Hedrick v. Graham

96 S.E.2d 129 (1957) 245 N.C. 249

W. A. HEDRICK
v.
A. H. GRAHAM, J. Emmett Winslow, H. Maynard Hicks, C. Heide Trask, M. E. Robinson, Donnie A. Sorrell, C. A. Hasty, J. Van Lindley, Forrest Lockey, James A. Gray, Jr., James A. Hardison, W. Ralph Winkler, June F. Scarborough, J. F. Snipes, Harry E. Buchanan.

No. 377.

Supreme Court of North Carolina.

January 11, 1957.

Craige & Craige, Clarence Khuttz, Lewis P. Hamlin, Jr., Salisbury, and Walser & Erinkley, Lexington, for plaintiff, appellant.

R. Brookes Peters, Raleigh, E. W. Hooper, Thomasville, and Womble, Carlyle, Sandridge & Rice, Winston-Salem, for defendants, appellees.

PARKER, Justice.

It is familiar learning that a demurrer admits the truth of factual averments well stated and such relevant inferences as may be deduced therefrom, but it does not admit any legal inferences or conclusions of law asserted by the pleader, and that we are required to construe the pleading challenged by a demurrer liberally with a view to substantial justice between the parties and to make every reasonable intendment in favor of the pleader. G.S. § 1-151; McKinley v. Hinnant, 242 N.C. 245, 87 S.E.2d 568; McKinney v. City of High Point, 237 N.C. 66, 74 S.E.2d 440.

The complaint alleges, "the State Highway and Public Works Commission does not own in fee any of the lands now used by said U. S. Highway 29, 70 and 52 which abut the property of the plaintiff, or which the State Highway and Public Works Commission has attempted to appropriate for limited-access purpose." The complaint further alleges that the defendants purporting to act under their authority, and by virtue of their office as the State Highway and Public Works Commission, have designated a portion of said highway where it crosses plaintiff's land as a limited-access highway, thereby attempting to extinguish plaintiff's rights as an abutter by limiting his access to the highway, and that they have erected signs along the highway announcing "this area appropriated for highway purposes to be limited-access." It seems plain that the acts complained of were the acts of the State Highway and Public Works Commission as an agency or instrumentality of the State.

In Annotation 43 A.L.R.2d at page 1073, note 1, it is stated: "A limited-access highway may be defined as a roadway designed particularly for the movement of through traffic, upon which cross traffic has been eliminated or severely curtailed, to which entrances and exits are strictly controlled, and in which abutting landowners have no easement or right of access different from that enjoyed by the general public. Such highways are sometimes called ``freeways,' ``thruways,' ``express ways,' ``parkways,' or ``belt-lines.'"

The Federal-Aid Highway Act of 1956 in Sec. 108(a), 23 U.S.C.A. § 158(a) states: "It is hereby declared to be essential to the national interest to provide for the early completion of the ``National System of Interstate Highways' * * *. It is the intent of the Congress that the Interstate System be completed as nearly as practicable over a thirteen-year period and that the entire System in all the States be brought to simultaneous completion. Because of its primary importance to the national defense, the name of such system is hereby changed to the ``National System of Interstate and Defense Highways.'" Sec. 108(i) provides: "The geometric and construction standards to be adopted for the Interstate System shall be those approved by the Secretary of Commerce in cooperation with the State highway departments. Such standards shall be adequate to accommodate the types and volumes of traffic forecast for the year 1975." Sec. 112 of this Act, 23 U.S.C.A. § 163 provides: "All agreements between the Secretary of Commerce and the State highway department for the construction of projects on the Interstate System shall contain a clause providing that the State will not add any points of access to, or exit from, the project in addition to those approved by the Secretary in the plans for such project, without the prior approval of the Secretary." This Act provides for the apportionment of federal funds among the States for the purposes of the Act, and in Sec. 108(h) provides for construction by the States of such highways in advance of apportionment of federal funds.

The complaint alleges that the "public highway designated as U. S. Highway 29, 70 and 52, which crosses" plaintiff's "land is presently, and for sometime past has been, in the course of reconstruction under the control and direction of the State Highway and Public Works Commission of North Carolina, of which the defendants are members, such project being sometimes designated as No. 6734." G.S. § 136-18(1) provides "the said State Highway and Public Works Commission shall have such powers as are necessary to comply fully with the provisions of the present or future federal aid acts." It would seem a fair inference from the allegations of the complaint set forth above in this paragraph that the reconstruction of the section of Highway 29, 70 and 52 by the State Highway and Public Works Commission was, and is, being done in compliance with the requirements of Project No. 6734, and that it is being reconstructed to meet the standards and requirements of the 1956 Federal-Aid Highway Act, so that it can be incorporated into the National System of Interstate and Defense Highways.

Motor car transportation is a basic need of modern society. It is of vital importance in the social and economic life of our people. The development of high speed motor car transportation has brought more and more traffic congestion and an ever mounting grisly toll of automobile accidents. Forty thousand deaths, a million and one-half injuries, and two billion dollars worth of property damage each year (Levin, "Public Control of Highway Access and Roadside Development 3"—Public Roads Administration, 1943) demonstrate the gravity of the problem confronting public highway authorities.

It is said in Annotation 43 A.L.R.2d at page 1073, note 2: "According to an article in 3 Stanford L.Rev. 298 (citing as authorities Levin, ``Public Control of Highway Access and Roadside Development 3' and Bulletin No. 67 of the American Road Builders' Association, entitled ``Highway Economics and Design Principles') less than 15 per cent of the mishaps on ordinary roads will occur on an equal mileage of limited-access highways, and, while limited-access urban highways can easily handle 1,500 vehicles per lane per hour, only 400 vehicles per lane per hour can be carried on ordinary urban streets."

This Court said in Sanders v. Town of Smithfield, 221 N.C. 166, 19 S.E.2d 630, 633: "It is generally held that the owner of abutting property has a right in the street beyond that which is enjoyed by the general public, or by himself as a member of the public, and different in kind, since egress from and ingress to his own property is a necessity peculiar to himself. Colvin v. Tallassee Power Co., 199 N.C. 353, 154 S.E. 678; Hiatt v. [City of] Greensboro, 201 N.C. 515, 522, 160 S.E. 748; Davis v. Alexander, 202 N.C. 130, 162 S.E. 372; Glenn v. Board of Education, 210 N.C. 525, 187 S.E. 781; Henderson v. [City of] Lexington, 132 Ky. 390, 111 S.W. 318, 22 L.R.A.,N.S., 20; 29 C.J.S., Eminent Domain, § 105, p. 910. The right is in the nature of an easement appurtenant to the property, and abridgement or destruction thereof by vacating or closing the street, resulting in depreciation of the value of the abutting property, may give rise to special damages compensable at law. Brakken v. Minneapolis & St. L. Ry. Co., 29 Minn. 41, 11 N.W. 124; also cases cited supra. Beyond acceptance of this fundamental principle, authorities differ as to practically every other phase of the subject under discussion. However, following the line of authorities considered commendable and controlling, it is settled law in this state that under such circumstances the interference with the easement, which is itself property, is considered protanto, a ``taking' of the property for which compensation must be allowed, rather than a tortious interference with the right. Hiatt v. [City of] Greensboro, supra; Phillips v. Postal Telegraph [Cable] Co., 130 N.C. 513, 41 S.E. 1022; Stamey v. [Town of] Burnsville, 189 N.C. 39, 126 S.E. 103."

The most important private right involved in limited-access highway cases is the right of access to and from the highway by an abutting landowner. The basic problem in every case involving destruction or impairment of the right of access is to reconcile the conflicting interests—i. e. private versus public rights. The time has come when ever increasing consideration must be given to the promotion of public safety on the highways and to the concept of roads whose purpose is not land service but traffic service. The term, a land service road, has been used to describe an ordinary highway intended primarily to enable abutting landowners to have access to the outside world as distinguished from the limited-access road designed primarily to move through traffic. Annotation 43 A.L. R.2d at page 1074, note 7. Two methods are available for curtailing the right of access—the right of eminent domain and the police power. Eminent domain is the power of the sovereign to take or damage private property for a public purpose on payment of just compensation. Town of Mount Olive v. Cowan, 235 N.C. 259, 69 S.E.2d 525. "As was said by Mr. Justice Brown, in Camfield v. United States, 167 U.S. 518, 524, 17 S. Ct. 864, 42 L. Ed. 260, 262, citing Rideout v. Knox, 148 Mass. 368, 19 N.E. 390, 2 L.R.A. 81, 12 Am. St. Rep. 560: ``The police power is not subject to any definite limitations, but is coextensive with the necessities of the case and the safeguard of the public interests.'" Tanner v. Little, 240 U.S. 369, 36 S. Ct. 379, 385, 60 L. Ed. 691. The police power is a necessary attribute of sovereignty. Brewer v. Valk, 204 N.C. 186, 167 S.E. 638, 87 A.L. R. 237. The construction of limited-access highways is bound to cause a dislocation of rights. Justice demands that these dislocations be adjusted in a way that will be fair to both property owners and the public.

In State of Georgia v. City of Chattanooga, 264 U.S. 472, 44 S. Ct. 369, 370, 68 L. Ed. 796, the Court said: "The power of eminent domain is an attribute of sovereignty, and inheres in every independent state. [Citing authorities.] The taking of private property for public use upon just compensation is so often necessary for the proper performance of governmental functions that the power is deemed to be essential to the life of the state. It cannot be surrendered, and, if attempted to be contracted away, it may be resumed at will. [Citing authorities.] It is superior to property rights (Kohl v. United States, 91 U.S. 367, 371, 23 L. Ed. 449 [451]), and extends to all property within the jurisdiction of the state * * *."

"This power (eminent domain) existed in each of the original thirteen states immediately on the assumption of independence." 18 Am.Jur., Eminent Domain, sec. 7.

Under our division of governmental power into three branches, executive, legislative and judicial, the right to authorize the exercise of the power of eminent domain, and the mode of the exercise thereof, is wholly legislative. Little v. Loup River Public Power District, 150 Neb. 864, 36 N.W.2d 261, 7 A.L.R. 2d 355; Paine v. Savage, 126 Me. 121, 136 A. 664, 51 A.L.R. 1194; 18 Am.Jur., Eminent Domain, sec. 9, p. 637, sec. 308, p. 954. However, as both the Federal and our State Constitutions protect all persons from being deprived of their property for public use without the payment of just compensation and a reasonable notice and a reasonable opportunity to be heard, proceedings to condemn property must not violate these guaranties. Dohany v. Rogers, 281 U.S. 362, 50 S. Ct. 299, 74 L. Ed. 904.

There seems to be no doubt that the General Assembly of North Carolina can authorize the State, or a governmental agency or instrumentality of the State, to exercise the power of eminent domain to condemn or to severely curtail an abutting landowner's right of access to a public highway adjacent to his property for the construction or reconstruction of a limitedaccess highway upon the payment of just compensation for the destruction or impairment of his right, which is in the nature of an easement appurtenant to his property, and upon giving him a reasonable notice and a reasonable opportunity to be heard. Department of Public Works & Buildings v. Lanter, 413 Ill. 581, 110 N.E.2d 179; Petition of Burnquist, 220 Minn. 48, 19 N.W.2d 394; Opinion of the Justices, 99 N.H. 505, 105 A.2d 924; State Roads Comm. v. Franklin, 201 Md. 549, 95 A.2d 99; People v. Thomas, 108 Cal. App. 2d 832, 239 P.2d 914; State ex rel. State Highway Comm. v. James, 356 Mo. 1161, 205 S.W.2d 534; Neuweiler v. Kauer, Ohio Com.P1.1951, 107 N.E.2d 779; Annotation 43 A.L.R. at page 1072 et seq.; Liddick v. City of Council Bluffs, 232 Iowa 197, 5 N.W.2d 361; 29 C.J.S., Eminent Domain, §§ 105 and 122; 18 Am.Jur., Eminent Domain, secs. 183 and 185; Restatement, Property, Servitudes, secs. 450, 453, 455, 456, 497, 507, 508. See: 3 Stanford Law Review, pp. 298 et seq. "Freeways and Rights of Abutting Owners"; Washington Law Review, Vol. 27, pp. Ill et seq. "The Limited-Access Highway."

In 29 C.J.S., Eminent Domain, § 105, it is written: "An easement is an interest in land for which the owner is entitled to compensation, as much so as if the land to which the easement is appurtenant were taken or injured. Thus the owner of land abutting on a street or highway has a private right in such street or highway, distinct from that of the public, which cannot be taken nor materially interfered with without just compensation, and this is so, although another owns the fee in the highway." In support of the text many cases are cited, among them four of our own.

In Petition of Burnquist, supra, it was held that easements of access on a highway which had been designated as a freeway were property rights which could be taken under the power of eminent domain upon the payment of proper compensation. The Court held that the delegation to the highway commissioner of the power to acquire "land" and the necessary "right of way" for highway purposes and for the proper and safe maintenance thereof included the right to condemn rights of access, there being no necessity for special legislation specifically providing for the condemnation of such easements.

Opinion of the Justices, supra, sustained the constitutionality of a statute providing that when an existing highway was converted to a limited-access highway, preexisting commercial facilities should be permitted to retain their right of access to the highway, while such rights as to other property should be condemned.

In Department of Public Works & Buildings v. Lanter, supra, the Illinois Supreme Court rejected the contention that the statute conferred no authority to condemn rights of access alone, where there was no actual taking of any land.

It is to be noted that the easement of access extinguished, or sought to be extinguished, here lies completely within the definite limits of the right of way of Highway 29, 70 and 52. In this respect the case here is distinct from those cases which seek to extinguish easements outside of the highway limitations, such as those involving billboards, snow fences and the like, and cases which relate to such outside easements like Preston v. City of Newton, 213 Mass. 483, 100 N.E. 641, and Doon v. Inhabitants of Natick, 171 Mass. 228, 50 N.E. 616, have no application to the instant case.

The General Assembly of North Carolina has vested the State Highway and Public Works Commission, an agency or instrumentality of the State, with the following authority and powers:

G.S. § 136-18(b) vests the State Highway and Public Works Commission with the power "to acquire by gift, purchase, or otherwise, any road or highway, or tract of land or other property whatsoever that may be necessary for a State highway system."

G.S. § 136-19 vests the State Highway and Public Works Commission with the power to condemn such private property "as it may deem necessary and suitable for road construction, maintenance, and repair, and the necessary approaches and ways through, and a sufficient amount of land surrounding and adjacent thereto, as it may determine to enable it to properly prosecute the work." This Court said in Proctor v. State Highway and Public Works Commission, 230 N.C. 687, 55 S.E.2d 479, 481: "When land is appropriated under this power of eminent domain for the right of way for a road, the general public acquires an easement only in the land so taken, and the fee to the property remains in the landowner, who may subject the land to any use which is not inconsistent with its use for the purpose for which it is taken."

G.S. § 136-18(e) vests the State Highway and Public Works Commission with the power "to make rules, regulations and ordinances for the use of, and to police traffic on, the State highways * * *."

G.S. § 136-1 states in part: "The intent and purpose of this section is that there shall be maintained and developed a Statewide highway system commensurate with the needs of the State as a whole and not to sacrifice the general State-wide interest to the purely local desires of any division."

Plaintiff states in his brief, "the Legislature has the plenary power not only to grant or withhold the right to exercise the power of eminent domain, but also to define the quantum of interest or estate which may be acquired, whether an easement or the fee or some estate intermediate these two." However, plaintiff contends that the powers of eminent domain granted to the State Highway and Public Works Commission do not include the power to condemn plaintiff's right of access to U. S. Highway 29, 70 and 52, and the General Assembly had no intent to grant such power, because a limited-access highway "was inconceivable at the time of the enactment of the statutes" vesting such Commission with the power of eminent domain, and because such lack of intent is further shown by the fact that at the 1951 Session of the General Assembly the House of Representatives passed a bill to establish limitedaccess highways and to acquire lands therefor (House Journal 1951, pp. 927, 944), and this bill was reported unfavorably by the Senate Committee on Public Roads (Senate Journal, p. 653) and was not passed by the Senate. The plaintiff contends that the 1951 General Assembly refused to grant the State Highway and Public Works Commission authority to establish limited-access roads, though at the same session it granted such authority to Municipal Corporations operating" Toll Roads, G.S. § 136-89.6(j) and to the North Carolina Turnpike Authority, G.S. § 136-89.16(j).

This Court said in In re Barnes, 212 N.C. 735, 194 S.E. 499, 501: "``Where a statute is expressed in general terms and in words of the present tense it will as a general rule be construed to apply not only to things and conditions existing at its passage, but will also be given a prospective interpretation, by which it will apply to such as come into existence thereafter.' 59 C.J. 1105."

In Cain v. Bowlby, 10 Cir., 114 F.2d 519, 522, certiorari denied 311 U.S. 710, 61 S. Ct. 319, 85 L. Ed. 462, it is said: "And it is a general rule in the construction of statutes that legislative enactments in general and comprehensive terms, and prospective in operation, apply to persons, subjects and businesses within their general purview and scope, though coming into existence after their passage, where the language fairly includes them." Abundant authority is cited in support.

The words of a statute must be taken in the sense in which they were understood at the time when the statute was enacted. United States v. Stewart, 311 U.S. 60, 61 S. Ct. 102, 85 L. Ed. 40; Summer v. State Highway Comm., 143 S.C. 196, 141 S.E. 366; 50 Am.Jur., Statutes, p. 224.

In 50 Am.Jur., Statutes, p. 225, it is written: "On the other hand, the fact that a situation is new, or that a particular thing was not in existence, or was not invented, at the time of the enactment of a law, does not preclude the application of the law thereto. The language of a statute may be so broad, and its object so general, as to reach conditions not coming into existence until a long time after its enactment."

The power and authority vested in the State Highway and Public Works Commission, by virtue of the statutes enacted by the General Assembly, "to acquire by gift, purchase, or otherwise, any road or highway, or tract of land or other property whatsoever that may be necessary for a State highway system," to condemn private property "as it may deem necessary and suitable for road construction," "to make rules, regulations and ordinances for the use of, and to police traffic on, the State highways," and to have "such powers as are necessary to comply fully with the provisions of the present or future federal aid acts," are expressed in language broad and extensive and general and comprehensive enough and the object so general and prospective in operation as to authorize the Commission to exercise the power of eminent domain to condemn or severely curtail an abutting landowner's right of access to a State public highway adjacent to his property for the construction or reconstruction, maintenance and repair, of a limited-access highway upon the payment of just compensation, and we so hold. We are fortified in our position by the language of the General Assembly set forth in G.S. § 136-1: "The intent and purpose of this section is that there shall be maintained and developed a State-wide highway system commensurate with the needs of the State as a whole."

The failure of the 1951 Session of the General Assembly to enact into law a bill introduced to provide for limited-access roads by the Commission does not change our opinion. The statutes we have set forth above conferring the power of eminent domain upon the Commission are not ambiguous or of doubtful meaning, but are so clear and plain, so general and comprehensive in nature and the object so general and prospective in operation that there can be no reasonable doubt as to their meaning as we have held above. Perhaps, the Senate thought that the Commission had the power under existing statutes to construct limited-access roads, and that was the reason it declined to pass the House Bill. Certainly, the 1951 General Assembly was not opposed to limitedaccess roads as shown by the enactment of G.S. § 136-89.6(j) and G.S. § 136-89.16(j). The 1951 rejected bill as set forth in appellant's brief provided that in connection with a limited-access highway the highway authorities might, in their discretion, acquire an entire lot, block, or tract of land, if by so doing, the interests of the public will be best served, even though said entire lot, block, or tract is not immediately needed for the right of way proper. That provision may have caused its rejection.

But passing on from speculation as to why the 1951 Bill was rejected, this Court said in City of Raleigh v. Mechanics & Farmers Bank, 223 N.C. 286, 26 S.E.2d 573, 575: "As a rule in determining the proper construction to be given legislative enactments, the Courts are not controlled by what the Legislature itself apparently thought the proper interpretation should be, but the language employed, taken in connection with the context, the subject matter and the purpose in view must be considered in order to ascertain the legislative intent, which, after all, is the primary purpose of all judicial construction."

In United States v. Missouri Pacific R. Co., 278 U.S. 269, 49 S. Ct. 133, 136, 73 L. Ed. 322, 377, the Court said: "Where the language of an enactment is clear, and construction according to its terms does not lead to absurd or impracticable consequences, the words employed are to be taken as the final expression of the meaning intended. And in such cases legislative history may not be used to support a construction that adds to or takes from the significance of the words employed."

It is also a well known fact that some 170 miles of limited-access roads constructed by the State Highway and Public Works Commission are complete and open to traffic, and that the 1955 General Assembly did nothing to stop such work on the Commission's part. Such acquiescence in the practical interpretation by the Commission of the statutes authorizing it to exercise the power of eminent domain in constructing limited-access roads and taking an abutting landowner's right of access thereto is entitled to some weight. State v. Emery, 224 N. C. 581, 31 S.E.2d 858, 157 A.L.R. 441; Hannah v. Board of Commissioners, 176 N.C. 395, 97 S.E. 160.

The complaint does not state facts sufficient to constitute a cause of action for injunctive relief against the defendants, nor against the State Highway and Public Works Commission, if it had been sued, and the demurrer was properly sustained.

For any damage plaintiff has sustained, he has an adequate remedy at law by virtue of Chapters 136 and 40 of G.S.

It is not necessary for us to pass upon the other ground of the demurrer.

Affirmed.

JOHNSON, J., not sitting.

RODMAN, J., took no part in the consideration or decision of this case.