Wofford v. North Carolina State Highway Commission

140 S.E.2d 376, 263 N.C. 677, 1965 N.C. LEXIS 1349
CourtSupreme Court of North Carolina
DecidedFebruary 24, 1965
Docket448
StatusPublished
Cited by32 cases

This text of 140 S.E.2d 376 (Wofford v. North Carolina State Highway Commission) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wofford v. North Carolina State Highway Commission, 140 S.E.2d 376, 263 N.C. 677, 1965 N.C. LEXIS 1349 (N.C. 1965).

Opinions

Mooee, J.

The question is whether the closing of 21st Street about TOO feet east of plaintiffs’ property, so as to leave it on a cul-de-sac, [680]*680constitutes an appropriation of a property right of plaintiffs for which they are entitled to compensation from the State.

The same legal question, on similar facts, arose in Hiatt v. Greensboro, 201 N.C. 515, 160 S.E. 748 (1931). In holding that the property owner had suffered compensable damage this Court said: “He has an easement in the street, which is appurtenant to his lot. This easement is his private property of which he cannot be deprived even for the use of the public, without just compensation. . . . 'An abutting owner has two distinct kinds of rights in a highway, a public right which he enjoys in common with all other citizens, and certain private rights which arise from his ownership of property contiguous to the highway, and which are not common to the public generally; and this regardless of whether the fee of the highway is in him or not. These rights are property of which he may not be deprived without his consent, except upon full compensation and by due process of law. They include . . . the right to have the highway kept open as a thoroughfare to the whole community for the purpose of travel . . .’ 29 C.J. p., 547.” Further: “The plaintiffs in the instant case have suffered special damages in the depreciation of the value of their property resulting from the deprivation of their right of access to their property from the northern section of the city and from the stopping of all travel by their property from the southern section of the city. They have been deprived of rights which differ in kind and degree from the rights of the public.” This decision, at the time of its rendition, was in accord with the weight of authority in other jurisdictions. 49 A.L.R. 351; 93 A.L.R. 642.

The cul-de-sac principle was again presented to this Court, this time involving rural property, in Snow v. Highway Commission, 262 N.C. 169, 136 S.E. 2d 678 (1964). There it was held that the damages were not compensable. The rationale of that decision is fully set out in the opinion and a detailed repetition here would only overburden the Reports. We are paraphrasing the opinion as follows: To entitle the landowner to damages, he must show that land has been taken or physically damaged, or that some easement or right appurtenant to the land has been taken or interferred with. The landowner has an easement consisting of the right of reasonable access to the particular highway on which his land abuts. He has no constitutional right to have anyone pass by his premises at all; highways are built and maintained for public necessity, convenience and safety in travel and not for the enhancement of property along the route. An abutting landowner is not entitled to compensation because of circuity of travel to and from his property; such inconvenience is held to be no different in kind, but merely in degree, from that sustained by the general public, and is damnum absque injuria. When the Highway Commission acts in the [681]*681interest of public safety, convenience and general welfare, in designating highways as controlled-access highways, its action is the exercise of the police power of the State; the impairment of the value of property by the exercise of police power, where property itself is not taken, does not entitle the owner to compensation. (See the opinion in Snow for citation of authorities.)

The cul-de-sac principle (followed in Hiatt) has been generally limited to property abutting the streets in cities and towns. Snow v. Highway Commission, supra. The different treatment accorded owners of rural property abutting a road and the owner of urban property abutting a street has been held to be unsound in well-reasoned recent opinions. Tift County v. Smith, 131 S.E. 2d 527 (Ga. 1963); State v. Silva, 378 P. 2d 595 (N.M. 1963); Warren v. State Highway Commission, 93 N.W. 2d 60 (Iowa 1958); Department of Highways v. Jackson, 302 S.W. 2d 373 (Ky. 1957). Weighing the factors in the light of modern conditions, there is no reason to distinguish between rural and urban property on the question under consideration.

As stated in Hiatt, the owner of land abutting a street has two distinct rights, (1) a public right which he enjoys in common with all other citizens, and (2) a private right which arises from his ownership of property contiguous to a street. All citizens have right to the free use of a street or public way subject to the rules, regulations, restrictions and limitations promulgated pursuant to the police power of the State; this right the owner of land abutting the street or public way has in common with the public. Where a cul-de-sac is created, or the movement of traffic has been limited to one direction, the landowner’s right to use the street is no more restricted than is that of other citizens making use thereof, and the landowner has no constitutional right to have others pass his premises. Barnes v. Highway Commission, 257 N.C. 507, 126 S.E. 2d 732. The restriction upon the landowner and the restriction upon the public generally, in the use of the street for travel, is no different in kind, but merely in degree. A property owner is not entitled to compensation for mere circuity of travel. Absolute equality of convenience cannot be achieved, and those who purchase and occupy property in the proximity of public roads or streets do so with notice that they may be changed as demanded by the public interest. Snow v. Highway Commission, supra; Moses v. Highway Commission, 261 N.C. 316, 134 S.E. 2d 619; Barnes v. Highway Commission, supra; Sanders v. Smithfield, 221 N.C. 166, 19 S.E. 2d 630; Mosteller v. R. R., 220 N.C. 275, 17 S.E. 2d 133. The private right of the 'owner of land abutting a street or highway is an easement appurtenant to the land, consisting of the right of reasonable access to the particular street or highway which his property abuts. Snow v. Highway Com[682]*682mission, supra; Moses v. Highway Commission, supra; Abdalla v. Highway Commission, 261 N.C. 114, 134 S.E. 2d 81; Hedrick v. Graham, 245 N.C. 249, 96 S.E. 2d 129. In the instant case, no part of plaintiffs’ land was taken or physically injured. Their right of reasonable access to 21st Street has not been appropriated, limited or interfered with.

In final analysis, plaintiffs seek to recover damages for the alleged impairment of the value of their property resulting from the obstruction of 21st Street 100 feet to the east of the property. Such damage is not compensable. The General Assembly has found, determined and declared that controlled-access highways are necessary for the preservation of the public peace, health and safety, the promotion of the general welfare, the improvement and development of transportation facilities in the state, the elimination of hazards at grade intersections, and other related purposes. G.S. 136-89.53. When the Highway Commission acts in the interest of public safety, convenience and general welfare, in designating highways as controlled-access highways, its action is the exercise of the police power of the State. And the impairment of the value of property by the exercise of police power, where property itself is not taken, does not entitle the owner to compensation. Barnes v. Highway Commission, supra; Nick v. State Highway Commission, 109 N.W. 2d 71 (Wis. 1961).

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Bluebook (online)
140 S.E.2d 376, 263 N.C. 677, 1965 N.C. LEXIS 1349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wofford-v-north-carolina-state-highway-commission-nc-1965.