Kenco Petroleum Marketers v. State Highway Com'n

152 S.E.2d 508 (1967)

269 N.C. 411

KENCO PETROLEUM MARKETERS, INC. v. STATE HIGHWAY COMMISSION.

No. 686.

Supreme Court of North Carolina.

February 3, 1967.

*511 Walser, Brinkley, Walser & McGirt, Lexington, for plaintiff appellant.

Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harrison Lewis, Asst. Atty. Gen., Andrew, McDaniel and Seymour, Rollins & Rollins, Greensboro, for defendant appellee.

LAKE, Justice.

U.S. Highway 29-70 Bypass, at the location in question on this appeal, is a controlled access facility. G.S. § 136-89.49(2). There can be no doubt of the authority of the State Highway Commission, upon its finding that the construction and use of a driveway, affording direct access from adjoining property onto such highway, would be or is an obstruction to the free flow of traffic thereon, or a hazard to the safety of travelers upon the highway, to forbid the construction of the driveway or to prohibit its further use. G.S. § 136-89.51; Hedrick v. Graham, 245 N.C. 249, 96 S.E.2d 129. It is equally clear that when the Commission, in the interest of the public safety, convenience and general welfare, without the taking or destruction of a property right, regulates the right to enter upon or to proceed along such a highway, the owner of land which is thereby diminished in value, such as by the diminution in volume of traffic upon the highway in front of it, is not entitled to compensation. Wofford v. North Carolina State Highway Commission, 263 N.C. 677, 140 S.E.2d 376. Conversely, if such action by the Commission is a taking or destruction of a pre-existing property right, the owner of such right is entitled to compensation for its taking or destruction. Hedrick v. Graham, supra. In the latter event, the remedy of such property owner is by a proceeding under Chapter 136 of the General Statutes. This is the remedy sought by the plaintiff in the present proceeding.

In determining whether the plaintiff had a property right which has been taken or destroyed by the resolution of the Highway Commission, we are not controlled by the provision in G.S. § 136-89.52 that "Along new highway locations abutting property owners shall not be entitled, as a matter of right, to access to such new locations; however, the denial of such rights of access shall be considered in determining general damages." This statute was not enacted until 1957, four years after the right of way agreement between the Commission and the plaintiff's predecessor in title. It is also not necessary for us to determine upon this appeal what would have been the rights of the parties without such agreement. The agreement was made and the rights of the parties are fixed thereby, the plaintiff having the rights of its predecessor in title and no others. Abdalla v. State Highway Commission, 261 N.C. 114, 134 S.E.2d 81. We turn, therefore, to the construction of the following provision in that agreement:

"It is further understood and agreed that the undersigned and their heirs and assigns shall have no right of access to the highway constructed on said right of way except at the following survey stations: 350+00."

The identical language was used in the right of way agreement involved in Williams v. North Carolina State Highway Commission, 252 N.C. 772, 114 S.E.2d 782, where the Court, speaking through Winborne, C. J., said:

"The agreement provided the owners $2,500 cash, a highway constructed across their land, and a right of access at survey station 761+00 right. This right of access was an easement, a property right, and as such was subject to condemnation. Defendant's refusal to allow plaintiffs to enter upon the highway at the point of the easement constituted a taking or appropriation of private property. For such taking or appropriation, an adequate statutory remedy in the nature of a special proceeding is provided."

If the Commission, by its resolution, has deprived the plaintiff of a right reserved by or conferred upon the plaintiff's predecessor in title by her agreement with the Commission, the plaintiff is entitled to *512 maintain this proceeding and to the appointment of commissioners to ascertain its damages as provided in Chapter 136 of the General Statutes.

The agreement in this case refers to the plans in the office of the Commission and to "connecting ramps." The parties must, therefore, be deemed to have had in mind the construction of such ramps when they agreed that the plaintiff's predecessor in title, her heirs and assigns, would have a right of access to the highway at survey station 350+00. The Commission now contends that they must be deemed to have meant by the above quoted provision that the owner of the plaintiff's land would have the right to descend the ramp from Kivett Drive and thus enter upon the south or westbound lanes of Highway 29-70. Since all the world has this right, such a construction of the agreement between this landowner and the Commission would be most unreasonable. Such construction would give to the landowner no greater right of access than he would have had if there had been omitted entirely from the agreement the words "except at the following survey stations: 350+00." These words in the agreement meant something. It was intended thereby to leave in or confer upon the landowner a right of access which the general public did not have, and which the landowner would not have had if the excepting phrase had been omitted from the agreement. It will be observed that the agreement in this case did not provide, as did the agreement in Abdalla v. State Highway Commission, supra, "grantors * * * shall have no right of access to the highway constructed on said right-of-way except by way of service roads and ramps built in connection with this project in the vicinity of survey station 0+00." (Emphasis added.)

We think the plain meaning of the agreement between the Commission and Mrs. Shelton is that she surrendered whatever claim she, and her successor in interest, might otherwise have to a direct access to Highway 29-70 at other points along the southern boundary of this tract in exchange for a cash consideration and a reservation or grant of a right of direct access "to the highway constructed on said right of way" at the designated point. The amount of the cash consideration paid to Mrs. Shelton was unquestionably affected by the insertion of this provision in the agreement.

The ramp is part of such highway. See Moses v. State Highway Commission, 261 N.C. 316, 134 S.E.2d 664. Direct access from the plaintiff's land to the ramp is, therefore, a compliance with the provision of the agreement between the Commission and Mrs. Shelton.

This right of direct access from the plaintiff's land to the highway, whether it existed prior to the agreement or was created by it, was an easement appurtenant to the plaintiff's land and was a private property right in the plaintiff, over and above the plaintiff's right, as a member of the public, to use this ramp as a means of getting to the southwestbound lanes of the highway. See: State Highway Commission v. Raleigh Farmers Market, 263 N.C. 622, 139 S.E.2d 904; Wofford v. North Carolina State Highway Commission, supra; Snow v. North Carolina State Highway Commission, 262 N.C. 169, 136 S.E.2d 678; Abdalla v. State Highway Commission, supra; Williams v. North Carolina State Highway Commission, supra; Hedrick v. Graham, supra. While the owner of land abutting upon a highway does not have a right of direct access thereto at all points at which his land touches the highway right of way, and the Commission, nothing else appearing, can determine the point at which such access right shall be exercised so long as its determination is reasonable, this does not apply where the parties have by their agreement fixed the point of access. In Abdalla v. State Highway Commission, supra, in which there was a right of way agreement specifying the place and manner of such access, this Court said, "The rights of the parties are fixed and *513 controlled by the `Right of Way Agreement.'"

The plaintiff, by virtue of the agreement between the Commission and his predecessor in title, had an easement for direct access to the highway at the designated point. This property right the Commission has destroyed. It was authorized to do so in the public interest, but for such a taking of its property the plaintiff is entitled to compensation. The statute provides for the appointment of commissioners to determine the compensation to be paid. G.S. § 136-89.52; G.S. § 136-109.

The court erred in its decree that the plaintiff is not entitled to have such commissioners appointed, and in dismissing the action. The judgment of the superior court is, therefore, reversed and the matter is remanded for the entry of an order in conformity with this opinion.

Reversed and remanded.