State Highway Com'n v. Raleigh Farmers Market, Inc.

139 S.E.2d 904 (1965)

263 N.C. 622

STATE HIGHWAY COMMISSION v. RALEIGH FARMERS MARKET, INC., Raleigh Savings & Loan Association and L. N. West and wife, Betsey John H. West.

No. 466.

Supreme Court of North Carolina.

January 29, 1965.

*905 Manning, Fulton & Skinner, and Jack P. Gulley, Raleigh, for defendant appellants.

Atty. Gen. T. W. Bruton, Asst. Atty. Gen. Harrison Lewis, Trial Atty. Henry T. Rosser; Young, Moore & Henderson, Raleigh, by Assoc. Counsel J. Allen Adams, Raleigh, for State Highway Comm.

RODMAN, Justice.

Plaintiff does not challenge, as premature, the appeal from the order purporting to settle the issues. Each party offered evidence to support its position on the question of compensation because of the closing of Race Track Road. In substance, the action of the parties amounted to a waiver of a jury trial; and the order *906 was equivalent to a nonsuit with respect to Farmers prayer for affirmative relief.

Since the question we are asked to answer must ultimately be presented, and is in such form that an answer may be helpful to plaintiff in the performance of its duties in laying out other roads, we do not, sua sponte, question the right to an immediate appeal.

The language used by the court in denying compensation for the termination of Farmers right of access to a highway constituting a boundary of its property, and the argument advanced by plaintiff to support the court's conclusion, evidences, we think, a misapprehension of the scope and effect of recent decisions by this Court.

Repeated decisions by this Court have established the right of a property owner to reasonable access to a public highway which abuts his land. That is a property right which cannot be taken without compensating the owner. Snow v. North Carolina State Highway Commission, 262 N.C. 169, 136 S.E.2d 678; Moses v. State Highway Commission, 261 N.C. 316, 134 S.E.2d 664; Abdalla v. State Highway Commission, 261 N.C. 114, 134 S.E.2d 81; Williams v. North Carolina State Highway Commission, 252 N.C. 772, 114 S.E.2d 782; Hedrick v. Graham, 245 N.C. 249, 96 S.E.2d 129; Sanders v. Town of Smithfield, 221 N.C. 166, 19 S.E.2d 630; Long v. Melton, 218 N.C. 94, 10 S.E.2d 699; Glenn v. Board of Education, 210 N.C. 525, 187 S.E. 781; Crawford v. Town of Marion, 154 N.C. 73, 69 S.E. 763, 35 L.R.A.N.S., 193; White v. Northwestern North Carolina R. R. Co., 113 N.C. 610, 611, 18 S.E. 330, 22 L.R.A. 627.

The property owner's right of access should not be confused with the right of the sovereign, in the interest of public safety, to regulate the flow of traffic and the manner of access. Illustrative of the power of the sovereign, for these purposes, are statutes prescribing the side of the road the traveler must use, G.S. § 20-146; permissible speed, G.S. § 20-141; size of vehicles and equipment they must have, G.S. §§ 20-116, 20-122, 20-124, 20-129; limiting travel on parts of a highway to a particular direction, G.S. § 20-165.1.

While the abutting owner has a right of access, the manner in which that right may be exercised is not unlimited. It must be exercised with due regard to the safety of others who have an equal right to use the highway, G.S. § 20-156(a). To protect others who may be using the highway, the sovereign may restrict the right of entrance to reasonable and proper points. Snow v. North Carolina State Highway Commission, supra; Moses v. State Highway Commission, supra; Abdalla v. State Highway Commission, supra; Barnes v. North Carolina State Highway Commission, 257 N.C. 507, 126 S.E.2d 732.

If the abutting owner is afforded reasonable access, he is not entitled to compensation merely because of circuity of travel to reach a particular destination. Snow v. North Carolina State Highway Commission, supra; Moses v. State Highway Commission, supra; Barnes v. North Carolina State Highway Commission, supra.

The rules enunciated by this Court to measure the rights of property owners, when the Highway Commission acts to promote safe and expeditious travel, accord, we think, with conclusions reached by a substantial majority of the courts in other jurisdictions, concurring opinion of Currie, J., in Nick v. State Highway Commission, 13 Wis.2d 511, 109 N.W.2d 71; Warren v. Iowa State Highway Commission, 250 Iowa 473, 93 N.W.2d 60; Tift County v. Smith, 219 Ga. 68, 131 S.E.2d 527; Petition of Burnquist, 220 Minn. 48, 19 N.W.2d 394; Nichols v. Commonwealth, 331 Mass. 581, 121 N.E.2d 56; In re Appropriation of Easement for Highway Purposes, 93 Ohio App. 179, 112 N.E.2d 411.

Plaintiff contends it should not be required to pay for the denial of access to *907 Race Track Road, since the only purpose of that road was to furnish Farmers and other abutting owners access to U.S. 1-A, an access presently existing. To support this contention plaintiff cites Smith v. Gagliardi, 2 Misc.2d 1005, 148 N.Y.S.2d 758, where it is said: "The rule, to which the courts of this state are committed, is that, where private property has means of access by way of two public streets or highways, the state or local authorities, having jurisdiction, may close or do away with one of them without compensation to the landowner provided the other furnishes him with suitable means of access to his property."

The rule as there stated may, because of the requirement of suitable access, produce the same result as the rule stated in Snow v. North Carolina State Highway Commission, supra. Here, it is, we think, apparent that Farmers access to U.S. 1-A has been substantially diminished. True, the southern portion of the tract has the same access as it had prior to the construction of the Belt Line; but that is not true as to the northern portion.

Farmers was, prior to the construction of the Belt Line, obligated to build a spur track from the Seaboard Air Line Railroad to the property east of U.S. 1-A, and north of Farmers property fronting on that road. This spur, for practical purposes, divides the 79 acre tract into two parcels, one south, the other north of the spur. The southern portion, which fronts on U.S. 1-A, has not been affected by the construction of the Belt Line, but the northern portion, which formerly had access to U.S. 1-A by means of the Race Track Road, can now reach U.S. 1-A only by the construction of a road 3000 feet or more in length. The construction of such a road, by reason of the terrain, will be very expensive. The closing of the Race Track Road has substantially reduced the access heretofore enjoyed by Farmers. Farmers is entitled to compensation for the property rights taken.

The Legislature, recognizing the constitutional right of a property owner to compensation when his right of access has been taken, said: "When an existing street or highway shall be designated as and included within a controlled-access facility the owners of land abutting such existing street or highway shall be entitled to compensation for the taking of or injury to their easements of access." G.S. § 136-89.53.

Reversed.