Smith v. State Highway Commission, 603

• Decision Date: 15 June 1962
• Docket Number: No. 603,603
• Citation: 257 N.C. 410,126 S.E.2d 87
• Court: North Carolina Supreme Court
• Parties: B. E. SMITH and wife, Electa C. Smith, Petitioners, v. STATE HIGHWAY COMMISSION, Respondent.

Page 87

126 S.E.2d 87

257 N.C. 410

B. E. SMITH and wife, Electa C. Smith, Petitioners, v. STATE HIGHWAY COMMISSION, Respondent.

No. 603

Supreme Court of North Carolina.

June 15, 1962

Atty. Gen., T. W. Bruton, Asst. Atty. Gen., Harrison Lewis, Trial Atty., Andrew McDaniel, Raleigh, and Hoyle, Boone, Dees & Johnson, by T. C. Hoyle, Jr., Greensboro, for respondent-appellant.

Jordan J. Frassineti and Sapp & Sapp, by Armistead W. Sapp, Greensboro, for petitioners-appellees.

PARKER, Justice.

The State Highway Commission assigns as error the denial by the court of its motion for judgment of compulsory nonsuit made at the close of petitioners' evidence--the respondent offered no evidence. G.S. § 1-183. In denying the motion the court committed reversible error.

The State Highway Commission is an unincorporated governmental agency of the State of North Carolina, charged with the duty of exercising certain administrative and governmental functions. Williams v. North Carolina State Highway Commission, 252 N.C. 772, 114 S.E.2d 782; McKinney v. North Carolina State Highway Commission, 192 N.C. 670, 135 S.E. 772.

The powers and duties of the State Highway Commission are set forth in G.S. Ch. 136, Art. 2. It is the State agency created for the purpose of constructing and maintaining our public highways. De Bruhl v. State Highway & Public Works Commission, 245 N.C. 139, 95 S.E.2d 553.

All the evidence shows the following: The State Highway Commission owns a 100-foot right of way on Bessemer Avenue from Summit Avenue eastwardly to the city limits of Greensboro, which right of way passes directly in front of petitioners' realty. Its complete right to occupy and use the entire surface of the land covered by its perpetual easement for all time to the exclusion of petitioners, their heirs, and assigns, makes the bare fee remaining at present in petitioners for all practical purposes of no value. North Carolina State Highway Commission v. Black, 239 N.C. 198, 79 S.E.2d 778. In East Bessemer Avenue respondent had an established highway, and acting with lawful authority vested in it by the General Assembly and for legitimate highway purposes, it, acting in a governmental capacity, raised the grade of the established highway in East Bessemer Avenue passing in front of petitioners' property so as to impair or destroy, unless ramps are built, petitioners' ingress to this public highway from their abutting land, and egress from this public highway to their abutting land. According to a stipulation of the parties all grading, filling, and paving by respondent on East Bessemer Avenue in front of petitioners' abutting land was done entirely within the limits of its right of way. There is neither allegata nor probata that respondent did not do the work in a proper method or manner.

When a public highway is established, whether by dedication, by prescription, or by the exercise of eminent domain, the public easement thus acquired by a governmental agency includes the right to establish a grade in the first place, and to alter it at any future time, as the public necessity and convenience may require. Consequently, it is the rule with us, and very generally held elsewhere, that, unless otherwise provided by statute or constitutional provision, an abutting property owner, even if he owns the fee of the land within the highway, may not recover for damages to his land caused by a municipal corporation or the State Highway Commission changing the grade of an established street or highway, when said change is made pursuant to lawful authority and for a public purpose, and there is no negligence in the manner or method of doing the work. Any diminution of access by an abutting landowner is damnum absque injuria. Thompson v. Seaboard Air Line R. Co., 248 N.C. 577, 104 S.E.2d 181; Jenkins v. City of Henderson, 214 N.C. 244, 199 S.E. 37; Calhoun v. State Highway and Public Works Commission, 208 N.C. 424, 181 S.E. 271; Stamey v. Town of Burnsville, 189 N.C. 39, 126 S.E. 103; Bennett v. Winston-Salem Southbound R. Co., 170 N.C. 389, 87 S.E. 133, L.R.A.1916D, 1074; Hoyle v. City of Hickory, 167 N.C. 619, 83 S.E. 738; Dorsey v. Town of Henderson, 148 N.C. 423, 62 S.E. 547; Meares v. Commissioners of Town of Wilmington, 31 N.C. 73; 29 C.J.S. Eminent Domain § 123, pp. 938-939; 18 Am.Jur., Eminent Domain, sec. 211; Nichols on Eminent Domain, 3d Ed., Vol. 2, sec. 6.4441, (1), (2), (3).

Nichlos, ibid, p. 369 states:

'Accordingly, there are few propositions better settled by the authorities than that an owner of land adjoining the highway and owning the fee of the way is not constitutionally entitled to compensation for injury resulting from a change in the grade. As serious injuries to lands adjoining public ways were inflicted by changes of grade in the early years of the last century, the question was thoroughly contested and conclusively settled before the modern theories extending municipal liability had been invented, and the old rule was then too well supported by authority to be shaken.'

'Incidental interference with the abutting owner's easements of light, air, and access by reason of the change of grade does not entitle him to compensation, in the absence of a constitutional or statutory liability.' 29 C.J.S. Eminent Domain § 123b, p. 939. See also Nichols, ibid, sec. 6.4441 (3).

'Where the change of grade of a highway causes damage to the land of an abutter it is not deemed a 'taking' in the constitutional sense so as to require compensation therefor as in eminent domain. This rule does not, however, apply to cases of partial takings, where damage to the remainder by reason of change of grade is involved, nor does it apply where the alteration in the grade is not lawfully authorized or is effected for other than legitimate street purposes.' Nichols, ibid, pp. 364-368. Numerous cases from the federal and state jurisdictions are cited in support of the text, including our cases of Dorsey v. Henderson, supra; Harper v. Town of Lenoir, 152 N.C. 723, 68 S.E. 228; Earnhardt v. Board of Commissioners of Town of Lexington, 157 N.C. 234, 72 S.E. 864; Hoyle v. City of...