Dr. T. C. Smith Co. v. North Carolina State Highway Commission , 279 N.C. 328 ( 1971 )

182 S.E.2d 383 (1971) 279 N.C. 328

DR. T. C. SMITH COMPANY, Inc., a North Carolina Corporation
v.
NORTH CAROLINA STATE HIGHWAY COMMISSION.

No. 107.

Supreme Court of North Carolina.

July 30, 1971.

Bennett, Kelly & Long by Robert B. Long, Jr., Asheville, for plaintiff appellee.

Atty. Gen. Robert Morgan, Deputy Atty. Gen. R. Bruce White, and Asst. Atty. Gen. Andrew McDaniel, for defendant appellant.

BOBBITT, Chief Justice.

"(T)he owner of land abutting a highway has a right beyond that which is enjoyed by the general public, a special right of easement in the highway for access purposes. This right of access is an easement appurtenant which cannot be damaged or taken from him without compensation. Abdalla v. State Highway Commission, 261 N.C. 114, 134 S.E.2d 81; Hedrick v. Graham, 245 N.C. 249, 96 S.E.2d 129. This easement consists of the right of access to the particular highway upon which the land abuts." Snow v. North Carolina State Highway Commission, 262 N.C. 169, 173, 136 S.E.2d 678, 682 (1964). Accord, State Highway Commission v. Raleigh Farmers Market, 263 N.C. 622, 624, 139 S. E.2d 904, 906 (1965); Wofford v. North Carolina State Highway Commission, 263 N.C. 677, 681, 140 S.E.2d 376, 380 (1965); North Carolina State Highway Commission v. Nuckles, 271 N.C. 1, 19, 155 S.E.2d 772, 787 (1967).

If afforded reasonable access to the highway on which his property abuts, the owner is not entitled to compensation merely because of circuity of travel to reach a particular destination. Snow v. North Carolina State Highway Commission, supra; State Highway Commission v. Raleigh Farmers Market, supra; Barnes v. North Carolina State Highway Commission, 257 N.C. 507, 126 S.E.2d 732 (1962); Moses v. State Highway Commission, 261 N.C. 316, 134 S.E.2d 664 (1964); Wofford v. North Carolina State Highway Commission, supra; North Carolina State Highway Commission v. Nuckles, supra. However, defendant completely cut off and totally denied plaintiff's abutter's rights of direct access to Hanover Street by including it within controlled-access Highway 191.

Under G.S. § 136-89.53, when an existing street is included within a "controlled-access facility," the owner of land abutting on such street "shall be entitled to compensation for the taking of or injury to their easements of access." In consequence of the denial of plaintiff's abutter's rights of access and the blocking and dead-ending of Wilmington Street at its intersection with Highway 191, the only available access to and from any portion of plaintiff's property and "controlled-access" Highway 191 is by circuitous travel over residential streets, namely, Wilmington Street, Southwick Lane, Seven Oaks Drive, and Westwood Place.

In the judgment it tendered (which the court declined), defendant conceded, as it does now, that plaintiff is entitled to compensation for injury to the portion of its property between the "bank" and "controlled-access" Highway 191. It denied then, as it does now, that plaintiff is entitled to compensation for injury to the warehouse-office-parking area portion of its property. It contends this area should be treated as a separate tract to which plaintiff has reasonable access notwithstanding the blocking and dead-ending of Wilmington Street.

It may be conceded, arguendo, there would be merit in defendant's contention if the only property owned by plaintiff were the portion east of the "bank"—where the warehouse-office-parking area is situated—which does not abut Hanover Street. In fact, this portion is an undefined part of a 13-acre tract which abuts Hanover Street (now "controlled-access" Highway 191) along a frontage of 711 feet.

Although plaintiff used Wilmington Street for access to Hanover Street from its warehouse-office-parking area, the portion of its property which abutted Hanover Street was available as a means of access thereto in the event access thereto by Wilmington Street was denied. The availability of heavy earth-moving equipment, and present methods and practices for grading and constructing ramps, gave assurance that plaintiff could provide access from the warehouse-office-parking area portion of its property to and across the portion of its property which abutted Hanover Street. Difficulties encountered and expense required to provide such access are factors for consideration by the jury in determining what compensation plaintiff is entitled to recover for injury done to its entire tract by the denial of its abutter's rights of access to Hanover Street.

Defendant relies largely on Barnes v. North Carolina State Highway Commission, 250 N.C. 378, 109 S.E.2d 219 (1959), and on State Highway Commission v. Raleigh Farmers Market, supra. These cases are factually distinguishable.

In Barnes, the area comprising Tract No. 2 (24.22 acres) was east of Knollwood Street and north of the Easement (a 40-foot private easement previously conveyed) and the area comprising Tract No. 3 (6.72 acres) was east of Knollwood Street and south of the Easement. The right-of-way of the "controlled-access" highway (Winston-Salem East-West Expressway, I-40) included a portion of Tract No. 2 but no part of Tract No. 3 or the Easement. In accordance with the Highway Commission's contention, the decision of this Court was that Tract No. 2 and Tract No. 3 were to be considered as a unit in the assessment of damages and offsetting benefits. As noted by defendant, the opinion states: "There is no single rule or principle established for determining the unity of lands for the purpose of awarding damages or off-setting benefits in eminent domain cases." The opinion includes a comprehensive review of general principles pertinent to such determination. This excerpt from the opinion is pertinent: "The law will not permit a condemnor or a condemnee to ``pick and choose' segments of a tract of land, logically to be considered as a unit, so as to include parts favorable to his claim or exclude parts unfavorable." 250 N.C. at 386, 109 S.E.2d at 226.

In State Highway Commission v. Raleigh Farmers Market, supra, the action was instituted by the Highway Commission to acquire property rights necessary for the construction of a portion of the Belt Line around Raleigh, a controlled-access highway. The north line of Farmers' 79-acre tract abutted Race Track Road which provided access to U.S. 1-A. The inclusion of Race Track Road within the controlled-access highway denied Farmers' access thereto and access to U.S. 1-A from the northern portion of its property.

The northern and southern portions of Farmers' property were separated by a spur track extending from the property of the Sunshine Biscuit Company to the right-of-way of the Seaboard Air Line Railroad. This Court held Farmers was entitled to compensation for the injury to the northern portion of its property but not to the southern portion thereof. A consideration of the factual situation dispels any impression that the decision supports defendant's contention in the present case. A general description of the 79-acre tract, referred to as having the appearance of a reversed "L," is stated below.

The 79-acre tract was bounded on the east by the right-of-way of the Seaboard Air Line Railroad; on the south by Crabtree Creek; on the west, for a distance of 1383.21 feet from its southwest corner to the property of Sunshine Biscuit Company, by U.S. 1-A; thence east, with the southern line of the Sunshine property, 816.36 feet; thence north, with the east lines of the properties of Sunshine and other owners, to the Race Track Road. No part of the 79-acre tract north of the southern line of the Sunshine property abutted U.S. 1-A. The only available access from the northern portion of Farmers' property to U.S. 1-A was by way of the southern portion of its property. Such access would require the construction of a road 3000 feet or more in length. Obviously, the southern portion of Farmers' property was not injured by the denial of access to U.S. 1-A over former Race Track Road for the simple reason that the southern portion had direct abutter's access to U.S. 1-A along a frontage of 1383.21 feet.

Although each has been considered, we deem it unnecessary to discuss defendant's exceptions to portions of Judge Ervin's findings of fact. Suffice to say, the judgment is supported by the stipulated facts, findings of fact based on uncontradicted evidence and findings of fact to which no exception was noted.

For the reasons stated, the judgment entered by Judge Ervin is affirmed.

Affirmed.