{ "id": 8571976, "name": "A. J. ABDALLA and wife, BETSY ABDALLA v. STATE HIGHWAY COMMISSION", "name_abbreviation": "Abdalla v. State Highway Commission", "decision_date": "1964-01-17", "docket_number": "", "first_page": "114", "last_page": "120", "citations": [ { "type": "official", "cite": "261 N.C. 114" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "96 S.E. 2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "245 N.C. 453", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612970 ], "opinion_index": 0, "case_paths": [ "/nc/245/0453-01" ] }, { "cite": "101 S.E. 2d 395", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627803 ], "opinion_index": 0, "case_paths": [ "/nc/247/0554-01" ] }, { "cite": "126 S.E. 2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "257 N.C. 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568936 ], "opinion_index": 0, "case_paths": [ "/nc/257/0507-01" ] }, { "cite": "11 N.Y.S. 694", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 4295932 ], "year": 1939, "opinion_index": 0, "case_paths": [ "/nys/11/0694-01" ] }, { "cite": "144 S.E. 796", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1928, "opinion_index": 0 }, { "cite": "266 N.W. 654", "category": "reporters:state_regional", "reporter": "N.W.", "case_ids": [ 3059607 ], "year": 1936, "opinion_index": 0, "case_paths": [ "/nd/66/0467-01" ] }, { "cite": "93 N.W. 2d 60", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 4444982 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/iowa/250/0473-01" ] }, { "cite": "263 P. 825", "category": "reporters:state_regional", "reporter": "P.", "year": 1928, "opinion_index": 0 }, { "cite": "2 A. 2d 842", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1938, "opinion_index": 0 }, { "cite": "160 S.E. 748", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1942, "opinion_index": 0 }, { "cite": "201 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626563 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/nc/201/0515-01" ] }, { "cite": "19 S.E. 2d 630", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "opinion_index": 0 }, { "cite": "221 N.C. 166", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626749 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/nc/221/0166-01" ] }, { "cite": "114 S.E. 2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "opinion_index": 0 }, { "cite": "252 N.C. 772", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625783 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/nc/252/0772-01" ] }, { "cite": "96 S.E. 2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "opinion_index": 0 }, { "cite": "245 N.C. 249", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609545 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/nc/245/0249-01" ] }, { "cite": "160 S.E. 494", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "201 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626022 ], "opinion_index": 0, "case_paths": [ "/nc/201/0440-01" ] }, { "cite": "189 S.E. 779", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "211 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626152 ], "opinion_index": 0, "case_paths": [ "/nc/211/0276-01" ] }, { "cite": "72 S.E. 2d 16", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622548 ], "opinion_index": 0, "case_paths": [ "/nc/236/0102-01" ] }, { "cite": "78 S.E. 2d 122", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "238 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608268 ], "opinion_index": 0, "case_paths": [ "/nc/238/0364-01" ] } ], "analysis": { "cardinality": 748, "char_count": 16189, "ocr_confidence": 0.415, "pagerank": { "raw": 6.98306204923167e-07, "percentile": 0.9656254090489446 }, "sha256": "f5503a6406b79e134cf3cef52ebf7ea5e27b53c5f9ce0d1c4c3c8b706987e13c", "simhash": "1:378ec126aad4cc52", "word_count": 2720 }, "last_updated": "2023-07-14T21:53:45.776989+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "A. J. ABDALLA and wife, BETSY ABDALLA v. STATE HIGHWAY COMMISSION." ], "opinions": [ { "text": "Moore, J.\nPlaintiffs assign as error the action of the court in entering the judgment of nonsuit.\nThe action was nonsuited on the theory that it is barred by the statute of limitations. Conceding for the purpose of this appeal, but not -deciding, that the court erred in its ruling -on the plea in bar, we nevertheless hold that -the judgment must be affirmed for it clearly appears from the record that the defendant is entitled to a dismissal of the action as a matter of law. The rights of the parties are fixed and controlled by the \u201cRight of Way Agreement\u201d and defendant has accorded to plaintiffs all the rights to which they are entitled thereunder. It is not after the manner of -appellate courts to' upset judgments when the action of the trial court, even if partly erroneous, could by no possi-ibility injure the 'appellant. Justice v. Mitchell, 238 N.C. 364, 78 S.E. 2d 122; Wells v. Clayton, 236 N.C. 102, 72 S.E. 2d 16; Munday v. Bank, 211 N.C. 276, 189 S.E. 779; Bank v. McCullers, 201 N.C. 440, 160 S.E. 494.\nIt is generally recognized that the owner of land abutting a highway has a right \u00a1beyond that which is enj oyed by the general public, a special right of easement in the public road for access purposes, and this iis a property right which cannot be damaged or taken from him without due compensation. Hedrick v. Graham, 245 N.C. 249, 96 S.E. 2d 129; Williams v. Highway Commission, 252 N.C. 772, 114 S.E. 2d 782; Sanders v. Smithfield, 221 N.C. 166, 19 S.E. 2d 630; Hiatt v. Greensboro, 201 N.C. 515, 160 S.E. 748; State v. Department of Highways, 8 S. 2d 71 (La. 1942); Breinig v. County of Alleghany, 2 A. 2d 842 (Penn. 1938); Genazzi v. Marin County, 263 P. 825 (Cal. 1928). But a landowner is not entitled, as against the .public, to access to his land at all points in the boundary between it .and the highway, although entire access \u00a1cannot be cut off. It he has free and convenient access to his property, .and his means of ingress and egress are not substantially interfered with -by the public, he has no cause of complaint. Genazzi v. Marin County, supra; Warren v. Iowa State Highway Commission, 93 N.W. 2d 60 (Iowa 1958); King v. Stark County, 266 N.W. 654 (N.D. 1936); State Highway Board v. Baxter, 144 S.E. 796 (Ga. 1928); Gilsey Buildings, Inc. v. Incorporated Village, 11 N.Y.S. 694 (1939).\nIn Barnes v. Highway Commission, 257 N.C. 507, 126 S.E. 2d 732, plaintiff owned land .abutting the highway. On his land were three 'business establishments \u2014 a service \u00a1station, a bulk oil plant and a frozen custard place. The Highway Commission constructed curbing along the edge of the highway at certain points in front of these establishments and left \u00a1spaces for ingress and egress. The opinion, delivered by Bobbitt, J., \u00a1states the following principle of law (at p. 517): \u201c \u2018While entire access may not be out off, an owner is not entitled, as \u25a0against the public, to access to his land at all points in the boundary \u00a1between \u00a1it and the highway; if he hais free and convenient access to. his property and to the improvements thereon, and his means of ingress and egress are not substantially interfered with by the public, he has no cause of complaint.\u2019 39 C.J.S., Highways, \u00a7 141; . . .\u201d The opinion concludes that plaintiff \u201cis entitled to recover compensation on account of injury to . . . his . . . property to the extent, if any, such \u25a0curbing substantially impairs free and convenient access thereto and the improvements thereon.\u201d (Emphasis added).\nThe principles stated in the two preceding paragraphs relate to a landowner\u2019s common-law right \u00a1of access. In the instant case plaintiffs do not, and cannot, rely on the common-law right of access; such rights a\u00ae they have are embo'died in amid limited by the \u201cRight of Way Agreement.\u201d The agreement provides that plaintiffs \u201cshall have no right of access to the highway constructed on said right-of-way except . . . .\u201d Thus, the parties knew at the time of making the contract that the highway to be constructed was one of limited and restricted access and they were contracting with respect to the question of access. Yet plaintiffs contend they reserved under the contract the right of direct access to all points along the service road and ramp opposite their property, which is a greater right than they would have 'had at common law had the contract been silent as to access. Under the terms of the contract plaintiffs first gave up all right of access and then by way of exception reserved a specific right of access to the highway \u201cby way of service roads and ramps.\u201d Defendant has made available to plaintiffs exactly what the contract calls for, access from plaintiffs\u2019 land to the highway by way of service roads and ramps.\nEasements of right-of-way acquired by the Highway Commission for public highways are, under existing law, so extensive in nature and the control exercised by the Commission so exclusive that the servient estate in the land, for all practical purposes, amounts to 'little more than a right of reverter in the event the State\u2019s easement is abandoned. It is for this reason that an abutting landowner\u2019s right of access to a public highway is generally defined as an easement, even though he may own the fee in the land over which the highway runs. Hence, a right of access to a public highway is an easement appurtenant to land. Williams v. Highway Commission, supra; Hedrick v. Graham, supra. The Highway Commission is in effect the servient owner and has the right to locate the access route under the general rule that where an easement is granted or reserved in general terms which do not fix its location, the owner of the servient estate has the right in the first instance to designate the location of such easement, subject to the limitation that he exercise such right in a reasonable manner and with due regard to the rights of the owner of the easement. Andrews v. Lovejoy, 247 N.C. 554, 101 S.E. 2d 395; Cooke v. Electric Membership Corp., 245 N.C. 453, 96 S.E. 2d 351. Indeed, the Highway Commission, as -trustee for the public, has greater -right of control than a private servient owner.\nPlaintiffs -do not complain that (they have been denied access; they complain that they iare not permitted to designate and locate the route of access. It is their position that the word \u201chighway,\u201d >as .used in the \u201cRight of Way Agreement,\u201d refers to the main highway -and not to service roads and ramps, -that their access to the main highway is re-stari-cted aod limited to access \u201cby w-ay of service road\u00ae 'aod ramps,\u201d foot, ais to the service road aod ramp oo the right-of-way oear aod parallel to their .boundary, direct access thereto is oot limited by contract or otherwise. However, according to the map .introduced by plaintiffs \u25a0and the infoimation and explanation thereon .aod attached \u00a1thereto, the Highway Commission has made available to plaintiffs direct access to all of the service road opposite their boundary except a very short segment at the junction of the service road aod ramp. The ramp has a specific purpose 'and function. It is not established for the accommodation of abutting landowners; it is for the interchange of traffic between two heavily \u00a1travelled highways (one overpassing the other). It is inf-deed the junction or joinder of the two highways. For all practical purposes it is a part of the main highway within the meaning of the word \u201chighway\u201d as set out in the \u201cRight of Way Agreement.\u201d Under the circumstances clearly disclosed \u00a1by plaintiffs\u2019 evidence, we hold as a matter of law that plaintiffs\u2019 access to the service road is free and convenient \u00a1and defendant has not substantially interfered therewith, and under the contract between the piarties plaintiffs -are not entitled to direct access -to the ramp.\nAffirmed.", "type": "majority", "author": "Moore, J." } ], "attorneys": [ "Levinson & Levinson and Knox V. Jenkins, Jr., for plaintiffs..", "Attorney General Bruton, Assistant Attorney General Harrison Lewis, Trial Attorney Edwin S. Preston, Jr., Norman C. Shepard and Robert A. Spence for defendant." ], "corrections": "", "head_matter": "A. J. ABDALLA and wife, BETSY ABDALLA v. STATE HIGHWAY COMMISSION.\n(Filed 17 January 1964.)\n1. Appeal and Error \u00a7 40\u2014\nWhere as a matter of law plaintiff is not entitled ito recover on the record, judgment dismissing the action, even though entered on an erroneous ground, will not he disturbed.\n2. Eminent Domain \u00a7 2; Highways \u00a7 5\u2014\nAt common law the owner of land abutting a highway, while not entitled to access 'at all points along the 'boundary between his land and the highway, has a special right of easement for access purposes, and substantial interference with this free and convenient access to the highway is a \u201ctalcing\u201d of a property right for which he may recover just compensation.\n3. Same\u2014\nThe common law right of access of the owner of property abutting a highway does not apply when the owner has conveyed' a right of way to the Highway Commission, since in such instance the respective rights o\u00ed the panties must be ascertained from the construction of the right of way agreement.\n4. Same; Easements \u00a7 7\u2014\nWhere the Highway Commission purchases the right of way from an abutting -owner, with provision that the -owner -should have access to the highway, th-e Highway Commission is in effect th-e -servient owner with respect to -the right -of acees-s, and it has the right to locate the access road under the general rule that, where the grant does not fix the 1-oeatiom of an easement, the owner of the servient estate has the right in the first -instance itio designate the location, subject to the limitation that it must -exercise the right in -a reasonable manner with due regard to the lights -of the -abutting -owner.\n5. Same\u2014 Restricted access to service road and denial of access along interchange ramp held in conformity with right of way agreement.\nThe right of way agreement in suit provided that the owners of abutting land -should have \u201cno right of access to -the highway\u201d except by way of -service roads and ramps built -in couneotion with -the project. The project was an overpass of -one highway -over another with connecting ramps. The Commission provided plaintiffs access -at -the -point where -a service road wa-s -adjacent -to plaintiffs\u2019 property, from which point pl-adnitiffs had access to the highway by way of a ramp, but completely denied plaintiffs direct access :to the ramp. Held: Plaintiffs were giv-en -reasonable access to the highways by way of the service road and ra-mp in conformity with -the right -of way agreement, and plaintiffs were no-t entitled to- additional compensation on the ground that the denial of access to -the ramp at all points contiguous to their property was -an additional \u201ctailing.\u201d\nAppeal by plaintiffs from Braswell, J., May 1963 Session of JohN-ston.\nProceeding for -compensation -f-or the alleged taking -by eminent domain of an easement of access to a public highway.\nIn 1956 defendant, State Highway Commission, in furtherance of a project ito -construct -that portion of Interstate Highway 95 -in the vicinity of its proposed intersection with U. S. Highway 70A near Selma, North Oar-alma, negotiated with -the h-eiais at law of Tom Abdalla, including male -plaintiff, for the purchase of -an easement of right-of-way on -and -over -a portion of -a -tract o-f land owned by them. As -a result of the negotiations, the iheirs at law -of To-m Abdalla, and their spouses, on 23 October 1956 entered into a \u201cRight of Way Agreement,\u201d in writing, with defendant, conveying the latter an easement of -right-of-way on -and over -approximately 14 acres -of land, for which defendant paid them $15,000. There remained to grantors adjoining the right-of-way 3.67 -acres which they conveyed to plaintiffs herein.\nThe \u201cRight of Way Agreement\u201d provides that grantors \u201cand their \u00a1heirs amid 'assigns shall have no right of access to tire highway constructed on said right-of-way except by way of service roads and ramps \u2019built in 'connection with this project in the vicinity of survey station 0+00\u201d (the \u00a1intersection of Interstate 95 \u00a1and Highway 70 A).\nThe highway project in question, \u00a1a link of Interstate 95, was completed 17 December 1959. Interstate 95 overpasses Highway 70A and access from one to the other is \u00a1by interchange ramps.\nAccording to