State Highway Commission v. Raleigh Farmers Market, Inc.

• Decision Date: 29 January 1965
• Docket Number: No. 466,466
• Citation: 263 N.C. 622,139 S.E.2d 904
• Court: North Carolina Supreme Court
• Parties: STATE HIGHWAY COMMISSION, v. RALEIGH FARMERS MARKET, INC., Raleigh Savings & Loan Association and L.N. West and wife, Betsey John H. West.

Page 904

139 S.E.2d 904

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.

Jan. 29, 1965.

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 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 shoud not be required to pay for the denial of access to 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...