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Frander v. Board of Transportation

311 S.E.2d 308, 66 N.C. App. 344, 1984 N.C. App. LEXIS 2888
CourtCourt of Appeals of North Carolina
DecidedFebruary 7, 1984
DocketNo. 8212SC1150
StatusPublished
Cited by1 cases

This text of 311 S.E.2d 308 (Frander v. Board of Transportation) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frander v. Board of Transportation, 311 S.E.2d 308, 66 N.C. App. 344, 1984 N.C. App. LEXIS 2888 (N.C. Ct. App. 1984).

Opinion

JOHNSON, Judge.

We note initially that defendant has failed to comply with Rule 12(a) of Rules of Appellate Procedure, which requires filing of the record on appeal no later than 150 days after giving notice of appeal. The trial judge announced his decision in open court on 1 June 1982, and BOT immediately gave oral notice of appeal. (The formal written judgment was signed 7 June 1982.) BOT did not file the record in this Court until 3 November 1982, some 155 days after judgment. Ordinarily the violation of the 150 day requirement would deprive the aggrieved party of his right to appeal and we would dismiss the appeal. See State v. Ward, 61 N.C. App. 747, 301 S.E. 2d 507 (1983). Nevertheless, we exercise our discretion and consider the merits.

The undisputed facts are as follows: The plaintiffs are owners of a house and lot in Fayetteville. Their property is situated in the northeastern corner of the intersection of, and abuts upon, Owen Drive and Terry Circle. Owen Drive runs north and south, and prior to the construction in question, it was a main-traveled thoroughfare. Terry Circle runs east and west. Plaintiffs’ house and attached carport face Owen Drive on its east side. The driveway runs westerly from the carport to Owen Drive. Without using or acquiring any of plaintiffs’ property, BOT constructed a controlled access Owen Drive Expressway (hereafter Expressway) opposite the front of plaintiffs’ property. The Expressway runs northwesterly of and obliquely to Owen Drive where Owen Drive [346]*346abuts plaintiffs’ property. In constructing the Expressway, BOT abandoned much of Owen Drive. Beginning at a point 30 feet north of plaintiffs’ property and continuing south some 99.6 feet along the frontage of plaintiffs’ property to Terry Circle, Owen Drive was plowed up and the pavement totally removed. An open ditch was constructed at the north and south ends of this abandoned section of Owen Drive. BOT also constructed a chain link fence between plaintiffs’ property and the Expressway. The fence is constructed on the right-of-way of the east side of Owen Drive and runs for the distance of the frontage of plaintiffs’ property onto and along a portion of the north side of Terry Circle. The effect of this construction totally prevents direct access from plaintiffs’ property onto the main travel lanes of Owen Drive and the main travel lanes of the Expressway. After construction of the Expressway, Terry Circle continues to intersect on grade with the Expressway. By way of the gravel drive the plaintiffs are required to take a more inconvenient and circuitous route between their driveway and the main travel lanes of the Expressway. In its preliminary judgment, after making findings of fact, the trial judge concluded as a matter of law “that there has been substantial and unreasonable interference with plaintiffs’ right of access onto Old Owen Drive and onto the limited access Owen Drive Expressway and that such constitutes the taking of a property right for which compensation must be paid.”

The recent decision of the Supreme Court in Department of Transportation v. Harkey, 308 N.C. 148, 301 S.E. 2d 64 (1983) is dispositive of this appeal. There the Court stated: “[I]t is established in this state by statute and case law, when all direct access has been eliminated, there has been pro tanto a taking . . .” 308 N.C. at 155, 301 S.E. 2d at 69. Here the court found, and the evidence supports its findings, that the expansion replaced plaintiffs’ former direct access to the main highway with a gravel drive to what is now a dead-end street. These findings are conclusive on appeal, Little v. Little, 9 N.C. App. 361, 176 S.E. 2d 521 (1970), and they establish that a taking occurred. Harkey, supra.

We note that under the rule established in Harkey, an exception is recognized, and that is, where a service road is provided as a substitute for the former direct access no taking occurs. 308 N.C. at 156-58, 301 S.E. 2d at 69-71. Defendant does not contend, nor does the record justify a conclusion, that the narrow gravel [348]*348driveway provided is a “local traffic lane” equivalent to a service road. Id; see also Highway Commission v. Nuckles, 271 N.C. 1, 155 S.E. 2d 772 (1967).

[347]

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311 S.E.2d 308, 66 N.C. App. 344, 1984 N.C. App. LEXIS 2888, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frander-v-board-of-transportation-ncctapp-1984.