Moses v. State Highway Commission, 596

• Decision Date: 26 February 1964
• Docket Number: No. 596,596
• Citation: Moses v. State Highway Commission, 261 N.C. 316, 134 S.E.2d 664 (N.C. 1964)
• Parties: Joseph E. MOSES and wife, Josephine Moses v. STATE HIGHWAY COMMISSION.
• Court: North Carolina Supreme Court

Page 664

134 S.E.2d 664

261 N.C. 316

Joseph E. MOSES and wife, Josephine Moses v. STATE HIGHWAY COMMISSION.

No. 596

Supreme Court of North Carolina.

Feb. 26, 1964

T. W. Bruton, Atty. Gen., Harrison Lewis, Asst. Atty. Gen., Andrew McDaniel, Trial Atty., Quillan, Russ & Worth, Fayetteville, for respondent appellants.

Charles R. Williams, Robert B. Morgan, Morgan & Williams, A. R. Taylor, Lillington, for appellee.

RODMAN, Justice.

An order directing the appointment of commissioners in a condemnation proceeding is interlocutory. It is not such a determination of the rights of the parties as permits a dissatisfied party to appeal. G.S. § 1-277, Burlington City Board of Education v. Allen, 243 N.C. 520, 91 S.E.2d 180; Veazey v. City of Durham, 231 N.C. 357, 57 S.E.2d 377. Nonetheless when, as here, the parties desire an answer to a question which is fundamental in determining their rights, is also of public importance, and when decided will aid State agencies in the performance of their duties, we will in the exercise of the supervisory jurisdiction given us, answer the question, G.S. § 1-278; Greene v. Charlotte Chemical Laboratories, Inc., 254 N.C. 680, 120 S.E.2d 82; Edwards v. City of Raleigh, 240 N.C. 137, 81 S.E.2d 273.

The question now for decision arises on this factual situation: Prior to 1954, U.S. 301 was a North-South link in the primary system of federal highways. It was one hundred feet in width, with a paved area in the center for vehicular traffic. This paved area provided one lane for northbound traffic and another for south-bound.

The Highway Commission, in order to convert 301 into an Interstate Highway, proposed to enlarge its right-of-way. It had, prior to 15 June 1954, surveyed and marked the proposed boundary of the enlarged highway.

On 15 June 1954, Joseph Moses purchased from D. A. Calhoun 1.7 acres. This tract is situate east of 301. Its western boundary is the line respondent had marked for the boundary of 301 when enlarged. In December, 1954, petitioners purchased an additional 2 acres from Calhoun. The description in the deed then made covers 3.7 acres. It includes the 1.7 acres purchased in June, 1954. Petitioners purchased the 3.7 acres for the erection and operation of a motel and restaurant. The western boundary of the 3.7 acres is more than 100 feet east of the eastern line of 301 as it existed in 1954. The 3.7 acres is part of a larger tract owned by Calhoun. The western line of his property was the eastern line of 301. On 10 July 1957, Calhoun granted petitioners an easement to cross his land lying between the 3.7 acres and the highway.

In August, 1959, respondent purchased from Calhoun the land lying between petitioners' 3.7 acres and the boundary of 301 as it existed in 1954. This purchase was made to enlarge 301 and make it a 'controlled access,' Interstate Highway, with four lanes for through traffic. These lanes are near the center of the right-of-way. Beyond the through traffic lanes are 'service roads.' These service roads are separated from the inner lanes by a fence. Abutting property owners gain access to the inner lanes by use of the service roads. Interstate, controlled access highways are constructed under congressional and legislative authorization. Federal-Aid Highway Act of 1956, (70 Stat. 374); 23 U.S.G.A § 111; c. 993, S.L.1957, codified as G.S. § 136-89.48 et seq.

A motorist traveling south on the inner lane must, in order to reach petitioners' motel and restaurant, travel 1.65 miles further than he would if allowed direct access to their property. A motorist traveling in the northbound lane to get to petitioners' property must travel .65 miles further than he would if given direct access.

If the denial of immediate access to the inner traffic lane is a taking of property compensation must be paid. N.C. Constitution, Art. I, Sec. 17; Williams v. State Highway Commission, 252 N.C. 141, 113 S.E.2d 263; Braswell v. State Highway Commission, 250 N.C. 508, 108 S.E.2d 912; but if the substitution of a service road for the direct access theretofore enjoyed is an exercise of the police power, any diminution in the value of petitioners' property is damnum absque injuria. State v. Warren, 252 N.C. 690, 114 S.E.2d 660; Morris v. Holshouser, 220 N.C. 293, 17 S.E.2d 115, 137 A.L.R. 733; Roach v. City of Durham, 204 N.C. 587, 169 S.E. 149.

Abutting property owners having a private access to a highway cannot be denied the right to enter and use a road constructed for public benefit.

Petitioners do not claim a denial of access; they merely assert access to a portion of the highway is less convenient now than in 1957 when they acquired a right-of-way across land subsequently acquired by respondent. In fixing the line marking the boundary between public and private rights, we are reminded of what Seawell, J. said in Mosteller v. Southern R. R., 220 N.C. 275, 17 S.E.2d 133:

'Ancient doctrines pertaining to roads of the horse and buggy days, when those roads were for the most part trails through the woods and fields, must be applied to modern conditions with caution and sound discrimination. Once, ' ingress and egress' were practically all such a road afforded, and there is logic in the thought that it is all of such a doctrine which should survive. Today roads have been multiplied and expanded into such luxurious proportions that the expression, 'once a road, always a road', if we attach to it the significance given it by plaintiffs, will give to the abutting owner in a vacated road, if he takes all of it, an easement wholly beyond his necessities and not within the reasonable application of the doctrine.

'The trend of judicial decision where this doctrine is recognized is decidedly toward confining such a right to the necessity of egress and ingress.'

Our statutes, G.S. § 20-156(a), (requiring one entering a highway from a private way to yield the right of way) and G.S. § 20-165.1, (authorizing the establishment of one way streets and roads) illustrate the power of the State to regulate the time and manner of entering a public highway. Although the State may change the grade of a road making immediate access more difficult, such a change and the resulting inconvenience caused the property owner is not a compensable injury. Smith v. State Highway Commission, 257 N.C. 410, 126 S.E.2d 87; Thompson v. Seaboard Air Line R. R., 248 N.C. 577, 104 S.E.2d 181; Calhoun v. State Highway Commission, 208 N.C. 424, 181 S.E. 271.

All of these things may required an abutting owner to travel a greater distance to get to his destination. The law applicable to such changes and regulations was stated in Sanders v. Town of Smithfield, 221 N.C. 166, 19 S.E.2d 630. It is there said:

'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. * * * 'Where there is no actual encroachment on the property, but only the question of interference with the appurtenant easement, since the right itself springs out of and attaches to the use of a public facility, conservative opinion tends strongly to limit it to such reasonable recognition as will meet the exigencies involved in the owner's use of his property, and yet will not unduly restrict the government in functioning for the public convenience and necessity.

'It is understood that absolute equality of convenience can not be achieved, and those who take up their residence or purchase and occupy property in proximity to public roads or streets do so with notice that they may be changed as demanded by the public interest. To justify recovery in...