Williams v. North Carolina State Highway Com'n , 252 N.C. 772 ( 1960 )

114 S.E.2d 782 (1960) 252 N.C. 772

R. Saunders WILLIAMS, W. Walter Hornig, and John F. Troxler, Jr.
v.
NORTH CAROLINA STATE HIGHWAY COMMISSION.

No. 610.

Supreme Court of North Carolina.

June 10, 1960.

Fred M. Upchurch, Booth & Osteen, Greensboro, for plaintiffs-appellants.

Atty. Gen. T. Wade Bruton, Asst. Attys. Gen., Kenneth Wooten, Jr., Harrison Lewis, Raleigh, and Adams, Kleemeier & Hagan, Greensboro, for State Highway Commission.

WINBORNE, Chief Justice.

The defendant North Carolina State Highway Commission, an unincorporated governmental agency of the State, is not subject to suit except in the manner expressly authorized by statute. Latham v. State Highway Comm., 191 N.C. 141, 131 S.E. 385; McKinney v. North Carolina State Highway Comm., 192 N.C. 670, 135 S.E. 772; Schloss v. State Highway & Public Works Comm., 230 N.C. 489, 53 S.E.2d 517; Moore v. Clark, 235 N.C. 364, 70 S.E.2d 182; Cannon v. City of Wilmington, 242 N.C. 711, 89 S.E.2d 595, 596.

The authorized manner of suit against the Highway Commission to recover compensation for the taking of property is by a special proceeding in condemnation under G.S. § 136-19, and G.S. § 40-12 et seq. There is an exception to the above rule where "private property is taken under circumstances such that no procedure provided by statute affords an applicable or adequate remedy." Under these circumstances, "the owner, in the exercise of his constitutional rights, may maintain an action to obtain just compensation therefor." Cannon v. City of Wilmington, supra; Sale v. State Highway & Public Works Comm., 242 N.C. 612, 89 S.E.2d 290. However the exception has no application here.

This Court said in Sanders v. Town of Smithfield, 221 N.C. 166, 19 S.E.2d 630, that the owner of abutting property has the right of egress from and ingress to his property, that this right is in the nature of an easement appurtenant to the property, that the easement itself is property, and that interference with the easement by vacating or closing a street under circumstances resulting in depreciation of the value of the abutting property is considered pro tanto a taking of the property (easement) for which compensation must be allowed.

An abutting landowner's right of access to a public highway adjacent to his property is in the nature of an easement appurtenant to his property. Hedrick v. Graham, 245 N.C. 249, 96 S.E.2d 129, 134. In the Hedrick case this Court held that the State Highway Commission has statutory authority "to exercise the power of eminent domain to condemn or severely curtail an abutting landowner's right of access to a public highway adjacent to his property for the construction or reconstruction, maintenance and repair, of a limited-access highway upon the payment of just compensation."

The Highway Commission is not required to bring a special proceeding against the owner for the condemnation of private property prior to taking it, but may actually take the property and appropriate it to public use. Moore v. Clark, supra; Gallimore v. State Highway & Public Works Comm., 241 N.C. 350, 85 S.E.2d 392. When this is done the property owner is entitled to just compensation but he must pursue the prescribed remedy.

Plaintiffs in their brief concede that the remedy for the taking of an easement is a special proceeding in condemnation. However they argue that they had no property right which could be taken here, but that they had a contractual right which was not subject to condemnation. A similar point was argued in Long Island Water-Supply Co. v. City of Brooklyn, 166 U.S. 685, 17 S. Ct. 718, 720, 41 L. Ed. 1165, where plaintiff had a twenty-five year contract with the city to supply it water and the city acquired plaintiff's water supply system by condemnation. In response to the argument that the taking was improper because it interfered with a contract right the court said "it (the argument) ignores the fact that the contract is a mere incident to the tangible property; that it is the latter which, being fitted for public use, is condemned * * * it still is true that the contract is not the thing which is sought to be condemned, and its impairment, if impairment there be, is a mere consequence of the appropriation of the tangible property." The fact that plaintiffs' right of access arose out of an agreement and a deed does not prevent its being a property right. Indeed, defendant's right-of-way was created by agreement, but it is nonetheless a property right.

The defendant has authority by virtue of G.S. § 136-19 to acquire rights-of-way by purchase. Sale v. State Highway & Public Works Comm., 238 N.C. 599, 78 S.E.2d 724. The right-of-way agreement involved here embodies a purchase which vests in the State Highway and Public Works Commission a right-of-way over certain specifically described land, the abutting owners' right of access except at one specific point, and other incidental rights not pertinent to this appeal. The agreement provided the owners $2,500 cash, a highway constructed across their land, and a right of access at survey station 761 + 00 right. This right of access was an easement, a property right, and as such was subject to condemnation. Defendant's refusal to allow plaintiffs to enter upon the highway at the point of the easement constituted a taking or appropriation of private property. For such taking or appropriation, an adequate statutory remedy in the nature of a special proceeding is provided. Plaintiffs' complaint having stated a civil action, the demurrer thereto was properly sustained.

Affirmed.