Abdalla v. State Highway Commission, 134 S.E.2d 81

Abdalla v. State Highway Commission

134 S.E.2d 81

N.C.

1964

Check Treatment

Moore, J.

Plаintiffs assign as error the action of the court in entering the judgment of nonsuit.

The action was nonsuited on the theory that it is barred by the statute of limitations. Conceding for the purpose of this appeal, but not -deciding, that the court erred in its ruling -on the plea in bar, we nevertheless hоld that -the judgment must be affirmed for it clearly appears from the record that the defendant is entitled to a dismissal of the action as а matter of law. The rights of the parties are fixed and controlled by the “Right of Way Agreement” and defendant has accorded to plaintiffs all the rights to which they are entitled thereunder. It is not after the manner of -appellate courts to' upset judgments when the action оf the trial court, even if partly erroneous, could by no possi- *118 ibility injure the 'appellant. Justice v. Mitchell, 238 N.C. 364, 78 S.E. 2d 122; Wells v. Clayton, 236 N.C. 102, 72 S.E. 2d 16; Munday v. Bank, 211 N.C. 276, 189 S.E. 779; Bank v. McCullers, 201 N.C. 440, 160 S.E. 494.

It is generally recognized that the owner of land abutting a highway has a right ¡beyond that which is enj oyed by the general public, a special right ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of easement in the public road for access purposes, and this iis а property right which cannot be damaged or taken from him without due compensation. Hedrick v. Graham, 245 N.C. 249, 96 S.E. 2d 129; Williams v. Highway Commission, 252 N.C. 772, 114 S.E. 2d 782; Sanders v. Smithfield, 221 N.C. 166, 19 S.E. 2d 630; Hiatt v. Greensboro, 201 N.C. 515, 160 S.E. 748; State v. Department of Highways, 8 S. 2d 71 (La. 1942); Breinig v. County of Alleghany, 2 A. 2d 842 (Penn. 1938); Genazzi v. Marin County, 263 P. 825 (Cal. 1928). But a landowner is not entitled, as against the .рublic, to access to his land at all points in the boundary between it .and the highway, although entire access ¡cannot be cut off. It he hаs free and convenient access to his property, .and his means of ingress and egress are not substantially interfered with -by the public, he hаs no cause of complaint. Genazzi v. Marin County, supra; Warren v. Iowa State Highway Commission, 93 N.W. 2d 60 (Iowa 1958); King v. Stark County, 266 N.W. 654 (N.D. 1936); State Highway Board v. Baxter, 144 S.E. 796 (Ga. 1928); Gilsey Buildings, Inc. v. Incorporated Village, 11 N.Y.S. 694 (1939).

In Barnes v. Highway Commission, 257 N.C. 507, 126 S.E. 2d 732, plaintiff owned land .abutting the highway. On his land were three 'business establishments — a service ¡station, a bulk oil plant and a frozen custard place. The Highway Commission ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍constructed curbing along the edge of the highway at certain points in front of these establishments and left ¡spaces for ingress and egress. The opinion, delivered by Bobbitt, J., ¡states the following principle of law (at p. 517): “ ‘While entire access may not be out off, an owner is not entitled, as ■against the public, to access to his land at all points in the boundary ¡between ¡it and the highway; if he hais free and convenient access to. his property аnd to the improvements thereon, and his means of ingress and egress are not substantially interfered with by the public, he has no cause of complaint.’ 39 C.J.S., Highways, § 141; . . .” The opinion concludes that plaintiff “is entitled to recover compensation on account of injury to . . . his . . . property to the extent, if any, such ■curbing substantially impairs free and convenient access thereto and the improvements thereon.” (Emphasis added).

The principles stated in the two preceding paragraphs relate to a landowner’s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍common-law right ¡of access. In the instant case plaintiffs *119 do not, and cannot, rely on the common-law right of access; such rights a® they have are embo'died in amid limited by thе “Right of Way Agreement.” The agreement provides that plaintiffs “shall have no right of access to the highway constructed on said right-of-way except . . . .” Thus, the parties knew at the time of making the contract that the highwаy to be constructed was one of limited and restricted access and they were contracting with respect to the question of access. Yet plaintiffs contend they reserved under the contract the right of direct access to all points along the servicе road and ramp opposite their property, which is a greater right than they would have 'had at common law had the contract been silent as to access. Under the terms of the contract plaintiffs first gave up all right of access and then by way of exceрtion reserved a specific right of access to the highway “by way of service roads and ramps.” Defendant has made availablе to plaintiffs exactly what the contract calls for, access from plaintiffs’ land to the highway by way of service roads and ramps.

Easements of right-of-way acquired by the Highwаy Commission for public highways are, under existing law, so extensive in nature and the control exercised by the Commission so exclusive that the serviеnt estate in the land, for all practical purposes, amounts to 'little more than a right of reverter in the event ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the State’s easеment is abandoned. It is for this reason that an abutting landowner’s right of access to a public highway is generally defined as an easement, even though he may own the fee in the land over which the highway runs. Hence, a right of access to a public highway is an easement apрurtenant to land. Williams v. Highway Commission, supra; Hedrick v. Graham, supra. The Highway Commission is in effect the servient owner and has the right to locate thе access route under the general rule that where an easement is granted or reserved in general terms which do not fix its locatiоn, the owner of the servient estate has the right in the first instance to designate the location of such easement, subject to the limitation that he exercise such right in a reasonable manner and with due regard to the rights of the owner of the easement. Andrews v. Lovejoy, 247 N.C. 554, 101 S.E. 2d 395; Cooke v. Electric Membership Corp., 245 N.C. 453, 96 S.E. 2d 351. Indeed, the Highway Commissiоn, as -trustee for the public, has ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍greater -right of control than a private servient owner.

Plaintiffs -do not complain that (they have been denied access; they complain that they iare not permitted to designate and locate the route of access. It is their position that the word “highway,” >as .used in the “Right of Way Agreement,” refers to the main highway -and not to service roads and ramps, -that their acсess to the main highway is re- *120 stari-cted aod limited to access “by w-ay of service road® 'aod ramps,” foot, ais to the service road aod ramp oo the right-of-way oear aod parallel to their .boundary, direct access thereto is oot limited by contrаct or otherwise. However, according to the map .introduced by plaintiffs ■and the infoimation and explanation thereon .aod attached ¡thereto, the Highway Commission has made available to plaintiffs direct access to all of the service road оpposite their boundary except a very short segment at the junction of the service road aod ramp. The ramp has a specific purpose 'and function. It is not established for the accommodation of abutting landowners; it is for the interchange of traffic between two heavily ¡travelled highways (one overpassing the other). It is inf-deed the junction or joinder of the two highways. For all practiсal purposes it is a part of the main highway within the meaning of the word “highway” as set out in the “Right of Way Agreement.” Under the circumstances clеarly disclosed ¡by plaintiffs’ evidence, we hold as a matter of law that plaintiffs’ access to the service road is free and cоnvenient ¡and defendant has not substantially interfered therewith, and under the contract between the piarties plaintiffs -are not entitled to direct access -to the ramp.

Affirmed.