Smith v. Powell , 32 N.C. App. 563 ( 1977 )

HEDRICK, Judge.

The respondent contends that the uncontroverted facts do not support the conclusion that petitioner was' not operating a motor vehicle on a highway within the meaning of G.S. 20-16.2 at the time of his arrest. G.S. 20-4.01(13) defines a highway for the purpose of Chapter 20 as, “The entire width between property or right-of-way lines of every way or place of whatever nature, when any part thereof is open to the use of the public as a matter of right for the purposes of vehicular traffic.”

The uncontroverted findings of fact clearly establish that petitioner at the time of his arrest was operating a motor vehicle between the right-of-way lines of a “way or place” a portion of which is open to the public as a matter of right for vehicular traffic, as U. S. Highways 74-76. We hold the trial court erred in concluding that petitioner was not operating a motor vehicle at the time of his arrest on a highway within the meaning of G.S. 20-16.2.

In Joyner v. Garrett, Comr. of Motor Vehicles, 279 N.C. 226, 232, 182 S.E. 2d 553, 558 (1971), Justice (now Chief Justice) Sharp wrote, “If, under the facts found by the judge, the statute [G.S. 20-16.2 (d)] requires the suspension or revocation of petitioner’s license ‘the order of the department entered in conformity with the facts found must be affirmed.’ ” (Citations omitted.)

In the present case the findings of fact dictate the conclusion that petitioner was operating his automobile at the time of his arrest on a highway within the meaning of G.S. 20-16.2 (d). Accordingly, the judgment appealed from is reversed, and the proceeding is remanded to the Superior Court for the entry of an order affirming respondent’s order revoking petitioner’s license.

Reversed and remanded.

Judge BRitt concurs. Judge Clark dissents.