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PRESENT:    All the Justices
ROBERT KITCHEN, ET AL.
                                                                      OPINION BY
v. Record No.  070322                                                 JUSTICE G. STEVEN AGEE
                                                                      February  29,  2008
CITY OF NEWPORT NEWS
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Von L. Piersall, Judge
Robert Kitchen1  appeals from the judgment of the Circuit
Court of the City of Newport News which sustained the demurrer
of the City of Newport News  (the City) to Kitchen’s first
amended motion for judgment  (motion for judgment), which pled a
claim for inverse condemnation.2    The circuit court ruled that
the motion for judgment  “fails to state facts upon which the
relief demanded can be granted,” but also made  “additional
1 Kitchen filed the motion for judgment along with
approximately  700 other parties.    All parties except Kitchen
were dismissed by the circuit court’s final order  “because they
do not share a common interest in the recovery of a single
judgment” and  “are too diverse to participate in a single trial
or to join or consolidate under  [Code  §  8.01-267.1].”    Kitchen
does not assign error to that ruling, and we do not consider it.
Rule  5:17(c); Rule  5:27.    All the parties plaintiff are before
this Court with respect to the issues in this appeal, and our
reference to  “Kitchen” includes all the parties plaintiff for
that purpose.
2 Kitchen filed his original motion for judgment in the
circuit court on April  25,  2000, and took a voluntary nonsuit in
August  2001.    Kitchen then filed a class action suit in the
United States District Court for the Eastern District of
Virginia, but that court dismissed the case without prejudice on
a consent order.    Kitchen then filed another motion for judgment
in the circuit court on June  21,  2002.    The court entered an
agreed order on January  23,  2004, which permitted the filing of
a first amended motion for judgment, which is the pleading that
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rulings in the event of an appeal.”  3    For the reasons set forth
below, we will reverse the judgment of the circuit court.
I.    Factual Background and Material Proceedings Below
On January  30,  2004, Kitchen filed the motion for judgment
alleging the following as facts.    On September  15-16,  1999, the
City received heavy rains during Hurricane Floyd, resulting in
flooding of the Brookside Subdivision, the Woodbridge Crossing
Subdivision, and the Heatherwood Subdivision  (collectively the
“Subdivisions”) within the City.    In addition to the  1999
flooding from Hurricane Floyd, Kitchen alleged the Subdivisions
“had been subjected to a series of frequent and regularly
recurring flooding, inundations, and/or overflows of water  .  .  .
as a direct result of prior governmental action.”    Kitchen also
averred that the City  “caused such frequent and regularly
recurring flooding of and overflow onto  [the Subdivisions];
culminated in the catastrophic flooding on September  15-16,
1999; and  [has] continued to cause regularly recurring flooding
of and overflows in and about the aforesaid lands and premises
is subject of this appeal and is referenced herein as the
“motion for judgment.”
3 Counts I-III of the motion for judgment are pertinent to
this appeal.    Counts IV-VII alleged various theories of
negligence, but these counts were all dismissed by the circuit
court in the final order, and Kitchen does not assign error to
that ruling.    Rule  5:17(c); Rule  5:27.    We therefore only
consider the assignments of error as to Counts I, II and III.
2




on occasions since and after September  15-16,  1999.”  (Emphasis
in original.)
Kitchen further alleged that the sloping topography and
elevation above the Subdivisions caused water to converge into a
creek identified as Jones Run.    This watercourse runs through
and adjacent to the Subdivisions and carries watershed runoff
flowing through them.    Jones Run is connected to Jones Pond, a
body of water in the vicinity of and downstream from the
Subdivisions, via a  60-inch pipe.    Water from Jones Pond
ultimately flows into the Warwick River.    Kitchen contended that
the City knew that Jones Run was the  “sole conduit” for
conveying storm water to Jones Pond and that the existing  60-
inch pipe was  “wholly undersized to adequately and sufficiently
drain the watershed which empties into and through  [the
Subdivisions] under normal and ordinary conditions and
circumstances.”
Kitchen alleged the  “City-permitted development” of land
above the Subdivisions  “substantially, dramatically, and
critically increased the amount of water flowing down from the
watershed through Jones Run behind  [the Subdivisions] and into
the Jones Pond  60-inch pipe conveyance system.”    Continuing,
Kitchen also alleged that  “the City intentionally and/or with
reckless disregard for and with deliberate indifference to, the
rights of the citizens, including Plaintiffs, ignored their
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protests and developed the land upstream from  [the
Subdivisions], without an adequate drainage system.”    Kitchen
further pled that the City had actual notice that when it
permitted development of the land above the Subdivisions, that
development would cause an increase in the down-stream flow of
water through Jones Run and ultimately into the Subdivisions.
The motion for judgment stated that during the two days of
rain from Hurricane Floyd on September  15-16,  1999, the
Subdivisions  “received, sustained, and were otherwise subject to
substantial and inundating flooding, which flooding was far more
profound and egregious than any other flooding caused by
Hurricane Floyd in the City and in similarly situated
[s]ub[d]ivisions.”    Kitchen alleged the  “catastrophic
overflowing and flooding of Jones Run” was the cause of
“extensive, substantial, and devastating damage to and loss of
.  .  . lawfully owned real and personal property.”
In Count I of the motion for judgment, Kitchen contended
that the City’s actions that resulted in the flooding effected a
taking of private property without just compensation in
violation of the Fifth Amendment of the United States
Constitution, and sought damages under  42 U.S.C.  §  1983.    In
Count II, Kitchen alleged a taking of property by the City
without just compensation and sought  “monetary compensation from
the City under Article I,  §  11  [of the Virginia Constitution]
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‘upon an implied contract’ that the City will pay Plaintiffs
‘such amount as would have been awarded if the property had been
condemned under the eminent domain statute.’  ”  (quoting from
Burns v. Board of Supervisors,  218 Va.  625,  627,  238 S.E.2d  823,
825  (1977)).    In Count III, Kitchen sought a declaratory
judgment and requested damages for the alleged taking pursuant
to Code  §  8.01-187.    Kitchen sought  $20,000,000 in compensatory
damages, including pre-judgment and post-judgment interest.
The City responded by demurrer contending that the motion
for judgment  “fails to state a claim upon which relief can be
granted.”    The City argued Count I should be dismissed because
the federal takings claim was not ripe for consideration and
because Kitchen failed to allege the deprivation of a federal
right which was the result of a policy of the City.    The City
averred that Counts II and III should be dismissed because  “an
act of negligence committed by a government official may not
form the basis for an action of inverse condemnation under state
law.”    The City also argued Counts II and III should be
dismissed because the alleged injuries for inverse condemnation
“did not occur during the construction or operation of a public
improvement” and that the exclusive remedy for inverse
condemnation under state law is the procedure under Code  §  8.01-
187.
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The circuit court considered the demurrer and other motions
at a hearing on December  29,  2005, but did not rule at that
time.    Apparently another hearing was held on April  25,  2006, in
which the court announced its ruling from the bench sustaining
the demurrer and Kitchen moved for leave to amend his motion for
judgment.4    The circuit court later denied that motion in its
final order  “in light of the length of time this matter has been
pending and the number of opportunities already afforded to the
Plaintiffs to plead and re-plead their claims.”
On November  7,  2006, the court entered the final order in
which the City’s demurrer was sustained and the motion for
judgment was dismissed with prejudice.    The final order stated
with respect to Counts I, II and III:
[A]s a matter of law, a single occurrence of temporary
flooding fails to state a cause of action, and  .  .  .
while the First Amended Motion for Judgment contains
allegations of regularly recurring flooding, it fails
to allege how frequently such flooding occurred;
whether such flooding occurred in the same place and
to the same extent as the flooding that occurred in
September,  1999; whether all or only some of the same
parcels of real estate were affected by the alleged
previous flooding as were affected by the flooding
that occurred in September,  1999; or whether the
flooding which allegedly previously occurred was
caused by the same mechanism as allegedly caused the
flooding that occurred in September,  1999.
4 A transcript of the April  25,  2006 hearing is not
contained in the appellate record.    Kitchen’s brief on appeal
asserts that  “no court reporter was present” at that hearing.
The court’s final order of November  7,  2006 is the only
indication in the appellate record that a hearing was conducted
on April  25,  2006.
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Accordingly, the Court further FINDS that the First
Amended Motion for Judgment fails to state facts upon
which the relief demanded can be granted.
The circuit court then made  “additional rulings in the event of
an appeal to and review by the Virginia Supreme Court.”    First,
the court held with respect to Count I, that  “a claim under the
Fifth Amendment  .  .  . is not ripe for consideration.”5    Second,
the court ruled with respect to Count II, that  “a claim for
inverse condemnation  .  .  . under Article I, Section  11, of the
Virginia Constitution  .  .  . fails to state a cause of action
because  [Code  §  8.01-187] constitutes an inverse condemnation
claimant’s exclusive remedy against a municipal corporation.”
We awarded Kitchen this appeal.
II.    Standard of Review
We have often stated the standard of review for a circuit
court’s judgment sustaining a demurrer:
Because appellate review of the sustaining of a
demurrer involves a matter of law, we review the trial
5 At the hearing on December  29,  2005, counsel for Kitchen
explained to the circuit court that the federal claims were
originally filed in state court, nonsuited, and then refiled in
federal court.    Kitchen also explained that when he anticipated
that the federal court would require the state takings claims to
be adjudicated first, he  “withdrew the suit from federal court
and brought it back” to state court, including the federal Fifth
Amendment claim.    Kitchen, concerned about potential issues with
the federal statute of limitations in his state court action,
advised the circuit court,  “I think the Court can rule that it’s
not ripe without dismissing it.”    Kitchen also asked the circuit
court to  “fashion a remedy that does not dismiss it but that
keeps the claim in abeyance  .  .  . pending the outcome of the
state law claims.”
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court’s judgment de novo. In doing so, we are required
to address the same issue that the trial court
addressed, namely whether the  .  .  . motion for
judgment alleged sufficient facts to constitute a
foundation in law for the judgment sought, and not
merely conclusions of law.    To survive a challenge by
demurrer, a pleading must be made with sufficient
definiteness to enable the court to find the existence
of a legal basis for its judgment.    In other words,
despite the liberality of presentation which the court
will indulge, the motion must state a cause of action.
Hubbard v. Dresser, Inc.,  271 Va.  117,  122-23,  624 S.E.2d  1,  4
(2006)(internal quotation marks and citations omitted).    We have
also explained:
A demurrer tests the legal sufficiency of a pleading
and can be sustained if the pleading, considered in
the light most favorable to the plaintiff, fails to
state a valid cause of action.    We consider as
admitted the facts expressly alleged and those which
fairly can be viewed as impliedly alleged or
reasonably inferred from the facts alleged.
Welding, Inc. v. Bland County Serv. Auth.,  261 Va.  218,  226,  541
S.E.2d  909,  914  (2001)  (citation omitted).    We apply these
standards to our review of the circuit court’s final order in
the case at bar.
III.    ANALYSIS
On appeal, Kitchen makes four assignments of error. First,
he argues the circuit court erred in sustaining the demurrer
because Counts I, II and III of the motion for judgment did
state a cause of action for inverse condemnation.    Separately,
Kitchen contends the circuit court erred in reaching the merits
8




of his Fifth Amendment claim under Count I because of its
separate holding that the claim was not ripe.
Kitchen’s third assignment of error is that the circuit
court erred in determining Code  §  8.01-187 precludes the
Virginia constitutional claim he makes under Count II of the
motion for judgment.    Lastly, Kitchen contends the circuit court
erred in denying leave to amend the motion for judgment.
A. Cause of Action for Inverse Condemnation
We have described the nature of an inverse condemnation
claim as follows:
[A]n inverse condemnation action is a specific type of
proceeding based on a constitutionally created right
connected to the  “taking” or  “damaging” of property by
the government.    To take or damage property in the
constitutional sense does not require that the sovereign
actually invade or disturb the property.    Taking or
damaging property in the constitutional sense means that
the governmental action adversely affects the
landowner’s ability to exercise a right connected to the
property. Prince William County v. Omni Homes,  253 Va.
59,  72,  481 S.E.2d  460,  467  (1997); City of Lynchburg v.
Peters,  156 Va.  40,  48-49,  157 S.E.  769,  772  (1931);
Lambert v. City of Norfolk,  108 Va.  259,  265,  61 S.E.
776,  778  (1908). Thus, an action for inverse
condemnation is an action seeking redress for the
government’s action in limiting property rights the
landowner holds.    In that regard, the act giving rise to
the  [claim] is not an act aimed at the property, but
rather an act that limits the landowner’s ability to
exercise his property rights without paying the
landowner for that limitation.
Richmeade, L.P. v. City of Richmond,  267 Va.  598,  602-03,  594
S.E.2d  606,  609  (2004); see also Burns v. Board of Supervisors,
218 Va.  625,  627,  238 S.E.2d  823,  825  (1977).
9




Kitchen avers that the circuit court erred in holding, as a
matter of law, that a single occurrence of temporary flooding
cannot support a cause of action for inverse condemnation.
However, even if it were assumed that the circuit court was
correct, Kitchen contends that the motion for judgment contained
more than sufficient allegations of  “regularly recurring
flooding” to have survived demurrer even on that point.    Kitchen
contends that Counts I, II and III sufficiently state a cause of
action for inverse condemnation because  “sixty-eight  (68)
separate paragraphs of allegations  .  .  . covering some nineteen
(19) pages of text” in the motion for judgment are  “far more
particularized and specific than the threshold pleading
requirements for a sufficient complaint in Virginia”  (citing
Burns,  218 Va. at  629,  238 S.E.2d at  826; and Bell Atlantic-
Virginia, Inc. v. Arlington County,  254 Va.  60,  486 S.E.2d  297
(1997)).    Kitchen argues that the circuit court, by requiring
specific allegations of when, how, and to what extent the
flooding occurred, imposed an  “exceptionally heightened and
highly specific burden of pleading.”
In response, the City contends  “it is clear that the First
Amended Motion for Judgment failed to state a claim
notwithstanding its conclusory allegation that flooding of some
unspecified magnitude occurred in the vicinity of the three
[S]ubdivisions on a regular basis.”    The City asserts that
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Kitchen was required to allege either permanent flooding or
regularly recurring flooding on the property to state a legally
cognizable claim.    The City further argues that Kitchen’s motion
for judgment  “does not involve a locality’s failure to accept
responsibility or to maintain drainage” and is based on damages
from  “an act of God.”    The City contends no liability can be
imposed in that circumstance.6    We agree with Kitchen.
To survive a demurrer, Kitchen was required to plead
“sufficient facts to constitute a foundation in law for the
judgment sought, and not merely conclusions of law,” Hubbard,
271 Va. at  122,  624 S.E.2d at  4, which alleged  “government[]
action in limiting property rights the landowner holds.”
Richmeade,  267 Va. at  603,  594 S.E.2d at  609.    Counts I, II and
III of the motion for judgment plainly allege such facts
sufficiently to survive the City’s demurrer.
In his motion for judgment, Kitchen alleged  “the City’s
actions and conduct  .  .  . created and caused” the Subdivisions
to be  “the contingent retention or detention pond areas for
6 The City also argues that a claim for inverse condemnation
may not be grounded on government action that amounts to
negligence by its employees because an action under  42 U.S.C.
§  1983 may not be based on principles of respondeat superior.
The City further contends that as a matter of law,  “inverse
condemnation will not lie unless some positive, official
government action causes the damage in question.”    The final
order referenced neither of these grounds in sustaining the
demurrer, and the City did not assign cross error to the circuit
11




water overflowing from the Jones Run and Jones Pond areas.”    In
particular, Kitchen pled in paragraph  9 of the motion for
judgment that  “as a direct result of prior governmental action”
the Subdivisions  “had been subjected to a series of frequent and
regularly recurring flooding, inundations and/or overflows of
water from the Jones Run watercourse.”    Continuing, paragraph  10
pled that
earlier actions of the Defendant City of Newport News
caused such frequent and regularly recurring flooding
of and overflow  .  .  . culminated in the catastrophic
flooding on September  15-16,  1999; and have continued
to cause regularly recurring flooding of and overflows
in and about the aforesaid lands and premises on
occasions since and after September  15-16,  1999.
(Emphasis in original.)    As a consequence of these actions,
Kitchen pled  “the City did effect a taking of Plaintiffs’
private real and personal property for public use.”  (Emphasis in
original.)    By this taking the  “City did permanently deprive
plaintiffs of their property.”
The circuit court’s conclusion  “that, as a matter of law, a
single occurrence of temporary flooding fails to state a cause
of action” for inverse condemnation is not before us in this
appeal.    That conclusion is not relevant to the sustaining of
the demurrer because the circuit court recognized the motion for
judgment  “contains allegations of regularly recurring flooding.”
court’s failure to rule on its claims.    Therefore, we do not
consider either of these claims.    Rule  5:18; Rule  5:27.
12




Coupled with Kitchen’s other allegations, as noted above, the
circuit court’s analysis should have ended there and resulted in
the overruling of the City’s demurrer.    The circuit court’s
stated reasons for sustaining the demurrer, because the motion
for judgment failed to plead flooding  “in the same place and to
the same extent as the flooding that occurred in September,
1999” and  “whether all or only some of the same parcels of real
estate were affected” are not relevant to whether the inverse
condemnation cause of action was pled.    While those items may be
items of evidentiary proof at trial, none was necessary for
purposes of the cause of action being sufficient to survive
demurrer.7    Richmeade,  267 Va. at  602-03,  594 S.E.2d at  609;
Burns,  218 Va. at  627,  238 S.E.2d at  825; Bell Atlantic-
Virginia,  254 Va. at  61-63,  486 S.E.2d at  298-99.
As the foregoing illustrates, Kitchen did not plead
conclusions of law, but alleged specific, factual actions of the
City which resulted in a taking of property.    Such pleading
meets the requirements for stating a cause of action for inverse
condemnation as we recognized in Richmeade.                            267 Va. at  602-03,
594 S.E.2d at  609; See also Burns,  218 Va. at  627,  238 S.E.2d at
825; Bell Atlantic-Virginia,  254 Va. at  61-63,  486 S.E.2d at
7 As stated in Bell Atlantic-Virginia,  “[w]e express no
opinion, however, whether such a claim will be viable after the
facts are fully developed by the evidence.”                            254 Va. at  63 n.3,
486 S.E.2d at  299 n.3.
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298-99.    Therefore, the circuit court’s judgment concluding that
Counts I, II and III  “fail[] to state facts upon which the
relief demanded can be granted” and sustaining the demurrer was
error.
B. Ripeness
In his second assignment of error, Kitchen argues the
circuit court  “erred in reaching the merits of the legal
sufficiency” of Count I  (the Fifth Amendment Claim) because the
court ruled that Count I  “is not ripe for consideration.”
Kitchen argues  “[i]t is manifest that Count I cannot be both
ripe for consideration and thus demurrable on its merits, and at
the same time, in the same Order, not ripe for consideration.”
(Emphasis in original.)    He contends that if Count I was not
ripe for adjudication, the circuit court  “should have held Count
One in abeyance for further consideration only after the
dismissal of Counts Two and Three.”
The City responds that the circuit court correctly
dismissed Count I as not ripe because the  “United States Supreme
Court has made it clear that litigation of a Fifth Amendment
claim is premature unless there has been an adverse final
judgment in a state law inverse condemnation proceeding.”
Citing Williamson County Reg’l Planning Comm’n v. Hamilton Bank,
473 U.S.  172  (1985), the City contends  “a Virginia plaintiff
14




must seek a remedy under state law without success before a
court may consider his claim under federal law.”    We disagree.
Although the circuit court’s final order seems to provide
contradictory rulings as to Count I in that it is not ripe for
consideration but nonetheless on the merits fails to state a
claim as a matter of law, the inconsistencies are of no moment
in resolving this appeal.    As stated above, sustaining the
demurrer as to Count I for failure to plead a cause of action
was error.    In addition, the circuit court’s alternative ruling
on ripeness was error.
In Williamson County, the United States Supreme Court held:
The Fifth Amendment does not proscribe the taking of
property; it proscribes taking without just
compensation.    Nor does the Fifth Amendment require
that just compensation be paid in advance of, or
contemporaneously with, the taking; all that is
required is that a  “‘reasonable, certain and adequate
provision for obtaining compensation’” exist at the
time of the taking. If the government has provided an
adequate process for obtaining compensation, and if
resort to that process  “[yields] just compensation,”
then the property owner  “has no claim against the
Government” for a taking.    Thus, we have held that
taking claims against the Federal Government are
premature until the property owner has availed itself
of the process provided by the Tucker Act,  28 U.S.C.
§  1491. Similarly, if a State provides an adequate
procedure for seeking just compensation, the property
owner cannot claim a violation of the Just
Compensation Clause until it has used the procedure
and been denied just compensation.
473 U.S. at  195  (1985)  (citations omitted).    The Supreme Court
further noted that  “because the Fifth Amendment proscribes
15




takings without just compensation, no constitutional violation
occurs until just compensation has been denied. The nature of
the constitutional right therefore requires that a property
owner utilize procedures for obtaining compensation before
bringing a  §  1983 action.”                                             473 U.S. at  194, n.13.
In the two decades following Williamson County, some
confusion developed as to whether that decision pronounced a
state law exhaustion of remedies requirement before a plaintiff
could bring a federal takings claim.8    In San Remo Hotel, L.P. v.
City & County of San Francisco,  545 U.S.  323  (2005), the Supreme
Court specifically rejected the  “contention that Williamson
County forbids plaintiffs from advancing their federal claims in
state courts.”                                                           545 U.S. at  346.
The requirement that aggrieved property owners must
seek  “compensation through the procedures the State
has provided for doing so,” does not preclude state
courts from hearing simultaneously a plaintiff’s
request for compensation under state law and the claim
that, in the alternative, the denial of compensation
would violate the Fifth Amendment of the Federal
Constitution. Reading Williamson County to preclude
8 See e.g., J. David Breemer, Overcoming Williamson County’s
Troubling State Procedures Rule: How the England Reservation,
Issue Preclusion Exceptions, and the Inadequacy Exception Open
the Federal Courthouse Door to Ripe Takings Claims,  18 J. Land
Use & Envtl. Law  209,  265 n.  183  (Spring  2003)  (“when a would-be
federal court litigant ventures to state court to exhaust any
potential avenues of obtaining compensation, in order to
establish that a taking  ‘without just compensation’ has actually
occurred as required by Williamson County, he finds himself
forced to raise the federal law takings claim even though he
would prefer to reserve the federal claim for resolution in a
section  1983 suit brought in federal court”).
16




plaintiffs from raising such claims in the alternative
would erroneously interpret our cases as requiring
property owners to  ‘resort to piecemeal litigation or
otherwise unfair procedures.’
545 U.S. at  346  (citations omitted).    The concurring opinion in
San Remo Hotel noted:
Indeed, in some States the courts themselves apply the
state-litigation requirement from Williamson County,
refusing to entertain any federal takings claim until
the claimant receives a final denial of compensation
through all the available state procedures.    This
precludes litigants from asserting their federal
takings claim even in state court.  .  .                              . Williamson
County does not command that the state courts
themselves impose the state-litigation requirement.
Id. at  351 n.2.  (Rehnquist, C.J., with whom O’Connor, Kennedy,
and Thomas JJ., join, concurring)  (citations and emphasis
omitted).
Based on San Remo Hotel, we are persuaded that contrary to
the City’s contentions, Kitchen was not required to seek a
remedy under state law  (Counts II and III) without success
before the circuit court could consider his Fifth Amendment
claim  (Count I).    Further, there is no Virginia rule requiring
that result.    Kitchen was entitled to pursue his Fifth Amendment
claims simultaneously with his state law claims.9    Therefore, the
9 While a court may consider both the federal and state
takings claims together, nothing in this opinion should be
construed to create a requirement that such claims be
adjudicated simultaneously.    Depending on the facts of a
particular case, a court may appropriately exercise discretion
in determining the order or method by which it will hear the
state and federal claims.    As Kitchen suggested in this case,
17




circuit court erred in holding that Count I was not ripe for
consideration.
C. Code  §  8.01-187
Kitchen also assigns error to the circuit court’s dismissal
of his Virginia constitutional claim under Count II.    According
to the circuit court, that Count  “fails to state a cause of
action because Section  8.01-187 of the Code of Virginia
constitutes an inverse condemnation claimant’s exclusive remedy
against a municipal corporation.”    Kitchen argues that Code
§  8.01-187 is not the exclusive remedy for plaintiffs seeking
just compensation after a taking, and that our jurisprudence
supports the independent right to a jury trial for the Virginia
Constitutional claim.
The City responds that the circuit court did not err and
that Code  §  8.01-187 does constitute the exclusive remedy for
inverse condemnation against a municipal government.    Citing
Chaffinch v. Chesapeake & Potomac Tel. Co.,  227 Va.  68,  313
S.E.2d  376  (1984), the City argues that Code  §  8.01-187 became
the sole remedy in lieu of the self-executing provisions of the
the better course could be to try the state claims first while
holding the federal claim for later adjudication.    In other
circumstances, judicial economy and the facts presented may
better warrant a joint trial.    What the circuit court cannot do
is dismiss the federal claim solely because a similar state
claim is pending.
18




Virginia Constitution when that statute was adopted by the
General Assembly.    We disagree.
Article I, Section  11 of the Constitution of Virginia
provides that private property shall not be taken or damaged for
public use without just compensation.    That section  “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.”    Bell Atlantic-Virginia,
254 Va. at  62,  486 S.E.2d at  298; Jenkins v. County of
Shenandoah,  246 Va.  467,  470,  436 S.E.2d  607,  609  (1993); Burns,
218 Va. at  627,  238 S.E.2d at  825.
Code  §  8.01-187 also provides a statutory remedy to
determine compensation for property taken or damaged:
Whenever it is determined in a declaratory
judgment proceeding that a person’s property has been
taken or damaged within the meaning of Article I,
Section  11 of the Constitution of Virginia and
compensation has not been paid or any action taken to
determine the compensation within sixty days following
the entry of such judgment order or decree, the court
which entered the order or decree may, upon motion of
such person after reasonable notice to the adverse
party, enter a further order appointing condemnation
jurors to determine the compensation. The appointment
of condemnation jurors and all proceedings thereafter
shall be governed by the procedure prescribed for the
condemning authority.
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Our holding in Chaffinch is instructive on whether Code
§  8.01-187 is the exclusive remedy for compensation when
property is taken or damaged.    In Chaffinch, a homeowner filed a
motion for judgment, claiming damages against a public service
telephone company for damage to his property.                        227 Va. at  69-70,
313 S.E.2d at  377.    The circuit court granted the telephone
company’s motion to dismiss on the grounds that Code  §  8.01-187
was the exclusive remedy when a plaintiff alleges that his
property has been taken by a condemning authority.                   227 Va. at
70-71,  313 S.E.2d at  378.
On appeal, this Court reversed and stated Code  §  8.01-187
“disturbs no vested rights and creates no new obligation. It
merely supplies another remedy to enforce existing rights.”    Id.
at  71,  313 S.E.2d at  378  (citation and emphasis omitted).
We then considered the history of Code  §  8.01-187 and
explained:
This statute was first added to the Declaratory
Judgments Act soon after our analysis of that Act in
Williams v. Bank of Norfolk,  203 Va.  657,  125 S.E.2d
803  (1962). There, we said:
Declaratory judgments  “are intended to
supplement rather than to supersede ordinary
causes of action and to relieve litigants of
the common law rule that no declaration of
rights may be judicially adjudged until a
right has been violated. Preventive relief
is the moving purpose. Whether or not
jurisdiction shall be taken is within the
sound discretion of the trial court.
Something more than an  ‘actual controversy’
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is necessary. In common cases where a right
has matured or a wrong has been suffered,
customary processes of the court, where they
are ample and adequate, should be adopted.”
Id. at  662,  125 S.E.2d at  806-07  (quoting American
Nat. Bk. v. Kushner,  162 Va.  378,  386,  174 S.E.  777,
780  (1934)). In Morris v. Tunnel District,  [203 Va.
196,  123 S.E.2d  398  (1962)], an inverse condemnation
case decided earlier the same year, we had recognized
a common law right of action.    The General Assembly
was aware of these decisions when it enacted Code
§  8.01-187, and we believe that if it had intended the
statutory proceeding  “to supersede ordinary causes of
action”, it would have said so on the face of the
statute. It did not, and we will not assume that the
omission was an oversight.
Id. at  72,  313 S.E.2d at  378-79.
Had our inquiry ended there, as perhaps it should, the
issue before us would have long ago been resolved.    However, we
left open the issue of whether the Code  §  8.01-187 remedy was
exclusive when a claim was made against the Commonwealth or one
of its political subdivisions entitled to sovereign immunity as
opposed to a private entity with powers of eminent domain:
when an inverse condemnation claim is asserted against
the sovereign or one of its agencies or political
subdivisions, there is some logic in the argument that
the statutory mechanism was intended to be the sole
remedy available.    But the logic fails altogether when
the claim is one asserted against other parties.
Public service companies have never enjoyed immunity
from liability for damaging private property  .  .  .
Id. at  72,  313 S.E.2d at  378  (emphasis added).    We then held
that Code  §  8.01-187 is  “a statutory remedy  [which] does not
preempt common law remedies against a non-sovereign entity
vested with the power of eminent domain unless the statute,
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expressly or by necessary implication, so provides.”    Id. at  72-
73,  313 S.E.2d at  379.
Since our decision in Chaffinch, we have considered two
other cases where a takings claim was made against a political
subdivision of the Commonwealth under Article I, Section  11 of
the Constitution.    See Hampton Rds. Sanitation Dist. v.
McDonnell,  234 Va.  235,  360 S.E.2d  841  (1987) and Jenkins v.
County of Shenandoah,  246 Va.  467,  436 S.E.2d  607  (1993).    The
parties plaintiff in each case prevailed on their right to make
the constitutional claim because, as we stated in Jenkins,
Article I, Section  11  “is self-executing  [and] permits a
landowner to enforce his constitutional right to compensation in
a common law action both  ‘where his property is taken for public
uses and where it is damaged for public uses, irrespective of
whether there be negligence in the taking or the damage.’  ”             246
Va. at  470,  436 S.E.2d at  609  (citation and emphasis omitted).
However, in neither case was the issue of Code  §  8.01-187 as an
exclusive remedy before the Court.    See McDonnell,  234 Va. at
238 n.2,  360 S.E.2d at  843 n.2  (“Code  §  8.01-187  .  .  . now may
provide the exclusive remedy for art. I,  §  11 claims asserted
against the sovereign, its agencies and political subdivisions.
The question, however, is not before us in this appeal”).
The issue is squarely before us in this case, and we hold
Code  §  8.01-187 is not the exclusive remedy for claimants making
22




an inverse condemnation claim against a political subdivision of
the Commonwealth.    As we have said many times before, the
provisions of Article I, Section  11 are  “self-executing.”    See
Jenkins,  246 Va. at  470,  436 S.E.2d at  609; Burns,  218 Va. at
627,  238 S.E.2d at  825; Morris v. Elizabeth River Tunnel Dist.,
203 Va.  196,  198,  123 S.E.2d  398,  400  (1962); Heldt v. Elizabeth
River Tunnel Dist.,  196 Va.  477,  482,  84 S.E.2d  511,  515  (1954).
The enactment of Code  §  8.01-187 does not change that analysis
or evidence an intent on the part of the General Assembly to
limit the right to make the constitutional takings claim.
As we said in Chaffinch, Code  §  8.01-187  “disturbs no
vested rights and creates no new obligation.    It merely supplies
another remedy to enforce existing rights.”                               227 Va. at  71,  313
S.E.2d at  378  (citation and emphasis omitted).    As we also
stated in Chaffinch, the General Assembly was well aware of our
earlier decisions on the constitutional cause of action, and  “if
it had intended the statutory proceeding  ‘to supersede ordinary
causes of action’, it would have said so on the face of the
statute.    It did not, and we will not assume that the omission
was an oversight.”                                                        227 Va. at  72,  313 S.E.2d at  379  (citation
omitted).    To read the statute otherwise would be to add
language to the statute, and we refrain from doing so.    See
Signal Corp. v. Keane Fed. Sys.,  265 Va.  38,  46,  574 S.E.2d  253,
257  (2003).                                                              (“In this Commonwealth, courts are required to
23




apply the plain meaning of statutes, and we are not free to add
language, nor to ignore language, contained in statutes”).    Code
§  8.01-187 is not the exclusive remedy for an inverse
condemnation claim against the Commonwealth or one of its
political subdivisions.    The Article I, Section  11 takings claim
and the statutory takings claim are both claims which may be
pursued.
Accordingly, the circuit court erred when it held Code
§  8.01-187  “constitutes an inverse condemnation claimant’s
exclusive remedy against a municipal corporation.”
III. CONCLUSION
For the foregoing reasons, we will reverse the judgment of
the circuit court and remand for further proceedings consistent
with this opinion.10
Reversed and remanded.
10 Kitchen’s final assignment of error addresses the circuit
court’s denial of his motion for leave to amend the motion for
judgment.    However, having prevailed on all the issues for which
he assigned error to the circuit court’s grant of the demurrer
and the alternative rulings, we need not address the circuit’s
refusal to grant Kitchen’s motion to amend.
24

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