Mosteller v. Southern Railway Co. , 220 N.C. 275 ( 1941 )

This is an action for a permanent injunction to prevent defendants from closing an underpass and obstructing a road which, as plaintiffs contend, they have the present right to use. The facts, as summarized from the record, appear to be as follows:

About twelve years ago the highway from Connelly Springs to Icard crossed defendant's railroad at grade a short distance west of the underpass which is the subject of the present controversy. The State Highway Commission, which succeeded the Burke County highway commissioners in control of this highway, eliminated the grade crossing by relocating the highway along the north side of the railway and through the present underpass to the south side a little west of the post office and school in that village. The underpass was made through a fill, the tracks being supported on a creosoted timber trestle work. Its upkeep is stated to be about $225 a year.

While the highway was thus located, the plaintiffs, or some of them, purchased and built adjacent to the highway, many of them near the eastern end of this section in the vicinity of the underpass.

Recently the Highway Commission, after surveys and investigation in which it was ascertained that the underpass was inadequate and that a section of the highway through it had dangerous curves, decided to relocate the road, to close the underpass, and to route the highway so as to cross the railroad on an overhead bridge a short distance from the old grade crossing, in lieu of the underpass, thus taking out the dangerous curves in its vicinity, straightening the highway, and eliminating the expense of upkeep of the underpass. Accordingly a map was prepared showing the relocated road in its relation to the existing highway, upon which map was indicated the closing of the underpass, the building of the overhead bridge across the tracks, and, in detail, the route of the proposed relocation. This map was posted at the courthouse door in Morganton, as required by statute, and is in the evidence. No protest was made to the proposed changes, either by the county commissioners or any other person, and the Highway Commission proceeded to put into effect the changes indicated. The road was relocated, the overhead bridge constructed, the new highway finished, and the routing completed. Thereupon the Highway Commission discontinued and tore up that portion of the highway on the south side leading from the underpass to the relocated highway, blocking the same and rendering it unavailable for passage, and removing a bridge across a stream upon the discontinued portion. Thereupon the Highway Commission notified the defendant to close the underpass. This defendant undertook to do, and while the work was in progress and partially completed, the plaintiffs brought this action to permanently enjoin defendant from closing the underpass and obtained a temporary restraining order. Upon the hearing of the order to show cause, the judge dissolved the restraining order, dismissed the action, and taxed plaintiffs with the costs. The plaintiffs appealed, assigning error. The plaintiffs rely on alternative propositions, either of which, they contend, puts the defendant in the wrong: (1) That the relocation of the highway constituted an abandonment by the Highway Commission of the discontinued portion of the old road, which, as they contend, automatically, under C. S., 3838 (b) (Michie's Code, 1939), gave it the status of a neighborhood public road, which defendant had no right to obstruct; (2) that there had been a complete official abandonment or vacation of the road, in which case, as persons who had purchased and built adjacent thereto on the faith of its permanent existence, they had, severally, acquired an easement — not only in the road, but in the underpass as a part of it — with the enjoyment of which defendant cannot lawfully interfere.

1. Chapter 302, Public Laws of 1933, C. S., 3838 (b) (Michie's Code, 1939), as amended, provides that "all those portions of the public road system of the State, which have not been taken over and placed under maintenance, or which have been abandoned by the State Highway Commission,but which remain open and in general use by the public . . . are hereby declared to be neighborhood public roads, and they shall be subject to all the provisions of this section with respect to the alteration, extension, or discontinuance thereof," etc. (Italics supplied.) We are of opinion that short sections of roads, discontinued by the Highway Commission in the interest of public safety and closed to travel, are not within the reasonable definition of abandoned highways remaining open and in general use, and are not within the contemplation of the statute.

Of course it was not the purpose of this statute, where it applies, to give any private easement in the further use of an abandoned road, but only to continue the status as a public road. On this phase of the case, none of the plaintiffs could claim a greater right than that which belongs to the general public. If the Highway Commission had the power not only to substitute one section of the road for another but to close the abandoned section, a subject which we discuss more fully below, it is clear that in this respect plaintiffs do not have a justiciable grievance.

2. The case presents no question of easement in the abandoned road by prescription under the common law, because the requisite twenty years user is lacking. It is at least doubtful whether such an easement could be acquired over defendant's right of way by prescription under any circumstances. C. S., 434; Michie's Code, 1939. But plaintiffs, in this aspect of their argument at least, rest their case upon the theory that there had been a complete official abandonment of the road, leaving to them the right to its continued use as persons who had purchased and built adjacent to it on the faith of its permanent existence, citing amongst other authorities Davis v. Alexander, 202 N.C. 130, 162 S.E. 372, andLong v. Melton, 218 N.C. 94, 10 S.E.2d 699.

In Davis v. Alexander, supra, the facts showed continuous use of the road over Alexander's premises for more than fifty years, and the decision might well have turned on the acquisition of a prescriptive right at common law. The case, however, may be considered as supporting the view held by the plaintiff where the factual situation admits of its application. InLong v. Melton, supra, the same principle is applied with some variation as to the extent of the persisting right of user in the vacated road.

The reasoning upon which such a right is predicated, the source from which, where recognized, it is said to be derived, leads us to consider the propriety of reasonable limitations upon its exercise. It would be strange if a temporary public servitude, imposed in invitum, on the lands of the owner, and terminating before the prescription period had expired, could serve to take from the owner and give to another a private easement in his land which even the sovereign cannot take without compensation. At most, such a right, when recognized, must be in the nature of a continuation, exnecessitate, of the original servitude, and must be confined to the exigency of egress and ingress; and since it is in derogation of private right, it must be limited by due consideration for the owner of the soil who was not a party to any commitment made to a purchaser along the highway and did nothing to instigate his faith in its permanence. Those entitled to the continued use of an abandoned or vacated public road on such a principle are obviously not entitled to have the whole road throughout its length left to them in its original unimpaired condition, on the basis of mere convenience in reaching objectives formerly more accessible. Crowellv. Power Co., 200 N.C. 208, 156 S.E. 493. In that ease the plaintiff was nonsuited on a similar plea.

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. Blanding v. Las Vegas, 52 Nev. 52, 280 P. 644, 68 A.L.R., 1273; Kinnear Mfg. Co. v. Beatty, 65 Oh. St., 264, 62 N.E. 341;DavisColliery Co. v. Harding, 83 W. Va. 609, 98 S.E. 815. Here the entire road leading past plaintiffs' premises has been left in its original condition, connecting with the relocated highway, which reaches the objectives they seek with nothing more than an added inconvenience which we do not think sufficient to constitute or support a cause of action. Crowellv. Power Co., supra.

Ins. Co. v. Carolina Beach, 216 N.C. 778, 7 S.E.2d 13, is not applicable to the facts of this case. There plaintiffs purchased with reference to a map showing streets, and it has long been held that in that event the municipality cannot close such streets to the use of abutting owners. The doctrine, so far as we know, has not been applied to alterations or changes in public roads forming a part of the highway system. Cameron v. Highway Com., 188 N.C. 84, 123 S.E. 465.

3. The action of the Highway Commission in ordering the underpass closed is challenged on the ground that the statute gives no express authority to discontinue an underpass once established. C. S., 3846 (y) (Michie's Code, 1939), confers upon the Highway Commission the power to eliminate grade crossings. Chapter 74, Public Laws of 1929, attempted to give such express power with regard to the elimination of inadequate underpasses and the substitution of other adequate facilities. It attempted to do so, however, by amendment to the 1921 law, which had already been amended by chapter 277, Public Laws of 1925, and it may be said, at least, that the amendment so intended is difficult to allocate. We think, however, that such a power must be implied, if not, indeed, expressly covered, in the language used in chapter 46, Public Laws of 1927, section 1, which authorizes the Highway Commission not only to abandon roads where advisable, but upon relocation, to substitute one section for another. The validity of the authority thus conferred is upheld in Parker v. Highway Commission, 195 N.C. 783, 787,143 S.E. 871, 874. We think also that the power intended to be conveyed in this section may well be supported as an exercise of the police power of the State through an appropriate agency — R. R. v. Goldsboro, 155 N.C. 356,71 S.E. 514 — should it become necessary to invoke that doctrine.

Roads are laid out, built, and maintained primarily for the public convenience; but apart from the economies they promote, there is no more imperative consideration in their construction and maintenance than the public safety. From the testimony and inspection of the map which is in evidence, it appears that dangerous curves existed near the underpass which is pronounced "inadequate," and apparently in the approaches thereto. We believe the closing of the underpass under the facts of this case to be within the general powers committed to the Highway Commission under the cited laws. To state the point concisely, the Highway Commission had the right to speak and the defendant the duty to obey. Conceding that the Highway Commission had the right to substitute another section of road for that leading through and beyond the underpass, that power undoubtedly has been exercised and the elimination of the road renders the underpass useless and unavailable to the plaintiffs, either as members of the general public or as persons claiming an easement therein, however derived. The closing of the underpass under such circumstances is but a resumption on the part of the defendant of the control and use of its own property which invades no right of the plaintiffs.

4. It was proper to dismiss or dissolve the restraining order, but the dismissal of the action upon the hearing of the order to show cause is not approved by decisions relating to the present practice. Cox v. Kinston, 217 N.C. 391, 399, 8 S.E.2d 252, 258; Bynum v. Powe, 97 N.C. 374,2 S.E. 170. Motions of that kind should be heard at term. Taxing of the plaintiffs with costs was therefore at least premature. In this respect the judgment must be modified. In other respects it is

Affirmed.