Guyton v. North Carolina Board of Transportation

226 S.E.2d 175 (1976) 30 N.C. App. 87

Dural GUYTON and wife Esther Sue Guyton
v.
NORTH CAROLINA BOARD OF TRANSPORTATION.

No. 7513SC905.

Court of Appeals of North Carolina.

July 7, 1976.

Frink, Foy & Gainey by A. H. Gainey, Jr. and Narley Cashwell, Southport, for plaintiffs-appellants.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Henry H. Burgwyn, Raleigh, for defendant-appellee.

PARKER, Judge.

Plaintiffs contend the trial court's denial of their motion for a temporary restraining order was error. They argue that the excavation and removal of the old roadway of N.C. Highway No. 133 would constitute a taking of their property which would not be for a public purpose and that injunctive relief is proper to keep a government agency from abusing its powers. We do not agree.

The owner of land which abuts a highway is recognized to have a special right of easement in the highway for access purposes, and this is a property right which cannot be taken from him without just compensation. Abdalla v. Highway Commission, 261 N.C. 114, 134 S.E.2d 81 (1964). Of course, any taking must be for a public purpose or use and must conform with the constitutional requirements of due process, but just what is a "public purpose" justifying the exercise of the power of eminent domain must rest on the individual facts of each case. Highway Commission v. Thornton, 271 N.C. 227, 156 S.E.2d 248 (1967).

The statutory authority for the Board's action in this case is provided in G.S. 136-54 which reads as follows:

"Subject to the provisions of G.S. 136-60 (not applicable as repealed in 1973) the Board of Transportation shall be authorized, when in its judgment the public good requires it, to change, alter, add to, or abandon and substitute new sections for, any portion of the State highway system, as now or hereafter, taken over, maintained and established: Provided, no road shall be changed, altered, or abandoned so as to disconnect county seats and principal towns."

Exercise of the Board's discretionary authority so conferred upon it by statute is not subject to judicial review, unless its action is so clearly unreasonable as to amount to oppressive and manifest abuse. Highway Commission v. Board of Education, 265 N.C. 35, 143 S.E.2d 87 (1965). Nothing in the record now before us indicates an oppressive and manifest abuse of the Board of Transportation's discretionary authority. Where there is a complete, full, and adequate remedy at law, the equitable remedy of injunction will not lie. The plaintiffs may resort to their legal remedy at law under G.S. 136-111 to recover just compensation for any taking of their property. See, Frink v. Board of Transportation, 27 N.C.App. 207, 218 S.E.2d 713 (1975).

The order appealed from is

Affirmed.

BROCK, C. J., and ARNOLD, J., concur.