Hedrick v. Graham

• Decision Date: 11 January 1957
• Docket Number: No. 377,377
• Citation: 96 S.E.2d 129,245 N.C. 249
• Parties: W. A. HEDRICK v. A. H. GRAHAM, J. Emmett Winslow, H. Maynard Hicks, C. Heide Trask, M. E. Robinson, Donnie A. Sorrell, C. A. Hasty, J. Van Lindley, Forrest Lockey, James A. Gray, Jr., James A. Hardison, W. Raiph Winkler, June F. Scarborough, J. F. Snipes, Harry E. Buchanan.
• Court: North Carolina Supreme Court

Page 129

96 S.E.2d 129

245 N.C. 249

W. A. HEDRICK v. A. H. GRAHAM, J. Emmett Winslow, H. Maynard Hicks, C. Heide Trask, M. E. Robinson, Donnie A. Sorrell, C. A. Hasty, J Van Lindley, Forrest Lockey, James A. Gray, Jr., James A Hardison, W. Raiph Winkler, June F. Scarborough, J. F Snipes, Harry E. Buchanan.

No. 377

Supreme Court of North Carolina.

Jan. 11, 1957

Craige & Craige, Clarence Kluttz, Lewis P. Hamlin, Jr., Salisbury, and Walser & Erinkley, Lexington, for plaintiff, appellant.

R. Brookes Peters, Raleigh, E. W. Hooper, Thomasville, and Womble, Carlyle, Sandridge & Rice, Winston-Salem, for defendants, appellees.

PARKER, Justice.

It is familiar learning that a demurrer admits the truth of factual averments well stated and such relevant inferences as may be deduced therefrom, but it does not admit any legal inferences or conclusions of law asserted by the pleader and that we are required to construe the pleading challenged by a demurrer liberally with a view to substantial justice between the parties and to make every reasonable intendment in favor of the pleader. G.S. § 1-151; McKinley v. Hinnant, 242 N.C. 245, 87 S.E.2d 568; McKinney v. City of High Point, 237 N.C. 66, 74 S.E.2d 440.

The complaint alleges, 'the State Highway and Public Works Commission does not own in fee any of the lands now used by said U. S. Highway 29, 70 and 52 which abut the property of the plaintiff, or which the State Highway and Public Works Commission has attempted to appropriate for limited-access purpose.' The complaint further alleges that the defendants purporting to act under their authority, and by virtue of their office as the State Highway and Public Works Commission, have designated a portion of said highway where it crosses plaintiff's land as a limited-ac-cess highway, thereby attempting to extinguish plaintiff's rights as an abutter by limiting his access to the highway, and that they have erected signs along the highway announcing 'this area appropriated for highway purposes to be limited-eccess.' It seems plain that the acts complained of were the acts of the State Highway and Public Works Commission as an agency or instrumentality of the State.

In Annotation 43 A.L.R.2d at page 1073, note 1, it is stated: 'A limited-access highway may be defined as a roadway designed particularly for the movement of through traffic, upon which cross traffic has been eliminated or severely curtailed, to which entrances and exits are strictly controlled, and in which abutting landowners have no easement or right of access different from that enjoyed by the general public. Such highways are sometimes called 'freeways,' 'thruways,' 'express ways,' parkways,' or 'belt-lines."

The Federal-Aid Highway Act of 1956 in Sec. 108(a), 23 U.S.C.A. § 158(a) states: 'It is hereby declared to be essential to the national interest to provide for the early completion of the 'National System of Interstate Highways' * * *. It is the intent of the Congress that the Interstate System be completed as nearly as practicable over a thirteen-year period and that the entire System in all the States be brought to simultaneous completion. Because of its primary importance to the national defense, the name of such system is hereby changed to the 'National System of Interstate and Defense Highways.' ' Sec. 108(i) provides: 'The geometric and construction standards to be adopted for the Interstate System shall be those approved by the Secretary of Commerce in cooperation with the State highway departments. Such standards shall be adequate to accommodate the types and volumes of traffic forecast for the year 1975.' Sec. 112 of this Act, 23 U.S.C.A. § 163 provides: 'All agreements between the Secretary of Commerce and the State highway department for the construction of projects on the Interstate System shall contain a clause providing that the State will not add any points of access to, or exit from, the project in addition to those approved by the Secretary in the plans for such project, without the prior approval of the Secretary.' This Act provides for the apportionment of federal funds among the States for the purposes of the Act, and in Sec. 108(h) provides for construction by the States of such highways in advance of apportionment of federal funds.

The complaint alleges that the 'public highway designated as U. S. Highway 29, 70 and 52, which crosses' plaintiff's 'land is presently, and for sometime past has been, in the course of reconstruction under the control and direction of the State Highway and Public Works Commission of North Carolina, of which the defendants are members, such project being sometimes designated as No. 6734.' G.S. § 136-18(l) provides 'the said State Highway and Public Works Commission shall have such powers as are necessary to comply fully with the provisions of the present or future federal aid acts.' It would seem a fair inference from the allegations of the complaint set forth above in this paragraph that the reconstruction of the section of Highway 29, 70 and 52 by the State Highway and Public Works Commission was, and is, being done in compliance with the requirements of Project No. 6734, and that it is being reconstructed to meet the standards and requirements of the 1956 Federal-Aid Highway Act, so that it can be incorporated into the National System of Interstate and Defense Highways.

Motor car transportation is a basic need of modern society. It is of vital importance in the social and economic life of our people. The development of high speed motor car transportation has brought more and more traffic congestion and an ever mounting grisly toll of automobile accidents. Forty thousand deaths, a million and one-half injuries, and two billion dollars worth of property damage each year (Levin, 'Public Control of Highway Access and Roadside Development 3'--Public Roads Administration, 1943) demonstrate the gravity of the problem confronting public highway authorities.

It is said in Annotation 43 A.L.R.2d at page 1073, note 2: 'According to an article in 3 Stanford L.Rev. 298 (citing as authorities Levin, 'Public control of Highway Access and Roadside Development 3' and Bulletin No. 67 of the American Road Builders' Association, entitled 'Highway Economics and Design Principles') less than 15 per cent of the mishaps on ordinary roads will occur on an equal mileage of limited-access highways, and, while limited-access urban highways can easily handle 1,500 vehicles per lane per hour, only 400 vehicles per lane per hour can be carried on ordinary urban streets.'

This Court said in Sanders v. Town of Smithfield, 221 N.C. 166, 19 S.E. 2d 630, 633: 'It is generally held that the owner of abutting property has a right in the street beyond that which is enjoyed by the general public, or by himself as a member of the public, and different in kind, since egress from and ingress to his own property is a necessity peculiar to himself. Colvin v. Tallassee Power Co., 199 N.C. 353, 154 S.E. 678; Hiatt v. [City of] Greensboro, 201 N.C. 515, 522, 160 S.E. 748; Davis v. Alexander, 202 N.C. 130, 162 S.E. 372; Glenn v. Board of Education, 210 N.C. 525, 187 S.E. 781; Henderson v. [City of] Lexington, 132 Ky. 390, 111 S.W. 318, 22 L.R.A., N.S., 20; 29 C.J.S., Eminent Domain, § 105, p. 910. The right is in the nature of an easement appurtenant to the property, and abridgement or destruction thereof by vacating or closing the street, resulting in depreciation of the value of the abutting property, may give rise to special damages compensable at law. Brakken v. Minneapolis & St. L. Ry. Co., 29 Minn. 41, 11 N.W. 124; also cases cited supra. Beyond acceptance of this fundamental principle, authorities differ as to practically every other phase of the subject under discussion. However, following the line of authorities considered commendable and controlling, it is settled law in this state that under such circumstances the interference with the easement, which is itself property, is considered pro tanto, a 'taking' of the property for which compensation must be allowed, rather than a tortious interference with the right. Hiatt v. [City of] Greensboro, supra; Phillips v. Postal Telegraph [Cable] Co., 130 N.C. 513, 41 S.E. 1022; Stamey v. [Town of] Burnsville, 189 N.C. 39, 126 S.E. 103.'

The most important private right involved in limited-access highway cases is the right of access to and from the highway by an abutting landowner. The basic problem in every case involving destruction or impairment of the right of access is to reconcile the conflicting interests--i. e. private versus public rights. The time has come when ever increasing consideration must be given to the promotion of public safety on the highways and to the concept of roads whose purpose is not land service but traffic service. The term, a land service road, has been used to describe an ordinary highway intended primarily to enable abutting landowners to have access to the outside world as distinguished from the limited-access road designed primarily to move through traffic. Annotation 43 A.L. R.2d at page 1074, note 7. Two methods are available for curtailing the right of access--the right of eminent domain and the police power. Eminent domain is the power of the sovereign to take or damage private property for a public purpose on payment of just compensation. Town of Mount Olive v. Cowan, 235 N.C. 259, 69 S.E.2d 525. 'As was said by Mr. Justice Brown, in Camfield v. United States, 167 U.S. 518, 524, 17 S.Ct. 864, 42 L.Ed. 260, 262, citing Rideout v. Knox, 148 Mass. 368, 19 N.E. 390, 2 L.R.A. 81, 12 Am.St.Rep. 560: 'The police power is not subject to any definite limitations, but is coextensive with the necessities of the case and the safeguard of the public interests.' ' Tanner v. Little, 240 U.S. 369, 36 S.Ct. 379, 385, 60 L.Ed. 691. The police power is a necessary attribute of sovereignty. Brewer v. Valk, 204 N.C. 186, 167 S.E. 638, 87 A.L. R. 237. The...