Town of Yadkin College v. State Highway Commission

138 S.E. 717, 194 N.C. 180, 1927 N.C. LEXIS 38

• Court: Supreme Court of North Carolina
• Decided: June 25, 1927
• Status: Published

Opinion

BeogdeN, J.

From tbe findings of fact and tbe evidence in tbe cause, it appears tbat there was an existing road between Lexington, tbe county-seat of Davidson County, and Moeksville, tbe county-seat of Davie County. Tbis road passed through tbe village of Yadkin College. Tbe defendant proposed to shorten tbe alignment of said road by construct ing the road along a new location, which leaves the present road some distance east of Yadkin College and reenters the present road at Fork Church. In effect the proposed change or shortening of the line eliminates a loop in the present road, and also eliminates certain alleged expensive creek crossings. The plaintiff contends that the defendant has no power to make this change in the line of the road.

Yadkin College is not shown on the legislative map attached to the Act of 1921. There is no allegation, evidence, or finding of fact, that the defendant mapped this particular road and posted it at the courthouse door in Davidson County. It is further found as a fact, and this finding is supported by the evidence, that Yadkin College is not a principal town as contemplated by the statute. It also appears that the extent of the contemplated change is a mere shortening of the alignment of the highway, and that the departure between the proposed line and the present highway varies from nothing to perhaps seven or eight thousand feet. Under the particular facts and circumstances disclosed in the record this would not be such a radical departure as condemned in the Newton and Carlyle cases. Indeed, the principle announced by Connor, J., in Johnson v. Highway Commission, 192 N. C., 561, is decisive of this case upon the facts disclosed in the record, if the proposed change in the road was made under the Act of 1921.

It appears from the record that the defendant posted a map at the courthouse door in Davidson County and in Davie County, showing the proposed changes in accordance with the provisions of chapter 46 of the Public Laws of 1921. All changes authorized by chapter 46 of the Public Laws of 1927 were subject to the provisions of sections 3 and 4 of said act. Section 3 of the act provides that the number of highways entering the corporate limits of a county-seat or principal town “now served by the State Highway Commission shall not be reduced without the consent of the street governing body of said town.” The Court held in Carlyle v. Highway Commission, 193 N. C., p. 36, that the defendant was without power to reduce the service of the system to a county-seat “by destroying and consolidating a separate and independent link or connection by which that service is to be delivered to the county-seat.” However, it appears in this case that the plaintiff is not a principal town as contemplated by the statute, and hence the defendant was under no obligation to procure the consent of the street governing body thereof.

Again, plaintiff contends that it is “immediately effected,” as defined by section 2 of said chapter 46, by the change in the route of the road proposed by the defendant. The pertinent clause of section 2 is as follows: “Any county-seat or principal town shall be deemed ‘immediately effected’ if the proposed change or alteration shall enter or leave said town by streets other than those used for such purposes prior to the proposed change.” But it will be observed that tbe application of tbe principle assumes tbe existence of a principal town or county-seat, and Yadkin College is neither.

We bold, therefore, that tbe plaintiff is not entitled to tbe relief requested, and tbe judgment rendered by tbe trial judge is

Affirmed.