Frink v. NORTH CAROLINA BD. OF TRANSPORTATION

218 S.E.2d 713 (1975)

27 N.C. App. 207

S. B. FRINK and Davis C. Herring v. NORTH CAROLINA BOARD OF TRANSPORTATION.

No. 7513SC336.

Court of Appeals of North Carolina.

October 15, 1975.

*714 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Eugene A. Smith, Raleigh, for the State.

Frink, Foy & Gainey by Henry G. Foy, Southport, for defendant-appellant.

MARTIN, Judge.

"Ordinarily, an injunction will not be granted where there is a full, adequate and complete remedy at law, which is as practical and efficient as is the equitable remedy." Durham v. Public Service Co., 257 N.C. 546, 126 S.E.2d 315 (1962). However, equity will exercise its preventive powers by restraining the irremedial injury or threatened injury to or destruction of property rights. Clinton v. Ross, 226 N.C. 682, 40 S.E.2d 593 (1946). An injury is irreparable, within the law of injunctions, where it is of a "peculiar nature, so that compensation in money cannot atone for it." Gause v. Perkins, 56 N.C. 177 (1857).

It is generally recognized that the owner of land abutting a highway has a right beyond that which is enjoyed by the general public. This right is a special right of easement in the public road for access purposes, and is a property right which cannot be damaged or taken from him without due compensation. Abdalla v. Highway Comm., 261 N.C. 114, 134 S.E.2d 81 (1964). G.S. 136-111 provides that any person whose land or compensable interest therein has been appropriated by the Highway Commission (now Board of Transportation) without the filing of a complaint and declaration of taking may within twenty-four (24) months of date of said taking bring an action in the superior court to recover damages for the taking. Ledford v. Highway Comm., 279 N.C. 188, 181 S.E.2d 466 (1971).

In the case at bar, plaintiffs have not made a sufficient showing of substantial or irreparable harm which would warrant equitable relief. They are not claiming that the right of defendant to condemn or take is at issue, nor claiming a taking which is unnecessary or excessive, nor claiming an attempt to take property not subject to condemnation, nor claiming an unauthorized use of public property or a substantial departure from legislative limitations or directions. Rather, plaintiffs are asking for equitable relief in the form of an injunction against an agency of the State to prevent the removal of the remaining portion of the old causeway which is plaintiffs only means of vehicular ingress and egress to their property.

In the act establishing the State Highway Commission (Now Board of Transportation), the General Assembly has expressly granted to it the power of eminent domain. G.S. 136-18, State Hwy. Comm'n v. *715 Matthis, 2 N.C.App. 233, 163 S.E.2d 35 (1968).

"The power of eminent domain, that is the right to take private property for public use, is inherent in sovereignty. Our Constitution, Art. I, Sec. 17, requires payment of fair compensation for the property so taken. This is the only limitation imposed on sovereignty with respect to taking. The taking must, of course, be for a public purpose, but the sovereign determines the nature and extent of the property required for that purpose." Morganton v. Hutton & Bourbonnais Co., 251 N.C. 531, 112 S.E.2d 111 (1960).

Thus, the Board of Transportation has the statutory authority to determine the nature and extent of the property required for its purposes. If the Board must remove the old causeway pursuant to a permit obtained by defendant from the U.S. Coast Guard, plaintiffs may resort to their legal remedy under G.S. 136-111 to recover just compensation for the taking of their land. There is no sufficient showing that substantial or irreparable harm is being suffered or threatened which would warrant equitable relief since a fair and reasonable redress may be obtained in a court of law.

For the reasons stated, the order granting the preliminary injunction is

Reversed.

BRITT and HEDRICK, JJ., concur.