Present: All the Justices 

BELL ATLANTIC-VIRGINIA, INC. 

OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR. 

v. Record No. 961830 

 June 6, 1997 

ARLINGTON COUNTY 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Benjamin N.A. Kendrick, Judge 

 In this inverse condemnation proceeding, we decide whether 

the trial court erred in (1) sustaining the defendant's plea in 

bar on the ground of sovereign immunity and (2) sustaining the 

defendant's demurrer on the ground that the plaintiff's second 

amended motion for judgment fails to state a claim for damages 

under Article I, Section 11 of the Constitution of Virginia. 

 Bell Atlantic-Virginia, Inc. (Bell Atlantic) filed a second 

amended motion for judgment against Arlington County (the 

County), seeking a declaratory judgment pursuant to Code § 8.01-

184 and "just compensation due to [the County's] taking or 

damaging of [Bell Atlantic's] property on or about: September 

30, 1992; and June 8, 1994." Count I of the motion for judgment 

relates to the September 30, 1992 incident, and Count II pertains 

to the June 8, 1994 incident. 

 In each count, Bell Atlantic alleges that "the County took 

and/or damaged Bell Atlantic's underground utility facilities for 

public use."1

 In Count I, Bell Atlantic further alleges the 

 

 1The property allegedly taken or damaged on September 30, 

1992, is described as including "the following communications 

lines: (a) 2100 pair cable; and (b) 1800 pair cable." The 

property allegedly taken or damaged on June 8, 1994, is described 

as including "the following lines: (a) 200 pair cable; and (b) 

600 pair cable." 
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following: (1) "the damage or taking occurred so [the County] 

could construct, install or maintain its waterworks system;" (2) 

"[t]he actions of [the County] were unconstitutional in that [the 

County] took or damaged Bell Atlantic's property and applied it 

for public use without just compensation being made, and without 

Bell Atlantic's consent, contrary to Article I, Section 11, of 

the Constitution of the Commonwealth of Virginia;" and (3) "Bell 

Atlantic therefore brings suit upon an implied contract" to 

recover the damages resulting from the taking or damage. Bell 

Atlantic's allegations in Count II are virtually identical to 

those in Count I except that, in Count II, the alleged taking or 

damage occurred in connection with the County's sewage disposal 

system. 

 The County filed a demurrer, asserting, inter alia, that 

"[t]he claims alleged in the Second Amended Motion for Judgment 

are barred by the County's sovereign immunity" and that Bell 

Atlantic failed "to allege sufficient facts to state a cause of 

action for either breach of implied contract or a taking of 

property without just compensation." The County also filed a 

plea in bar, asserting that Bell Atlantic's action is a simple 

tort action and, thus, is barred by sovereign immunity. 

 In its final order entered June 10, 1996, the trial court 

sustained the County's demurrer and plea in bar, concluding that 

"the Second Amended Motion for Judgment does not contain 

allegations sufficient to plead violations of Article I, Section 
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11 of the Virginia Constitution and/or for breach of implied 

contract and that such allegations are barred by the County's 

sovereign immunity." We awarded Bell Atlantic an appeal. 

 Article I, Section 11 of the Constitution of Virginia 

provides that private property shall not be taken or damaged for 

"public uses," as that term is defined by the General Assembly, 

without just compensation. The General Assembly, in Code § 15.1-

276, defines the term "public uses" to "embrace all uses which 

are necessary for public purposes." Code § 15.1-292 empowers a 

County to acquire property by purchase, condemnation, or 

otherwise in order to construct, operate, or maintain its 

waterworks, and Code § 15.1-320 similarly empowers a County 

regarding its sewage disposal system. 

 Article I, Section 11 of the Constitution is self-executing 

and permits a property owner to enforce his constitutional right 

to just compensation in a common law action. We have held that 

such an action is not a tort action; rather, it is a contract 

action and, therefore, is not barred by the doctrine of sovereign 

immunity. Jenkins v. County of Shenandoah, 246 Va. 467, 470, 436 

S.E.2d 607, 609 (1993); Burns v. Board of Supervisors, 218 Va. 

625, 627, 238 S.E.2d 823, 825 (1977). 

 In the present case, the County did not present any evidence 

in support of its plea in bar. Therefore, in deciding both the 

plea in bar and the County's demurrer, we, like the trial court, 

must confine our consideration to the allegations contained in 
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Bell Atlantic's second amended motion for judgment.2

 A demurrer admits as true all material facts well pleaded, 

facts impliedly alleged, and facts that may be fairly inferred 

from those alleged. Palumbo v. Bennett, 242 Va. 248, 249, 409 

S.E.2d 152, 152 (1991); Bowman v. State Bank of Keysville, 229 

Va. 534, 536, 331 S.E.2d 797, 798 (1985). 

 From the allegations contained in the second amended motion 

for judgment, it is clear that Bell Atlantic states a claim for 

just compensation under Article I, Section 11 of the Constitution 

of Virginia.3

 Therefore, the trial court erred in sustaining the 

County's plea in bar and demurrer. 

 Consequently, we will reverse the trial court's judgment and 

remand the case for further proceedings. 

Reversed and remanded. 

 

 2The County contends that, in deciding this case, we should 

consider allegations made by Bell Atlantic in its original motion 

for judgment and amended motion for judgment. We do not agree. 

Demurrers and pleas in bar were sustained as to those pleadings. 

 Thereafter, with leave of court, Bell Atlantic filed its second 

amended motion for judgment. In so doing, it did not incorporate 

or refer to any of the allegations that were set forth in its 

original or amended motions for judgment. The trial court based 

its decision "on [the County's] Demurrer and Special Plea in Bar 

to the Second Amended Motion for Judgment," and we cannot do 

otherwise (emphasis added). See Norfolk & W.R. Co. v. 

Sutherland, 105 Va. 545, 549-50, 54 S.E. 465, 466 (1906). 

 3We express no opinion, however, whether such a claim will 

be viable after the facts are fully developed by the evidence.