Home/Supreme Court of North Carolina/Davis v. Alexander

Davis v. Alexander

202 N.C. 130
Supreme Court of North Carolina·Decided January 27, 1932·Published·Cited by 21 cases

Opinion

ClaeesoN, J.

Tbe court below “ordered, adjudged and decreed: Tbat tbe temporary restraining order heretofore issued in this action against tbe defendant be, and tbe same is hereby vacated and a permanent restraining order against tbe defendant be and tbe same is hereby denied.” From tbe above judgment, tbe plaintiff excepted, assigned error and appealed to tbe Supreme Court. ¥e think tbe judgment in tbe court below must be reversed and tbe prayer of plaintiff for mandatory injunction allowed.

Tbe law applicable to this action is well stated in 2 Elliott, Roads and Streets (4th ed.), part sec. 1172, at p. 1668: “ ‘Once a highway always a highway,’ is an old maxim of tbe common law to wbicb we have often referred, and so far as concerns tbe rights of abutters, or others occupying a similar position, who have lawfully and in good faith in[132] vested money or obtained property interests in tbe just expectation of tbe continued existence of tbe-highway, tbe maxim still bolds good. Not even tbe legislature can take away such rights without compensation. Such, at least, is tbe rule which seems to us to be supported by tbe better reason and tbe weight of authority, although there is much apparent conflict as to the doctrine when applied to the vacation of highways.” Moose v. Carson, 104 N. C., 431; Colvin v. Power Co., 199 N. C., 353; Crowell v. Power Co., 200 N. C., 208; Combs v. Brickhouse, 201 N. C., 366; Hiatt v. Greensboro, 201 N. C., 515.

In Hiatt v. Greensboro, supra, Connor, J. (petition to rehear denied), wrote an able opinion for the Court. It was there held: “While the public has,- ordinarily, only the right to the use of public streets for travel so long as the streets are maintained for that purpose by public authority, an abutting owner has an easement in the street to have it kept open as a means of egress and ingress to and from his property, and he may not be deprived of his right without just compensation.” See .White v. Coghill, 201 N. C., 421.

The General Assembly of North Carolina, Public Laws of 1921, chap. 2, passed “An act to provide for the construction and maintenance of a State system of hard-surfaced and other dependable roads connecting by the most practicable routes the various county seats and other principal towns of every county in the State for the development of agriculture, commercial and industrial interests of the State, and to secure benefits of Federal aid therefor, and for other purposes.” Section 7, in part, is as follows: “A map showing the proposed roads to constitute the State highway system is hereto attached to this bill and made a part hereof. The roads so shown can be changed, altered, added to o'r discontinued by the State Highway Commission: Provided, no roads shall be changed, altered or discontinued so as to disconnect county seats, principal towns, State or National parks or forest reserves, principal State institutions, and highway systems of other states.” Section 10(b), is in part: “To take over and assume exclusive control for the benefit of the State of any existing county or township roads, and to locate and acquire rights of way for any new roads that may be necessary for a State highway system, with full power to widen, relocate, change, or alter the grade or location thereof; to change or relocate any existing roads that the State Highway Commission may now own or may acquire,” etc.

It is a matter of common knowledge that in carrying out the mandate of the General Assembly, the State Highway Commission found it necessary for engineering and financial reasons to change grades, to make shorter routes from county seat to county seat and principal towns,

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Davis v. Alexander, 202 N.C. 130 (N.C. 1932).

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