North Carolina State Highway Commission v. Wortman , 4 N.C. App. 546 ( 1969 )

167 S.E.2d 462 (1969) 4 N.C. App. 546

NORTH CAROLINA STATE HIGHWAY COMMISSION
v.
Lothar WORTMAN and wife, Anita M. Wortman.

No. 6818SC341.

Court of Appeals of North Carolina.

May 28, 1969.

Atty. Gen. Thomas Wade Bruton, Deputy Atty. Gen. Harrison Lewis, Trial Atty. J. Bruce Morton, Raleigh, and Associate Counsel Eugene G. Shaw, Jr., Greensboro, for plaintiff appellee.

Morgan, Byerly, Post & Keziah, by J. V. Morgan, High Point, for defendants appellants.

FRANK M. PARKER, Judge.

Defendants assign as error the trial court's adjudication that at the time of commencement of the present condemnation proceeding defendants' property was already subject to an easement of the North Carolina State Highway Commission for a right-of-way extending to a line located 152 feet to the east of and running parallel with the center line of the pavement of U.S. Highway No. 29 as it existed prior to construction of the new project. The stipulations of the parties and the maps and right-of-way agreements attached as exhibits thereto clearly establish that the survey center line of the previous Highway Project No. 53-54 was 27 feet to the east of and ran parallel with the center line of the pavement on U.S. Highway No. 29 as previously constructed. The western boundary line of defendants' property coincides with this pavement center line. The stipulations and exhibits also establish that the Highway Commission acquired from defendants' predecessors in title written right-of-way agreements specifying a right-of-way 125 feet on each side of said survey center line. Under these agreements, therefore, the Highway Commission acquired a right-of-way across the property which was subsequently purchased by defendants, the center line of which was 27 feet east of and ran parallel with the western boundary line of such property and which right-of-way extended an additional 125 feet to the east of said center line. Thus, the previously acquired right-of-way covered a strip extending a total distance of 152 feet into the property subsequently purchased by defendants. Defendants contend, however, that such a claim of right-of-way was not valid as against them for the reason that the right-of-way agreements were never recorded in the office of the Register of Deeds of Guilford County but remained on file in the office of the Highway Commission in Raleigh. Because of this failure to record, defendants assert that the only right-of-way to which the plaintiff Commission had any lawful right as against them prior to the commencement of the present condemnation proceeding was a right-of-way for so much of their lands as was actually covered by the pavement of U.S. Highway No. 29 as it existed on the date defendants acquired their title.

G.S. § 47-27 contains the following: "No deed, agreement for right-of-way, or easement of any character shall be valid as against any creditor or purchaser for a valuable consideration but from the registration thereof within the county where the land affected thereby lies." This statute was amended by Section 1 of Chapter 1244 of the 1959 Session Laws, by adding a new paragraph as follows: "From and after July 1, 1959 the provisions of this section shall apply to require the State Highway Commission to record as herein provided any deeds of easement, or any other agreements granting or conveying an interest in land which are executed on or after July 1, 1959, in the same manner and to the same extent that individuals, firms or corporations are required to record such easements." Defendants contend that by the 1959 amendment the Legislature merely made explicit that which was already implicit in the statute and that prior to the 1959 amendment G.S. § 47-27 already applied to the Highway Commission in the same manner as it did to all other persons. The same question was raised by the parties in the case of North Carolina State Highway Commission v. Nuckles, 271 N.C. 1, 155 S.E.2d 772, which involved the same highway project with which we are here concerned, but the Supreme Court found it unnecessary to decide the question in that case. Similarly, we do not find it necessary to pass upon it in the present case.

Defendants acquired title to their property by a deed which in express terms was made subject to the right-of-way for U.S. Highway No. 29. This deed constituted the first link in their chain of title. Ordinary prudence should have prompted them to ascertain the exact extent of the right-of-way being then claimed by the Highway Commission. "If the facts disclosed in an instrument appearing in a purchaser's chain of title would naturally lead an honest and prudent person to make inquiry concerning the rights of others, these facts constituted notice of everything which such inquiry, pursued in good faith and with reasonable diligence, would have disclosed." Jones v. Warren, 274 N.C. 166, 173, 161 S.E.2d 467, 472. Inquiry of the Highway Commission would have disclosed the written right-of-way agreements which it had obtained from defendants' predecessors in title. These in turn would have clearly disclosed that the Highway Commission held instruments granting them an easement for highway purposes extending into the property being acquired by the defendants for a distance of 152 feet east of the center line of the pavement of U.S. Highway No. 29 as it then existed. Furthermore, the deed to defendants expressly referred to a specifically designated plat. "A map or plat referred to in a deed becomes a part of the deed and need not be registered." Kaperonis v. North Carolina State Highway Commission, 260 N.C. 587, 133 S.E.2d 464. Reference to this plat, a copy of which was attached as Exhibit #4 to the stipulations entered into by the parties, shows a line drawn across defendants' lot, which line is shown to be exactly 152 feet east of and parallel with the center line of the pavement of U.S. Highway No. 29. While there is no wording on the plat to designate specifically what this line represents, it is significant that it is drawn not only across the lot of the defendants but is extended north and south thereof, which would indicate that it relates to the highway rather than solely to the lot of the defendants. It is also significant that this line is shown on the plat in the exact location of the right-of-way which had previously been acquired by the Highway Commission by the written right-of-way agreements. Thus, by exercising ordinary diligence in examining those things of which they were put on notice by the express language of their own deed, defendants would have known at the time they acquired title the exact extent of the right-of-way then being asserted by the Highway Commission. We find no error in the trial court's conclusion that the lands of the defendants were owned by them at the commencement of the present condemnation proceeding subject to an easement of the North Carolina State Highway Commission for right-of-way extending 152 feet to the east of and running parallel to the center line of the then existing pavement of U.S. Highway No. 29, which is now the southbound lane of said highway.

Defendants also assign as error the trial court's conclusion that they have been provided reasonable access from their property to and from U.S. Highway No. 29 by way of the newly constructed service road and that therefore they are not entitled to be compensated for any loss of access to or from their property caused by construction of the new project. Decisions of our Supreme Court have established that while the abutting owner has a right of access to an existing highway, the manner in which that right may be exercised is not unlimited; to protect others who may be using the highway, the sovereign may restrict the right of entrance to reasonable and proper points; and 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. Highway Commission v. Nuckles, supra; State Highway Commission v. Raleigh Farmers Market, 263 N.C. 622, 139 S.E.2d 904; Moses v. State Highway Commission, 261 N.C. 316, 134 S.E.2d 664. The identical problem was presented to this Court in North Carolina State Highway Commission v. Rankin, 2 N.C.App. 452, 163 S.E.2d 302. As pointed out by Mallard, C. J., in that case, the main question involved concerns the reasonableness of the substitute access provided.

In the present case we agree with the trial court's conclusion that the service road constructed across defendants' property, by means of which persons using their property can exit north on U.S. Highway No. 29 by traveling approximately 560 feet and can exit south by traveling approximately 3,000 feet, and by means of which a traveler on the northbound lane of said highway can gain access to defendants' property by traveling only approximately 675 additional feet and a traveler from the southbound lane can gain access to defendants' property by traveling only approximately 4,500 additional feet, is reasonable access. These additional distances, when converted into the time required to traverse them when moving at presently customary and lawful rates of speed, amount to little more than minutes. The small inconvenience of the slight additional time required, is far more than offset by the additional safety provided the very persons entering or leaving defendants' own property. Provision of access by service roads requiring greater distances of travel were held reasonable in Moses v. Highway Commission, supra, and Highway Commission v. Rankin, supra, and we find these provisions reasonable in the present case.

The order appealed from is

Affirmed.

BROCK and BRITT, JJ., concur.