Midgett v. North Carolina State Highway Commission

The grounds for demurrer asserted by defendant are in substance: (1) The facts alleged do not constitute a taking of private property for public use in the constitutional sense and do not amount to a legally cognizable injury to property, but present an occurrence of incidental or consequential damage from flood waters against which, under the “common-enemy doctrine,” a land owner may protect himself by constructing walls, dams, barriers or other structures without exposing himself to liability for resulting injury to a neighboring landowner; and (2) if there was a taking, an action in…