Chrysler Rlty. Corp. v. North Carolina St. Hwy. Com'n

190 S.E.2d 677 (1972)

CHRYSLER REALTY CORPORATION and Glover Motors, Inc. v. NORTH CAROLINA STATE HIGHWAY COMMISSION.

No. 7228SC550.

Court of Appeals of North Carolina.

August 23, 1972.

*678 H. Kenneth Lee and Herbert L. Hyde, Asheville, for plaintiff appellants.

Atty. Gen. Robert Morgan and Deputy Atty. Gen. R. Bruce White, Jr., and Asst. Atty. Gen. Guy A. Hamlin for defendant appellee.

HEDRICK, Judge.

Appellants contend the Court erred in "failing to conclude that plaintiffs' property abutted on West Haywood Street" and concluding as a matter of law "that the construction of the median strip dividing east-westbound lanes on Patton Avenue was a proper exercise of police power, and any damages resulting therefrom was not compensable". We do not agree.

The stipulations of the parties, found as facts by the trial judge, (Exhibit 1, a map depicting the roads and highways surrounding plaintiffs' property) clearly show that West Haywood Street abuts plaintiffs' property on the west, Clingman Avenue abuts the property on the east, and plaintiffs' property is abutted on the north by Patton Avenue between Clingman Avenue and West Haywood Street.

We are referred by plaintiffs to G.S. § 136-89.53, which in pertinent part provides:

"When an existing street or highway shall be designated as and included within a controlled-access facility the owners *679 of the land abutting such existing street or highway shall be entitled to compensation for the taking of or injury to, their easements of access." (our italics)

Citing Dr. T. C. Smith Co. v. North Carolina State Highway Comm., 279 N.C. 328, 182 S.E.2d 383 (1971), plaintiffs argue that the dead-ending of West Haywood Street as part of the project, which included the construction of the median strip dividing the lanes of traffic on Patton Avenue and the extension of Hilliard Street from Clingman Avenue to West Haywood Street was such a taking or injury of their easement of access as entitles them to compensation within the meaning of G.S. § 136-89.53. It seems clear that none of the streets abutting plaintiffs' property was or is a "controlled access" facility. The facts in Dr. T. C. Smith Co. v. North Carolina State Highway Comm., supra, are clearly distinguishable. There the plaintiffs owned a 13-acre tract of land abutting North Carolina Highway 191. Prior to the construction of the highway project, plaintiffs had an abutter's full right of access to the highway. The project complained of made Highway 191 a controlled access facility and completely fenced off all of plaintiffs' immediate access to the highway. After the construction of the project,

". . . 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 . . . ." Dr. T. C. Smith Co. v. North Carolina State Highway Comm., supra.

The uncontroverted facts in the present case show that after the dead-ending of West Haywood Street at its intersection with Patton Avenue and the construction of the median, dividing lanes of traffic on Patton Avenue, the plaintiffs retained full right of access to all streets and highways abutting their property. In State Highway Comm. v. Yarborough, 6 N.C.App. 294, 170 S.E.2d 159, this Court speaking to this matter said:

"(W)hile 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 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."

The construction of a median strip so as to limit landowner's ingress and egress to lanes for southbound travel when he formerly had direct access to both the north and southbound lanes has been held to be a valid traffic regulation adopted by the Highway Commission in the exercise of the police power vested in it by statutes. Barnes v. North Carolina State Highway Commission, 257 N.C. 507, 126 S.E.2d 732 (1962). When a road or street is closed or abandoned so as to leave the landowner's property on a cul-de-sac and increase the distance one must travel to reach points in one direction, such inconvenience is not compensable. Wofford v. North Carolina State Highway Commission, 263 N.C. 677, 140 S.E.2d 376 (1965), cert. denied, 382 U.S. 822, 86 S. Ct. 50, 15 L. Ed. 2d 67; Snow v. North Carolina State Highway Commission, 262 N.C. 169, 136 S.E.2d 678 (1964). Thus, since plaintiffs retain full right of access to and from all abutting streets and highways, we agree with the trial judge's ruling that the construction of the median strip on Patton Avenue and the dead-ending of Haywood Street was a legitimate and proper exercise of the police power of the State not entitling the plaintiffs to damages.

For the reasons stated we hold the facts found support the conclusions of law which in turn support the judgment entered.

Affirmed.

BROCK and MORRIS, JJ., concur.