Hiatt v. City of Greensboro ( 1931 )

BROGDEN, J., dissents. On its appeal to this Court, the defendant, city of Greensboro, contends that upon all the evidence introduced at the trial in the Superior Court, plaintiffs are not entitled to recover of the defendant the damages, if any, resulting to their property situate on the east side of South Spring Street, from the closing by defendant of said street at its intersection with the tracks of the North Carolina Railroad Company and its lessee, the Southern Railway Company, and that it was, therefore, error for the trial court (1) to refuse to allow its motion made at the close of all the evidence, for judgment as of nonsuit, and (2) to decline to instruct the jury, as requested by the defendant, in writing and in apt time, that upon all the evidence the jury should answer the second issue, "Nothing." The defendant, by its assignments of error in this Court, presents for decision the single question involved in these contentions.

The question of law to be decided may be stated as follows:

Where a municipal corporation, by statute charged with the duty and vested with the power to establish, construct and maintain streets within its corporate limits, over which the public may travel in reasonable safety and with reasonable convenience, pursuant to its contract or agreement with a railroad company, which has agreed to pay part of the cost and expense incurred by such corporation in carrying out a comprehensive program for the elimination of grade crossings within its corporate limits, caused by the intersection of its tracks by certain streets established, constructed and maintained by such corporation, and under express statutory authority, has closed one of its streets and has thus deprived the owner of a lot abutting on such closed street of the use of said street as a means of egress from and of ingress to said lot, which he had theretofore enjoyed, is such corporation liable to the owner of the lot for damages resulting from the closing of the street?

This question does not seem to have been heretofore presented to this Court for decision. Counsel for defendant cite Crowell v. Monroe,152 N.C. 399, 67 S.E. 989, and rely upon the decision in that case as an authority in support of defendant's contention in this case. In the cited case it was held that the plaintiff was not entitled to recover of the defendant on her claim for damages resulting from the closing of a street by the defendant. It is said, however, in the opinion for the Court: "The record does not present the question of taking private property for public use, nor the question of the permanent closing of a public street in which the abutting owner has certain recognized rights. Moose v. Carson,104 N.C. 431, 10 S.E. 689. The facts disclose nothing more than a closing of a railway crossing in order that an overhead bridge immediately above the crossing may be erected for the use of the public, and evidently for public safety and convenience. It may be that plaintiff is inconvenienced and temporarily damaged, but it is damnumabsque injuria." In the instant case, the plaintiffs are the owners of a lot abutting on the closed street. As the result of the closing of the street, the lot is now on a cul de sac, whereas prior to the closing it was on a public street which afforded access to said lot from two directions. The closing of the street deprives plaintiffs of the use of the street as a means of access to their lot from one direction, and stops all travel along the street from the other direction. The decision in the cited case is not controlling in the instant case, and is not an authority in support of defendant's contention that upon all the evidence plaintiffs are not entitled to recover of the defendant the damages which have resulted to their property from the closing of the street by the defendant.

The law in this and in other jurisdictions recognizes a distinction between the rights of an owner of a lot abutting on a public street, and the rights of the public in and to such street. Ordinarily, the public has the right only to pass and repass over and along the street so long as it is maintained by public authority for that purpose. In addition to this right, which he has as a member of the public, the owner of the abutting lot has the right to have the street kept open as a means of egress from and of ingress to his property. He has an easement in the street, which is appurtenant to his lot. This easement is his private property of which he cannot be deprived even for the use of the public, without just compensation. It is said: "An abutting owner has two distinct kinds of rights in a highway, a public right which he enjoys in common with all other citizens, and certain private rights which arise from his ownership of property contiguous to the highway, and which are not common to the public generally; and this regardless of whether the fee of the highway is in him or not. These rights are property of which he may not be deprived without his consent, except upon full compensation and by due process of law. They include the easement of access, and of light and air, the right of lateral support, and the right to have the highway kept open as a thoroughfare to the whole community for the purpose of travel. . . . An abutting landowner on a public highway has a special right of easement and user in the public road for access purposes and this is a property right which cannot be damaged or taken from him without due compensation." 29 C. J., p. 547. See Colvin v. Power Co., 199 N.C. 353, 154 S.E. 678.

In the instant case, plaintiffs, the owner of a lot abutting on South Spring Street, by the closing of said street have been deprived of their easement of access to their property over and along said street, with the result that the value of their property for residential and other purposes has depreciated. In 13 R. C. L., at page 71, it is said: "It has been held that the vacation of a highway or street is not an injury to the abutting owners within the provisions of the Constitution requiring compensation, and in the absence of legislative provisions for damages, none can be recovered. But the general rule is that persons specially injured by the vacation are entitled to recover such damages as they may sustain even in the absence of a statute providing therefor." See note in 49 A.L.R., at page 351, where it is said: "The weight of authority supports the proposition that if, by the vacation or closing of the street, access to property from the general system of streets in that direction is obstructed, and the property is left fronting on a cul de sac, the owner may recover damages." This statement is supported by numerous decisions of courts in many jurisdictions, which are cited by the author of the note.

We are of opinion, after careful consideration, that the question of law presented by this appeal should be answered in the affirmative. The plaintiffs in the instant case have suffered special damages in the depreciation of the value of their property resulting from the deprivation of their right of access to their property from the northern section of the city and from the stopping of all travel by their property from the southern section of the city. They have been deprived of rights which differ in kind and degree from the rights of the public. They are entitled to recover the damages assessed by the jury and the judgment is affirmed.

No error.

BROGDEN, J., dissents.