#### R. D. MOSTELLER, CONNELLY WILLIAMS and Wife, WILMA WILLIAMS, E. A. WARLICK and Wife. LETTIE WARLICK, B. A. BERRY and Wife, DONNIE BERRY, and MRS. KELLY ICARD and MRS. R. B. MORGAN v. SOUTHERN RAILWAY COMPANY.

(Filed 5 November, 1941.)

1. Highways § 13—

Where the State Highway Commission, in the interest of public safety, builds an overpass and relocates a short section of the road in order to cut out dangerous curves and an inadequate underpass, and thereafter tears up the section of old road lying on one side of the underpass, the short section of old road is not a highway abandoned by the State Highway Commission which remains open and in general use by the public within the purview of ch. 302, Public Laws 1933, Michie’s Code, 3838 (b), and does not become a neighborhood public road.

2. Same—

The statute providing that highways abandoned by the State Highway Commission become neighborhood public roads merely fixes the status of such roads as public roads and does not invest any private easement in owners of property abutting the abandoned road, their right to the continued use of such road being the same as that of the public generally.

*2763. Highways § 18 — The right of owners of property abutting abandoned road to have road kept open for access to new road is based upon necessity.

Where a highway has been relocated and a short section of the old road abandoned by the State Highway Commission, the right of the owners of property abutting the abandoned road to continue to use the same is limited to an easement by necessity for the purpose of ingress and egress to the new road, and when only one end of the abandoned road is discontinued and obstructed so that ingress and egress is afforded from the other end, owners of property abutting the old road are not entitled to an easement by necessity and may not restrain the closing of the one end of the old road merely for their convenience as against the right of the owner of the fee in the land to the full enjoyment of his land after the necessity of an easement for a public way no longer exists.

4. Highways § lc—

Where the State Highway Commission, in the interest of public safety, builds an overpass and relocates a highway to cut out dangerous curves and an inadequate underpass, it has the authority to order the underpass closed, if not by authority expressly conferred in ch. 46, sec. 1, Public Laws 1927, then in the exercise of the police power by an appropriate agency of the State.

5. Railroads § 2 — Owners of property abutting abandoned highway held not entitled to restrain railroad from closing abandoned underpass.

The State Highway Commission, in the interest of public safety, relocated a section of highway to cut out dangerous curves and an inadequate underpass. Plaintiffs, the owners of property abutting the old road, had access to the new road over the section of the old road kept open, but the Highway Commission tore up the section of the old road lying on the other side of the underpass and ordered the railroad company to close the underpass. Plaintiffs instituted this action for a permanent injunction to restrain the railroad company from complying with the order to close the underpass. Sold: Plaintiffs do not have an easement by necessity and are not entitled to have the underpass kept open merely for their greater convenience in reaching the new road, and there being no contention that the old highway had been in use for sufficient length of time to give them an easement by prescription in its continued use, the temporary restraining order entered in the cause was properly dissolved.

6. Injunctions § 11—

In an action for permanent injunction, the temporary restraining order is properly dissolved upon the hearing of the motion to show cause when it is made to appear that plaintiffs are not entitled to the relief sought, but it is error to dismiss the action, and the taxing of costs against plaintiffs at that time is at least premature, since the action can be properly dismissed only at term.

Appeal by plaintiffs from Warlick, J., at June Term, 1941, of Burice.

Affirmed.

This is an action for a permanent injunction to prevent defendants from closing an underpass and obstructing a road which, as plaintiffs *277contend, they have the present right to use. The facts, as summarized from the record, appear to be as follows :

About twelve years ago the highway from Connelly Springs to Icard crossed defendant’s railroad at grade a short distance west of the underpass which is the subject of the present controversy. The State Highway Commission, which succeeded the Burke County highway commissioners in control of this highway, eliminated the grade crossing by relocating the highway along the north side of the railway and through the present underpass to the south side a little west of the post office and school in that village. The underpass was made through a fill, the tracks being supported on a creosoted timber trestle work. Its upkeep is stated to be about $225 a year.

While the highway was thus located, the plaintiffs, or some of them, purchased and built adjacent to the highway, many of them near the eastern end of this section in the vicinity of the underpass.

Recently the Highway Commission, after surveys and investigation in which it was ascertained that the underpass was inadequate and that a section of the highway through it had dangerous curves, decided to relocate the road, to close the underpass, and to route the highway so as to cross the railroad on an overhead bridge a short distance from the old grade crossing, in lieu of the underpass, thus taking out the dangerous curves in its vicinity, straightening the highway, and eliminating the expense of upkeep of the underpass. Accordingly a map was prepared showing the relocated road in its relation to the existing highway, upon which map was indicated the closing of the underpass, the building of the overhead bridge across the tracks, and, in detail, the route of the proposed relocation. This map was posted at the courthouse door in Morganton, as required by statute, and is in the evidence. No protest was made to the proposed changes, either by the county commissioners or any other person, and the Highway Commission proceeded to put into effect the changes indicated. The road was relocated, the overhead bridge constructed, the new highway finished, and the routing completed. Thereupon the Highway Commission discontinued and tore up that portion of the highway on the south side leading from the underpass to the relocated highway, blocking the same and rendering it unavailable for passage, and removing a bridge across a stream upon the discontinued portion. Thereupon the Highway Commission notified the defendant to close the underpass. This defendant undertook to do, and while the work was in progress and partially completed, the plaintiffs brought this action to permanently enjoin defendant from closing the underpass and obtained a temporary restraining order. Upon the hearing of the order *278to show cause, tbe judge dissolved tbe restraining order, dismissed tbe action, and taxed plaintiffs witb tbe costs. Tbe plaintiffs appealed, assigning error.

O. L. Horton and Mull & Patton for plaintiffs, appellants.

W. T. Joyner, S. J. Ervin, Sr., Harry L. Riddle, Jr., and Clyde R. Hoey for defendant, appellee.

Sea well, J.

Tbe plaintiffs rely on alternative propositions, either of wbicb, tbey contend, puts tbe defendant in tbe wrong: (1) Tbat tbe relocation of tbe highway constituted an abandonment by tbe Highway Commission of tbe discontinued portion of tbe old road, wbicb, as tbey contend, automatically, under C. S., 3838 (b) (Michie’s Code, 1939), gave it tbe status of a neighborhood public road, wbicb defendant bad no right to obstruct; (2) tbat there bad been a complete official abandonment or vacation of tbe road, in wbicb case, as persons who bad purchased and built adjacent thereto on tbe faith of its permanent existence, tbey bad, severally, acquired an easement — not only in tbe road, but in tbe underpass as a part of it- — witb tbe enjoyment of wbicb defendant cannot lawfully interfere.

1. Chapter 302, Public Laws of 1933, C. S., 3838 (b) (Micbie’s Code, 1939), as amended, provides tbat “all those portions of tbe public road system of tbe State, wbicb have not been taken over and placed under maintenance, or wbicb have been abandoned by tbe State Highway Commission, but which remain open and in general use by the public . . . are hereby declared to be neighborhood public roads, and tbey shall be subject to all tbe provisions of this section witb respect to tbe alteration, extension, or discontinuance thereof,” etc. (Italics supplied.) We are of opinion tbat short sections of roads, discontinued by tbe Highway Commission in tbe interest of public safety and closed to travel, are not within tbe reasonable definition of abandoned highways remaining open and in general use, and are not within tbe contemplation of tbe statute.

Of course it was not tbe purpose of this statute, where it applies, to give any private easement in tbe further use of an abandoned road, but only to continue tbe status as a public road. On this phase of tbe case, none of tbe plaintiffs could claim a greater right than tbat wbicb belongs to tbe general public. If tbe Highway Commission bad tbe power not only to substitute one section of tbe road for another but to close tbe abandoned section, a subject which we discuss more fully below, it is clear tbat in this respect plaintiffs do not have a justiciable grievance.

2. Tbe case presents no question of easement in tbe abandoned road by prescription under tbe common law, because tbe requisite twenty *279years user is lacking. It is at least doubtful whether such an easement could be acquired over defendant’s right of way by prescription under any circumstances. C. S., 434; Michie’s Code, 1939. But plaintiffs, in this aspect of their argument at least, rest their case upon the theory that there had been a complete official abandonment of the road, leaving to them the right to its continued use as persons who had purchased and built adjacent to it on the faith of its permanent existence,, citing amongst other authorities Davis v. Alexander, 202 N. C., 130, 162 S. E., 372, and Long v. Melton, 218 N. C., 94, 10 S. E. (2d), 699.

In Davis v. Alexander, supra, the facts showed continuous use of the road over Alexander’s premises for more than fifty years, and the decision might well have turned on the acquisition of a prescriptive right at common law. The case, however, may be considered as supporting the view held by the plaintiff where the factual situation admits of its application. In Long v. Melton, supra, the same principle is applied with some variation as to the extent of the persisting right of user in the vacated road.

The reasoning upon which such a right is predicated, .the source from which, where recognized, it is said to be derived, leads us to consider the propriety of reasonable limitations upon its exercise. It would be strange if a temporary public servitude, imposed in invitum, on the lands of the owner, and terminating before the prescription period had expired, could serve to take from the owner and give to another a private easement in his land which even the sovereign cannot take without compensation. At most, such a right, when recognized, must be in the nature of a continuation, ex necessitate, of the original servitude, and must be confined to the exigency of egress and ingress; and since it is in derogation of private right, it must be limited by due consideration for the owner of the soil who was not a party to any commitment made to a purchaser along the highway and did nothing to instigate his faith in its permanence. Those entitled to the continued use of an abandoned or vacated public road on such a principle are obviously not entitled to have the whole road throughout its length left to them in its original unimpaired condition, on the basis of mere convenience in reaching objectives formerly more accessible. Crowell v. Power Co., 200 N. C., 208, 156 S. E., 493. In that ease the plaintiff was nonsuited on a similar plea.

Ancient doctrines pertaining to roads of the horse and buggy days, when those roads were for the most part trails through the woods and fields, must be applied to modern conditions with caution and sound discrimination. Once, “ingress and egress” were practically all such a road afforded, and there is logic in the thought that it is all of such a doctrine which should survive. Today roads have been multiplied and *280expanded into sucb luxurious proportions that tbe expression, “once a road, always a road” — if we attach to it the significance given it by plaintiffs — will give to the abutting owner in a vacated road, if he takes all of it, an easement wholly beyond his necessities and not within the reasonable application of the doctrine.

The trend of judicial decision where this doctrine is recognized is decidedly toward confining such a right to the necessity of egress and ingress. Blanding v. Las Vegas, 52 Nev., 52, 280 Pac., 644, 68 A. L. R., 1273; Kinnear Mfg. Co. v. Beatty, 65 Oh. St., 264, 62 N. E., 341; Davis Colliery Co. v. Harding, 83 W. Va., 609, 98 S. E., 815. Here the entire road leading past plaintiffs’ premises has been left in its original condition, connecting with the relocated highway, which reaches the objectives they seek with nothing more than an added inconvenience which we do not think sufficient to constitute or support a cause of action. Crowell v. Power Co., supra.

Ins. Co. v. Carolina Beach, 216 N. C., 778, 7 S. E. (2d), 13, is not applicable to the facts of this case. There plaintiffs purchased with reference to a map showing streets, and it has long been held that in that event the municipality cannot close such streets to the use of abutting owners. The doctrine, so far as we know, has not been applied to alterations or changes in public roads forming a part of the highway system. Cameron v. Highway Com., 188 N. C., 84, 123 S. E., 465.

3. The action of the Highway Commission in ordering the underpass closed is challenged on the ground that the statute gives no express authority to discontinue an underpass once established. C. S., 3846 (y) ' (Michie’s Code, 1939), confers upon the Highway Commission the power to eliminate grade crossings. Chapter 74, Public Laws of 1929, attempted to give such express power with regard to the elimination of inadequate underpasses and the substitution of other adequate facilities. It attempted to do so, however, by amendment to the 1921 law, which had already been amended by chapter 277, Public Laws of 1925, and it may be said, at least, that the amendment so intended is difficult to allocate. We think, however, that such a power must be implied, if not, indeed, expressly covered, in the language used in chapter 46, Public Laws of 1927, section 1, which authorizes the Highway Commission not only to abandon roads where advisable, but upon relocation, to substitute one section for another. The validity of the authority thus conferred is upheld in Parker v. Highway Commission, 195 N. C., 783, 787, 143 S. E., 871, 874. We think also that the power intended to be conveyed in this section may well be supported as an exercise of the police power of the State through an appropriate agency—R. R. v. Goldsboro, 155 N. C., 356, 71 S. E., 514 — should it become necessary to invoke that doctrine.

*281Roads are laid out, built, and maintaiued primarily for tbe public convenience; but apart from tbe economies tbey promote, there is no more imperative consideration in their construction and maintenance than tbe public safety. From the testimony and inspection of tbe map which is in evidence, it appears that dangerous curves existed near tbe underpass which is pronounced “inadequate,” and apparently in the approaches thereto. We believe the closing of the underpass under the facts .of this case to be within the general powers committed to the Highway Commission under the cited laws. To state the point concisely, the Highway Commission had the right to speak and the defendant the duty to obey. Conceding that the Highway Commission had the right to substitute another section of road for that leading through and beyond the underpass, that power undoubtedly has been exercised and the elimination of the road renders the underpass useless and unavailable to the plaintiffs, either as members of the general public or as persons claiming an easement therein, however derived. The closing of the underpass under such circumstances is but a resumption on the part of the defendant of the control and use of its own property which invades no right of the plaintiffs.

4. It was proper to dismiss or dissolve the restraining order, but the dismissal of the action upon the hearing of the order to show cause is not approved by decisions relating to the present practice. Cox v. Kinston, 217 N. C., 391, 399, 8 S. E. (2d), 252, 258; Bynum v. Powe, 97 N. C., 374, 2 S. E., 170. Motions of that kind should he heard at term. Taxing of the plaintiffs with costs was therefore at least premature. In this respect the judgment must be modified. In other respects it is

Affirmed.