Department of Transportation v. Harkey

290 S.E.2d 773, 57 N.C. App. 172, 1982 N.C. App. LEXIS 2605

• Court: Court of Appeals of North Carolina
• Decided: May 4, 1982
• Docket: No. 8118SC838
• Status: Published

Opinions

ARNOLD, Judge.

Defendants’ only assignment of error is that the trial court erred in its conclusion that the church would have reasonable and adequate access to the proposed highway abutting its property. Defendants contend that the route to be provided is so circuitous and inconvenient as to entitle them to compensation under G.S. 136-89.53 which provides:

Section 136-89.53. New and existing facilities; grade crossing eliminations.

The Department of Transportation may designate and establish controlled-access highways as new and additional facilities or may designate and establish an existing street or highway as included with a controller access facility. When an existing street or highway shall be designated as and included within a controlled access facility, the owners of land abutting such existing street or highway shall be entitled to compensation for the taking or injury to their easements of access (emphasis added) ....

In claiming a right to compensation under this statute, defendants rely heavily on Smith Co. v. Highway Commission, 279 N.C. 328, 182 S.E. 2d 383 (1971). The Smith court held an abutting property had been denied its right of access when the only available route to the adjacent highway was “by circuitous travel over residential streets.” The court qualified its holding, however, by citing the long-standing rule that “. . . the owner is not entitled to compensation merely because of circuity of travel. . . .” (Citations omitted.) Id. at 334, 182 S.E. 2d at 387. This apparent inconsistency can be resolved by reference to an earlier opinion by Chief Judge Mallard of this Court who pointed out that the main question in cases such as this one concerns the reasonableness of the substitute access provided. Highway Commission v. Rankin, 2 N.C. App. 452, 163 S.E. 2d 302 (1968). Clearly, a determination of what is reasonable in any given case must be made in view of the particular facts and circumstances of that case.

We find the case at bar to be factually distinguishable from Smith in that Smith involved a commercial property rather than a church. Moreover, there is evidence that the State has made a greater effort to provide adequate alternative access routes in this case than in Smith. These factual distinctions were properly for the trial court to consider in arriving at its final judgment.

Defendants clearly are entitled to full compensation for any diminution in the market value of their property resulting from the highway project as well as for the value of the strip of land actually appropriated by DOT. With regard to the claim before us on appeal, however, we find sufficient evidence in the record to support the trial court’s conclusion that defendants are not entitled to damages for loss of access.

Affirmed.

Judge Clark concurs. Judge WEBB dissents.