Barnes v. North Carolina State Highway Commission, 536

• Decision Date: 10 July 1962
• Docket Number: No. 536,536
• Citation: 257 N.C. 507,126 S.E.2d 732
• Parties: J. B. BARNES, Petitioner, v. The NORTH CAROLINA STATE HIGHWAY COMMISSION; H. T. Butts; Hugh B. Beal, Trustee; Security National Bank of Greensboro; Standard Oil Company of New Jersey; W. O. McGibony, Trustee; The Federal Land Bank of Columbia; and Lattie D. Matthews, Executrix of the Estate of M. A. Matthews, Deceased, Respondents.
• Court: North Carolina Supreme Court

Page 732

126 S.E.2d 732

257 N.C. 507

J. B. BARNES, Petitioner, v. The NORTH CAROLINA STATE HIGHWAY COMMISSION; H. T. Butts Hugh B. Beal, Trustee; Security National Bank of Greensboro Standard Oil Company of New Jersey; W. O. McGibony, Trustee The Federal Land Bank of Columbia; and Lattie D. Matthews Executrix of the Estate of M. A. Matthews, Deceased, Respondents.

No. 536.

Supreme Court of North Carolina.

July 10, 1962.

T. W. Bruton, Atty. Gen., Harrison Lewis, Asst. Atty. Gen., Millard R. Rich, Jr., Member of Staff, Raleigh, and Bryan & Bryan, Dunn, for respondent State Highway Commission, appellant.

M. O. Lee, Lillington, Wilson & Bain and Wiley F. Bowen, Dunn, Robert B. Morgan, Lillington, for petitioner-appellee.

Robert Morgan, Lillington, for respondents Butts and Matthews, appellees.

BOBBITT, Justice.

As to the measure of damages, the court instructed the jury, inter alia, as follows: "* * * where only a part * * of a tract of land, is appropriated by the State Highway Commission for public purposes, the measure of damages in such proceeding is the difference between the fair market value of the entire tract immediately before the taking and the fair market value of what is left immediately after the taking. The items going to make up this difference embrace compensation for the part taken and compensation for injury to the remaining portion which is to be offset under the terms of the controlling statute by any general or special benefit resulting to the landowner from the utilization of property taken for a highway." This instruction is in accord with our decisions. Proctor v. State Highway and Public Works Commission, 230 N.C. 687, 691, 55 S.E.2d 479; Robinson v. State Highway Commission, 249 N.C. 120, 105 S.E.2d 287, and cases cited.

There is no controversy as to petitioner's right to recover compensation for the part taken, to wit, Tract A (including improvements thereon) and Tract B.

The primary question for decision is whether, in determining the injury, if any, to the remaining portion (17.14 acres) of his land, petitioner is entitled to compensation for diminution in the value thereof caused by the fact he now has direct access therefrom only to the lanes of #401 (as relocated) reserved exclusively for southbound traffic has direct access thereto. The question is drawn sharply into focus by exceptions and assignments of error relating to portions of petitioner's pleading and evidence and to portions of the court's instructions, including the allegations, evidence and instructions set forth in the following three paragraphs.

Petitioner alleged his remaining property, particularly the portions occupied by the Matthews filling station and bulk oil premises and the Frozen Custard Place, was greatly damaged "by the division of the lanes of travel in such a manner that said property can only attract and serve potential customers traveling in a southerly direction along said highway."

Petitioner offered evidence, which, as stated by the court, tended to show "that the sum of $40,000.00 damage to the remainder of his tract which was not taken consisted primarily of diminution in value because of the way in which the highway was constructed, particularly the construction of what has been referred to as a median strip, * * *"

The court instructed the jury that petitioner had offered evidence tending to show that, after the taking on January 1, 1960, #401 (as relocated) "had four lanes divided by an elevated median strip or divider, ten (10) to twelve (12) inches high above the surface of the highway and that traffic bound in only one direction had access to his property; further that the State Highway Commission had constructed elevated islands, 10 to 12 inches high above the surface of the highway, in front of * * * the Matthews property and the Frozen Custard property, so as to control and restrict access of the petitioner and others to the property. That if the petitioner has so satisfied you of this by the greater weight of the evidence then the court instructs you that this is relevant as circumstances tending to show diminution in the overall fair market value of the property as an element of damage to the remainder of that tract of land by reason of the location and construction of the highway." (Our italics)

"The question of what constitutes a taking is often interwoven with the question of whether a particular act is an exercise of the police power of the power of eminent domain. If the act is a proper exercise of the police power, the constitutional provision that private property shall not be taken for public use, unless compensation is made, is not applicable." McQuillin, Municipal Corporations, Third Edition, Volume 11, § 32.27. "The state must compensate for property rights taken by eminent domain; damages resulting form the exercise of the police power are noncompensable." State v. Fox, 53 Wash.2d 216, 332 P.2d 943, 946; Walker v. Sate, 48 Wash.2d 587, 295 P.2d 328, and cases cited.

Petitioner contends the Highway Commission, by the relocation of #401 so that he now has direct access only to the lanes thereof reserved exclusively for southbound traffic, has appropriated a property right for which, under the law of eminent domain, he is entitled to compensation. The Highway Commission contends the relocation of #401 and the separation of the lanes for northbound and southbound traffic by a median is a traffic regulation adopted in the exercise of the police power vested in it by G.S. Chapter 136, Article 2, and injury to petitioner's remaining land caused thereby is not compensable.

Prior to January 1, 1960, the paved portion of #401 was twenty-four feet. Petitioner testified the traffic on the highways then passing his property "was tremendous." Project No. 8.14368, in its entirety and with reference to #401, was designed to promote the safety and convenience of the public by reducing the hazards of travel and expediting the flow of traffic. Petitioner does not allege, nor does he contend, the public safety and convenience were not served thereby.

"An individual proprietor has no right to insist that the entire volume of traffic that would naturally flow over a highway of which he owns the fee pass undiverted and unobstructed. In fact, while under some circumstances and conditions he has a right of access to and from his own premises, he has no constitutional right to have anyone pass by his premises at all." Nichols on Eminent Domain, Third Edition, Volume 2, § 6.445; Board of Com'rs of Santa Fe County v. Slaughter, 49 N.M. 141, 158 P.2d 859; City of Memphis v. Hood, 208 Tenn. 319, 345 S.W.2d 887.

As stated by Kyle, J., in Muse v. Mississippi State Highway Commission, 233 Miss. 694, 103 So.2d 839: "Multiple lane highways have been constructed in all parts of the country; and median strips or neutral zones between lanes of traffic on multiple lane highways, with interchanges or crossovers at reasonable intervals to enable motorists to pass from one traffic lane to another, have been authorized and provided for in the standards of design adopted for the construction of such highways. Such median strips or neutral zones provide for a complete separation of traffic moving in opposite directions, and reduce the hazards incident to motor vehicle travel; and the establishment of such median strips or neutral zones have been recognized as a proper exercise of the police power."

In Walker v. State, supra, the plaintiffs owned property fronting five hundred feet on the south side of a primary four-lane state highway on which they operated a motel. The State Highway Commission installed a concrete center line curb, thereby preventing direct access from the plaintiffs' property to the lanes for westbound traffic. In holding that the plaintiffs were not entitled to injunctive relief or compensation, the court, in opinion by Weaver, J., said:

"Plaintiffs have no property right in the continuation or maintenance of the flow of traffic past their property. They still have free and unhampered ingress and egress to their property. Once on the highway, to which they have free access, they are in the same position and subject to the same police power regulations as every other member of the traveling public. Plaintiffs, and every member of the traveling public subject to traffic regulations, have the same right of free access to the property from the highway. Re-routing and diversion of traffic are police power regulations. Circuity of route, resulting from an exercise of the police power, is an incidental result of a lawful act. It is not the taking or damaging of a property right.

"We have found no authority, nor has any been called to our attention, which allows, to the abutting property owner, damages allegedly arising from statutes or ordinances (a) establishing one-way streets; (b) forbidding 'U' and left turns; or (c) authorizing the use of other suitable traffic-control devices deemed necessary by the property authorities to warn, regulate, and guide traffic upon public thoroughfares.

"Although an abutting property owner may be inconvenienced by one-way traffic regulation immediately in front of his property, he has no remedy if such regulation be reasonably adapted to the benefit of the traveling public. The property owner must point to illegality, fraud, or arbitrary or capricious conduct."

In accord: Department of Public Works and Bldgs. v. Mabee, 22 Ill.2d 202, 174 N.E.2d 801; Iowa State Highway Commission v. Smith, 248 Iowa 869, 82 N.W.2d 755, 73 A.L.R.2d 680; State v. Ensley, 240 Ind. 472, 164 N.E.2d 342; State v. Fox (Wash.), supra; People ex rel. Department of Public Works v. Ayon, 54 Cal.2d 217, 5 Cal.Rptr. 151, 352 P.2d 519, certiorari denied sub nomine Yor-Way Markets v. California, 364 U.S. 827, 81 S.Ct. 65, 5 L.Ed.2d 55; State ex rel. Merritt v. Linzell, 163 Ohio St. 97, 126 N.E.2d 53; In re Appropriation of Easements for Highway and Slope Purposes, 101...