Tbe statutes by which this appeal is to be determined are contained in chapter 70, article 15, of tbe North Carolina Code of 1927. Pursuant to authority thereby conferred tbe State Highway Commission built two highways in Yancey County, each with an asserted right of way of sixty feet in width. At tbe intersection of these highways in tbe villаge of Mieaville was a piece of land owned by tbe defendants, on which tbey began tbe erection of a filling station. Tbe plaintiff, having ascеrtained tbat tbe building would cover a part of each right of way, brought suit to restrain tbe defendants from maintaining tbe filling station on tbe rights of way and to compel them to remove tbe obstruction.
*606 While the fundamental defense is that the plaintiff has no right of way on the defendants’ property, there are several related questions which, of course, must be considered.
It was provided by the act of 1921, ch. 2, sec. 7, that the rights of way of all roads taken ovеr under that act should be not less than thirty feet in width. The maximum width was not fixed, but on 16 October, 1929, the plaintiff, pursuant to legislative authority, prescribed sixty feet as the width оf all rights of way for the State highways, except as otherwise indicated on the ground. N. 0. Code, 1927, 3846(j) (b) (j). It is manifest that the rights of way described in the complaint werе laid out; signs were posted on the highways numbered 69 and 104, as they were on all the State highways, at intervals of approximately two miles, although no definite right of way was indicated on the defendants’ lot with respect to either route. After the ordinance was enacted and the highways were constructed and the signs were put up the defendants built the filling station, parts of which project into the highways. This is a physical fact demonstrable by observation. Before the building was completed the defendants were informed that it was on a part of each highway, and without regard to the notice they proceeded with the construction. If the house occupies part of these public highways why should the obstruction not be removed in the interest of the public safety ? While availing themselves of the right to build on their lot the defendants were obligated to yield their private interests to the needs of the рublic, but not without proper compensation.
The defendants urge several objections. They contend that the ordinance enacted by the plaintiff was ineffective; that rules for the use of the State highways and for the placing of obstructions thereon cannot be enforced until the plaintiff shall have acquired the property in the way the law prescribes. A literal construction of the sections (3846(j) d, j) may afford a semblance оf reason for this position; but the highway act must be construed in its entirety. The avowed purpose of the act was to enable the State, through the аgency of an administrative body, to lay out, take over, establish, and construct certain highways throughout the State. The power to lay out and construct a highway implies the power to acquire a right of way having at least the minimum statutory width. In fact, the power to acquire rights of way is plainly confеrred. N. C. Code, 1927, 3846(j). There is no ground for saying that the plaintiff could not reasonably increase the minimum statutory width; and if by resolution or ordinance it adopted a uniform rule generally applicable to the State highways we see no convincing reason for exempting the defendants from its operаtion.
Conceding the right of the plaintiff to make rules in proper cases, as held in
Radford v. Young,
This position results from tbe assumption that tbe State Highway Commission may purposely and wilfully abuse tbe discretion with wbicb tbe law invests it. It is bard to see bow any administrative body can function without exercising discretion; but even then tbe disсretion must not be whimsical, or capricious, or arbitrary, or despotic. That such abuse of discretion may avoid or nullify an act is elementary.
Tbе clause referred to, instead of being a means of obnoxious discrimination, was intended to prevent inequitable results. A building may be situated so close to water, ravine, cliff, mountain side, or other natural object that its removal from a right of way would be equivalent to its destruction, and in such circumstanсes tbe Commission should be permitted in tbe exercise of discretion to see that justice is administered and that public and private rights are protected. This, as we understand it, is tbe scope and purpose of tbe clause to wbicb objection is made. In
S. v. Tennant,
It is further contended that tbe plaintiff has not acquired a right of way by gift, purchase, or cоndemnation, and that tbe property of tbe defendants has been taken without due process of law and without just compensation. Constitution of Unitеd States, Art. Y.
Whether tbe purpose for wbicb private property is taken is a public one is a judicial question, but tbe question of necessity and of tbe proper extent of a taking is legislative and is subject to determination by such agency and in such way as tbe State may designate. Tbe due proсess clause is not violated by failure to give tbe owner of property an opportunity to be beard as to tbe necessity and extent of аppropriating bis property to public use; but it is essential to due process that tbe
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mode of determining tbe compensation to be paid for tbe appropriation be snob as to afford tbe owner an opportunity to be beard.
Sears v. Akron,
Affirmed.