury determines is fair for the traffic over
the Kiser Lake Parcel.
As to the property owners next to the Kiser Lake
Parcel, Sunset Keys is only requesting to be compen-
sated fairly for its use. Sunset Keys is not trying to
prevent the Third Parties from recreational boating
 29

use of the Kiser Lake Parcel, only to be compensated for

the Structures and recreational use by individuals/
companies other than the Third Parties that do not
own land next to the Kiser Lake Parcel.

C. The Scope of This Appeal Concerns Only

the Declaratory Judgment Granting Title
to Third-Parties Through Duke’s Author-
ity as a Federal License Holder.
The positions taken in this litigation are fatal to
the Third Parties’ claims and defenses as they rely
entirely upon Duke’s authority to justify their trespass
upon the Kiser Lake Parcel. In fact, the Third Parties
maintain in their claims for adverse possession that
Sunset Keys never had the right to give consent to
others in order to use their own land. Thus, both the
exclusive and hostility requirements cannot be met
for adverse possession. See Keener v. Arnold, 161 N.C.
App. 634, 639, 589 S.E.2d 731 (2003).
The trial court also did not grant title through
an easement by implication. Easements through
implication are extremely fact intensive and are the
province for juries. See Barwick v. Rouse, 245 N.C.
391, 393-394, 95 S.E.2d 869, 871 (1957) (appeal after
jury trial requiring long and continued use of an
easement pre-separation of title). Here the Flood
Easement was conveyed well before any docks were
placed on the Kiser Lake Parcel, thus defeating the
required long and continued use pre-separation. The
trial court did not grant title through adverse posses-
sion, implication or any other method other than
Duke’s purported authority and those issues should not
support any adequate or independent state grounds.
 30

CONCLUSION
This Petition covers a vast swath of case law
from the various positions of the Federal Circuits
to North Carolina State law. In sum, the only three
documents truly necessary to understand the scope
of this Petition are Amendments V and XIV of the
U.S. Constitution and the Trial Court Order which
currently governs this case. A side-by-side comparison
of these documents screams for a constitutional recon-
ciliation, and for recognition of the judicial takings
doctrine.

Respectfully submitted,

Dennis E. Boyle
Counsel of Record
BOYLE & JASARI
1050 Connecticut Ave, NW
Suite 500
Washington, DC 20036
(202) 798-7600
[email protected]

Counsel for Petitioners

September 18, 2023