French v. State Highway Commission

159 S.E.2d 320 (1968) 273 N.C. 108

B. G. FRENCH
v.
STATE HIGHWAY COMMISSION.

No. 850.

Supreme Court of North Carolina.

February 28, 1968.

Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harrison Lewis, Asst. Atty. Gen. Andrew H. McDaniel and John Wishart Campbell, Associate Counsel, Lumberton, for defendant appellant.

Dickson McLean, Jr., Lumberton, William T. Joyner and W. T. Joyner, Jr., Raleigh, for plaintiff appellee.

LAKE, Justice.

The provisions of the Right of Way Agreement executed by the plaintiff and his wife to the defendant, which are quoted in the foregoing statement of facts, are exactly the same as the corresponding provisions in the agreement which was before us in Kenco Petroleum Marketers Inc. v. State Highway Commission, 269 N.C. 411, 152 S.E.2d 508.

There, we said:

"In determining whether the plaintiff had a property right which has been taken or destroyed by the resolution of the Highway Commission, we are not controlled by the provision in G.S. § 136-89.52 [enacted after the execution of the agreements both in that case and in the present case] * * *. It is also not necessary for us to determine upon this appeal what would have been the rights of the parties without such agreement. The agreement was made and the rights of the parties are fixed thereby * * *"

Here, as in that case, the Right of Way Agreement refers to the then proposed highway construction in accordance with "the survey and plans proposed for the same." The Right of Way Agreement was executed by the plaintiff "in consideration of the construction of said project." Those plans for the project showed service roads on each side of the through traffic lanes of the highway and also showed crossovers at the two points here in question, each of which crossovers ran from one service road to the other directly across the through traffic lanes at grade level. The highway was so constructed by the defendant and so used by the public, including the plaintiff, for a number of years.

It would be, indeed, a strained construction of the Right of Way Agreement to say that the parties by stipulating for a right of access "to the proposed highway to be constructed" at the two points in question meant only a right of access to service roads and did not contemplate the construction of and continuance of the crossovers shown upon the plans then in existence and to which the agreement referred. Had the Right of Way Agreement contained no reference whatever to the plaintiff's access to the highway at the points in question, he, along with the rest of the world, would now have the right to travel along the service roads from these points to their points of interchange with the through travel lanes of the highway. The following observations in Kenco Petroleum Marketers Inc. v. State Highway Commission, supra, are equally applicable to the present case:

"Since all the world has this right, such a construction of the agreement between this landowner and the Commission would be most unreasonable. Such construction would give to the landowner no greater right of access than he would have had if there had been omitted entirely from the agreement the words ``except at the following survey stations: 350+00.' [In the present case, 348+00 and 378+00.] These words in the agreement meant something. It was intended thereby to leave in or confer upon the landowner a right of access which the general public did not have, and which the landowner would not have had if the excepted phrase had been omitted from the agreement. It will be observed that the agreement in this case did not provide, as did the agreement in Abdalla v. State Highway Commission, 261 N.C. 114, 134 S.E.2d 81, ``grantors * * * shall have no right of access to the highway constructed on said right-of-way except by way of service roads and ramps built in connection with this project in the vicinity of survey stations 0+00.'" (Emphasis supplied.)

In that case, we said the plain meaning of the agreement was that the landowner surrendered whatever claims she might otherwise have had to a direct access to the highway at other points in exchange for a cash consideration and a reservation or grant of a right of direct access to the highway at the designated point.

The defendant's exception to the finding by the superior court that it was the intent of the Right of Way Agreement that the plaintiff have direct access and the right of crossover to and from and across the through traffic lanes of the highway at the designated points is without merit. This is the clear meaning of that agreement.

By virtue of this agreement, so interpreted, the plaintiff had an easement, which is a property right and which the defendant took from him by the removal of the crossovers and the construction of the fences between the service roads and the through traffic lanes of the highway. Kenco Petroleum Marketers Inc. v. State Highway Commission, supra; Williams v. North Carolina State Highway Commission, 252 N.C. 772, 114 S.E.2d 782. While the defendant, in the exercise of its power to regulate the flow of traffic upon the highway so as to promote safety and the free flow of traffic thereon, could take this property right from the plaintiff and terminate it, the defendant could not do so without the payment of compensation to the plaintiff for his property so taken. Kenco Petroleum Marketers Inc. v. State Highway Commission, supra.

Our decision in North Carolina State Highway Commission v. Nuckles, 271 N.C. 1, 155 S.E.2d 772, upon which the defendant relies, has no application to this case. There, we held that the separation of north and southbound traffic lanes so that the property of an adjoining landowner had direct access to one lane only did not deprive such landowner of a property right for which he was entitled to compensation. In the Nuckles case, there was no agreement between the landowner and the commission giving him access to all portions of the highway at a specified point.

Likewise, our statement in Kenco Petroleum Marketers Inc. v. State Highway Commission, supra, that a ramp is part of a highway does not support the defendant's contention in the present case that access to the service road is the access to the highway contemplated by the Right of Way Agreement executed by the plaintiff and his wife. In that case, the agreement, as here, stated that the landowner was to have access to the highway at a specified point, and the plan then in existence, to which the agreement related, showed the ramp at that point. Those plans did not show a crossover crossing the ramp and it would have been unreasonable to construe the agreement as giving the landowner the right to cross over the ramp and thus go on to the through traffic lanes beyond the ramp. Here, on the contrary, the plans to which the Right of Way Agreement refer, specifically showed a crossover from one service road to the other at each point designated and subsequently the commission constructed those crossovers and maintained them in use for several years. It is clear that the parties did not contract with reference to access to the service road only. The service road is part of the highway, but access to it only was not what the parties clearly intended when they executed and accepted the Right of Way Agreement.

We have carefully considered each of the defendant's assignments of error and find no merit therein.

Affirmed.

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