Gene's, Inc. v. City of Charlotte

129 S.E.2d 889 (1963)

259 N.C. 118

GENE'S, INC., Plaintiff, v. CITY OF CHARLOTTE, Defendant.

No. 255.

Supreme Court of North Carolina.

March 20, 1963.

*891 Plumides & Plumides, Charlotte, for plaintiff appellant.

John T. Morrisey, Sr., Charlotte, for defendant appellee.

SHARP, Justice.

Every municipal corporation has specific statutory authority to adopt such ordinances for the regulation and use of its streets as it deems best for the public welfare of its citizens and to provide for the regulation and diversion of vehicular traffic upon its streets. G.S. § 160-200(11), (31). It is the exercise of the police power vested in the City of Charlotte by this statute which the plaintiff has had restrained for over a year and which it seeks to restrain permanently.

When this case was called for trial, the plaintiff made a motion for judgment on the pleadings and that the temporary restraining order be made permanent "upon the theory that the City not having appealed from said order, that the matter has now been adjudicated * * *" The denial of this motion is the subject of plaintiff's first assignment of error. It is overruled. Plaintiff was not entitled to a judgment on the pleadings, and the granting of the temporary injunction was no determination of the case upon its merits.

"The findings of fact and other proceedings of the judge who hears the application for an interlocutory injunction are not binding on the parties at the trial on the merits. Indeed, these findings and proceedings are not proper matters for the consideration of the court or jury in passing on the issues determinable at the final hearing." Huskins v. Yancey Hospital, Inc., 238 N.C. 357, 78 S.E.2d 116.

In the recent case of Barnes v. Highway Commission, 257 N.C. 507, 126 S.E.2d 732, decided since the preliminary injunction was issued in this case, Justice Bobbitt thoroughly explored the rights of *892 an abutting landowner when a median strip, separating the flow of traffic, is placed in the highway. In the Barnes case, as in this, plaintiff did not contend that the public safety was not served by the median strip. He sought compensation for an alleged diminution in the value of his property which fronted on U. S. Highway No. 401 when the north and southbound traffic lanes were separated by a median strip. The Court said: "The separation of the lanes of #401 for northbound traffic from the lanes thereof for southbound traffic was and is a valid traffic regulation adopted by the Highway Commission in the exercise of the police power vested in it by G.S. Chapter 136, Article 2, and injury, if any, to petitioner's remaining property caused thereby is not compensable."

When an ordinance is within the grant of power to the municipality, the presumption is that it is reasonable. State v. Hundley, 195 N.C. 377, 142 S.E. 330, 57 A.L.R. 506. Independence Boulevard is a fourlane street in Charlotte, the State's largest city. A median strip, completely separating traffic moving in opposite directions on it, and preventing left turns except at intersections, is an obvious safety device clearly calculated to reduce traffic hazards. Plaintiff still has free and unhampered ingress and egress to its property. It has no property right in having the flow of traffic past its drive-in restaurant remain unchanged from December 4, 1961.

As noted in the opinion in Barnes, supra, in an annotation entitled "Power to Restrict or Interfere with Access of Abutter by Traffic Regulations," 73 A.L.R.2d 689, 692, the author states: "In no case has a court held unreasonable, on account of interference with access, a regulation of the general direction, flow, or division of all traffic on a given street or highway." Certainly there is nothing in this record to suggest that the ordinance under consideration is either unreasonable or oppressive. It was a proper exercise of the City's police power. The testimony by plaintiff's president that there is a left-turn lane in front of South 21 on Independence Boulevard, four miles away from Jerry's Drive-In, does not tend to show that the ordinance confers upon the City Council a power to discriminate arbitrarily as between drive-in restaurants. The motion for nonsuit was properly allowed.

For the first time, in its assignments of error, plaintiff complains that it was denied a jury trial. Even if there were issues of fact in this case, it would not be necessary to consider this assignment since it is not supported by any exception in the record. "Purported exceptions appearing nowhere except in the assignments of error will not be considered on appeal." Vance v. Hampton, 256 N.C. 557, 561, 124 S.E.2d 527; Bulman v. Southern Baptist Convention, 248 N.C. 392, 103 S.E.2d 487.

The judgment below is

Affirmed.