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 

1 
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 

3 
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] 

4 
‘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. 

5 
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. 

6 
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.” 

7 
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 AtlanticVirginia, 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 

10 
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 AtlanticVirginia, 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. 

13 
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 selfexecuting 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. 

19 
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’ 

20 
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, 

21 
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 
24 

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.