{
  "id": 8524853,
  "name": "ROBERT FRANDER and wife, VIRGIE FRANDER v. BOARD OF TRANSPORTATION",
  "name_abbreviation": "Frander v. Board of Transportation",
  "decision_date": "1984-02-07",
  "docket_number": "No. 8212SC1150",
  "first_page": "344",
  "last_page": "348",
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      "reporter": "N.C.",
      "case_ids": [
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      "year": 1983,
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      "reporter": "S.E.2d",
      "year": 1983,
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    {
      "cite": "61 N.C. App. 747",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
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      "year": 1983,
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  "last_updated": "2023-07-14T17:15:19.573584+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges BECTON and BRASWELL concur."
    ],
    "parties": [
      "ROBERT FRANDER and wife, VIRGIE FRANDER v. BOARD OF TRANSPORTATION"
    ],
    "opinions": [
      {
        "text": "JOHNSON, Judge.\nWe 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.\nThe 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\u2019 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\u2019 property, BOT constructed a controlled access Owen Drive Expressway (hereafter Expressway) opposite the front of plaintiffs\u2019 property. The Expressway runs northwesterly of and obliquely to Owen Drive where Owen Drive abuts plaintiffs\u2019 property. In constructing the Expressway, BOT abandoned much of Owen Drive. Beginning at a point 30 feet north of plaintiffs\u2019 property and continuing south some 99.6 feet along the frontage of plaintiffs\u2019 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\u2019 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\u2019 property onto and along a portion of the north side of Terry Circle. The effect of this construction totally prevents direct access from plaintiffs\u2019 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 \u201cthat there has been substantial and unreasonable interference with plaintiffs\u2019 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.\u201d\nThe 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: \u201c[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 . . .\u201d 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\u2019 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.\nWe 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 driveway provided is a \u201clocal traffic lane\u201d equivalent to a service road. Id; see also Highway Commission v. Nuckles, 271 N.C. 1, 155 S.E. 2d 772 (1967).\nDefendant attempts to show that the availability of a less convenient route precludes a taking. However, \u201cthe availability and reasonableness of any other access goes to the question of damages and not to the question of liability for the denial of access.\u201d Harkey, supra, 308 N.C. at 155, 301 S.E. 2d at 69. \u201c[W]hen all direct access is taken no inquiry into the reasonableness of alternative access is required to determine liability.\u201d Id. at 155-56, 301 S.E. 2d at 69. Therefore, the only question which remains is that of the amount of damages, which a jury will determine in accordance with the statute. G.S. \u00a7\u00a7 136-108; 136-112. Defendant\u2019s contention will be appropriate at that time.\nThe evidence supports the findings of fact, the findings support the conclusions of law, and the judgment must therefore be\nAffirmed.\nJudges BECTON and BRASWELL concur.",
        "type": "majority",
        "author": "JOHNSON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Special Deputy Attorney General James B. Richmond, for defendant appellant.",
      "Nance, Collier, Herndon and Ciccone, by James R. Nance, Sr. and James R. Nance, Jr., for plaintiff appellees."
    ],
    "corrections": "",
    "head_matter": "ROBERT FRANDER and wife, VIRGIE FRANDER v. BOARD OF TRANSPORTATION\nNo. 8212SC1150\n(Filed 7 February 1984)\nEminent Domain g 2.3\u2014 elimination of direct access to highway \u2014 compensation for a taking\nWhere the evidence supported a finding that the expansion of a highway replaced plaintiffs\u2019 former direct access to the main highway with a gravel drive to what is now a dead-end street, there was a taking of plaintiffs\u2019 property which required compensation. It is established in this State by statute and case law, when all direct access has been eliminated, there has been pro tanto a taking. G.S. 136-108; G.S. 136-112.\nAPPEAL by defendant from Herring, Judge. Judgment entered 1 June 1982 in Superior Court, Cumberland County. Heard in the Court of Appeals 23 September 1983.\nThis is an inverse condemnation proceeding instituted by plaintiffs to recover just compensation for an alleged taking of a compensable interest in their real property. Pursuant to G.S. 136-108 the trial court, without a jury, heard all issues raised by the pleadings except for the issue of damages. From the trial court\u2019s preliminary judgment holding that defendant Board of Transportation has taken a compensable interest in the plaintiffs property, Board of Transportation (hereafter BOT) appeals.\nAttorney General Edmisten, by Special Deputy Attorney General James B. Richmond, for defendant appellant.\nNance, Collier, Herndon and Ciccone, by James R. Nance, Sr. and James R. Nance, Jr., for plaintiff appellees."
  },
  "file_name": "0344-01",
  "first_page_order": 376,
  "last_page_order": 380
}