Haymore v. North Carolina State Highway Commission

189 S.E.2d 611 (1972)

14 N.C. App. 691

Glenn R. HAYMORE and wife, Reva S. Haymore, and Joe C. Haymore and wife, Cleo B. Haymore v. NORTH CAROLINA STATE HIGHWAY COMMISSION.

No. 7217SC207.

Court of Appeals of North Carolina.

June 28, 1972.

Certiorari Denied August 31, 1972.

*612 *613 White, Crumpler & Pfefferkorn by James G. White, Winston-Salem, for plaintiff appellants.

Atty. Gen. Robert Morgan by Asst. Atty. Gen., H. A. Cole, Jr., for defendant appellee.

Certiorari Denied by Supreme Court August 31, 1972.

GRAHAM, Judge.

The principal question raised in this appeal is whether the court erred in determining that the service road now furnishes plaintiffs with reasonable access to Highway 52. We hold that there was no error.

"The question of what constitutes a taking of a landowner's right to access has been the subject of numerous decisions in this jurisdiction, all to the effect that while a substantial or unreasonable interference with an abutting landowner's access constitutes the taking of a property right, the restriction of his right of entrance to reasonable *614 and proper points so as to protect others who may be using the highway does not constitute a taking. Such reasonable restriction is within the police power of the sovereign and any resulting inconvenience is damnum absque injuria." State Highway Comm. v. Yarborough, 6 N.C.App. 294, 301, 170 S.E.2d 159, 164 and cases cited.

It has been held repeatedly in this State that a landowner is entitled to no compensation for the restriction of access where he is provided with a freely accessible service road connecting with the highway on which his property formerly abutted. North Carolina State Highway Commission v. Nuckles, 271 N.C. 1, 155 S.E.2d 772; Moses v. State Highway Commission, 261 N.C. 316, 134 S.E.2d 664; North Carolina State Highway Comm. v. Rankin, 2 N.C.App. 452, 163 S.E.2d 302.

Plaintiffs insist that even though they have been provided a fully accessible service road which runs the length of their property, their access to the highway has nevertheless been unreasonably diminished because of the substantial distance of travel now required to reach Highway 52. We answer this simply by noting that the distance here involved, and the inconvenience to plaintiffs, is no greater than that present in various cases in which the Supreme Court has held that the property owner was afforded reasonable access. See for example, North Carolina State Highway Commission v. Nuckles, supra; Moses v. State Highway Commission, supra.

Plaintiffs also contend they have been deprived of reasonable access because the service road does not connect directly with a ramp leading onto Highway 52, but connects with an existing road, Holly Springs Road, which in turn leads onto the interchange. We find this of little significance. There is a distance of only 600 feet from the point where the nearest ramp enters Holly Springs Road to the point where the service road enters Holly Springs Road. Sound engineering practice undoubtedly required that a reasonable distance separate the nearest ramp and the service road. Otherwise, traffic moving in a northerly direction along the ramp and onto the service road would be required to make an immediate 180 degree turn in order to enter the service road. This type of maneuver would be dangerous and inconvenient, if not altogether impossible.

A right-of-way agreement for the construction of a portion of Highway 52 was acquired from plaintiffs in 1953. Plaintiffs argue that since no abutters rights were conveyed by them in the agreement, they retained these rights. We agree. Had plaintiffs surrendered all right of access under the agreement, defendant would have been under no obligation to construct the service road or otherwise arrange for plaintiffs' access to Highway 52 when it was converted to a controlled access facility. The point is that while entire access may not be cut off, an abutting landowner is not entitled, as against the public, to access to his land at all points in the boundary between it and the highway. Barnes v. North Carolina State Highway Commission, 257 N.C. 507, 126 S.E.2d 732. When the State interferes with the access of a property owner the question is always whether reasonable means of ingress and egress remains or is provided. State Highway Comm. v. Yarborough, supra. This question has been resolved against plaintiffs by findings of fact which are supported by the evidence.

Plaintiffs point out that before Highway 52 was upgraded, defendant issued several permits for driveways to be constructed onto plaintiffs' property. Plaintiffs argue that these permits granted easements of entry which could not thereafter be taken without compensation.

The State Highway Commission has authority under G.S. § 136-18(5) to make rules, regulations and ordinances for the use of, and to police traffic on, the State highways. Pursuant to this authority, the Commission requires driveway permits for the purpose of assuring that a proposed *615 driveway will be constructed in a safe manner and so as not to endanger travel upon the highway. This is an exercise of the general police power, and the granting of the permit does not vest an irrevocable property right in the property owner.

It is true that compensation must be paid where under a right-of-way agreement the owner retains the right of access at a particular point and is subsequently refused access at that point. Kenco Petroleum Marketers, Inc. v. State Highway Commission, 269 N.C. 411, 152 S.E.2d 508; Kirkman v. State Highway Commission, 257 N.C. 428, 126 S.E.2d 107; Williams v. North Carolina State Highway Commission, 252 N.C. 772, 114 S.E.2d 782; Prestige Realty Co. v. State Highway Comm., 1 N.C.App. 82, 160 S.E.2d 83. In such instances, the right of continuing access at a particular point is a property right acknowledged by the State as a part of the consideration for the right-of-way agreement. The granting of an application for a driveway permit is not a contract. It is a regulatory action taken by the State for safety purposes and cannot be compared with a right-of-way agreement in which the property owner reserves access at a particular point.

Plaintiffs say that the court erred in failing to find that their property was permanently and temporarily damaged during construction. The parties stipulated that the project was constructed "entirely within the previously existing right of way belonging to the State Highway Commission.. . ." This stipulation supports the court's refusal to find that any permanent damages accrued to plaintiffs' property. There was testimony tending to indicate some minimal and temporary entry by defendant onto plaintiffs' property during construction. However, the court obviously rejected this testimony, which it was entitled to do.

Finally, plaintiffs assign as error the court's refusal to allow testimony tending to show that the volume of sales from businesses located on plaintiffs' property was greater in 1961 than in 1970. No evidence was tendered concerning sales in the intervening years. A loss of profits may be a proper item to be considered in determining whether a taking of property for eminent domain has diminished the value of the land remaining. Kirkman v. State Highway Commission, supra. The question of damages was not before the court here, however. The issue was whether there had been an actual taking. Therefore, whether a change in the access afforded plaintiffs to Highway 52 has caused a loss of profits was not relevant. Moreover, the evidence as tendered would have been inadmissible even if an issue of damages had been before the court. Plaintiffs sought to compare profits made seven years before the highway project was started with profits made after the project was completed. The remoteness in time of the comparison dates rendered the evidence of no probative value.

Affirmed.

MORRIS and VAUGHN, JJ., concur.