{ "id": 8566991, "name": "DR. T. C. SMITH COMPANY, INC., a North Carolina Corporation v. NORTH CAROLINA STATE HIGHWAY COMMISSION", "name_abbreviation": "Dr. T. C. Smith Co. v. North Carolina State Highway Commission", "decision_date": "1971-07-30", "docket_number": "No. 107", "first_page": "328", "last_page": "337", "citations": [ { "type": "official", "cite": "279 N.C. 328" } ], "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": "109 S.E. 2d 219", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1959, "pin_cites": [ { "page": "226" } ], "opinion_index": 0 }, { "cite": "250 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623661 ], "weight": 2, "year": 1959, "pin_cites": [ { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/nc/250/0378-01" ] }, { "cite": "134 S.E. 2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "261 N.C. 316", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573094 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/261/0316-01" ] }, { "cite": "126 S.E. 2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "257 N.C. 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568936 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/257/0507-01" ] }, { "cite": "155 S.E. 2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "787" } ], "opinion_index": 0 }, { "cite": "271 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562278 ], "year": 1967, "pin_cites": [ { "page": "19" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0001-01" ] }, { "cite": "140 S.E. 2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "380" } ], "opinion_index": 0 }, { "cite": "263 N.C. 677", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572593 ], "year": 1965, "pin_cites": [ { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0677-01" ] }, { "cite": "139 S.E. 2d 904", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "906" } ], "opinion_index": 0 }, { "cite": "263 N.C. 622", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572302 ], "year": 1965, "pin_cites": [ { "page": "624" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0622-01" ] }, { "cite": "136 S.E. 2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "682" } ], "opinion_index": 0 }, { "cite": "262 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566179 ], "year": 1964, "pin_cites": [ { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0169-01" ] }, { "cite": "96 S.E. 2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "245 N.C. 249", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609545 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/245/0249-01" ] }, { "cite": "134 S.E. 2d 81", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "261 N.C. 114", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571976 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/261/0114-01" ] } ], "analysis": { "cardinality": 713, "char_count": 18334, "ocr_confidence": 0.553, "pagerank": { "raw": 1.9192472505153402e-07, "percentile": 0.7327226413586275 }, "sha256": "e802928a5c1382fc765949a62c6bd47d55dd52538f8984dbc3548a4a99587940", "simhash": "1:89f9158b7eb59f54", "word_count": 2934 }, "last_updated": "2023-07-14T15:36:58.436463+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DR. T. C. SMITH COMPANY, INC., a North Carolina Corporation v. NORTH CAROLINA STATE HIGHWAY COMMISSION" ], "opinions": [ { "text": "BOBBITT, Chief Justice.\n\u201c(T)he owner of land abutting a highway has a right beyond that which is enjoyed by the general public, a special right of easement in the highway for access purposes. This right of access is an easement appurtenant which cannot be damaged or taken from him without compensation. Abdalla v. Highway Commission, 261 N.C. 114, 134 S.E. 2d 81; Hedrick v. Graham, 245 N.C. 249, 96 S.E. 2d 129. This easement consists of the right of access to the particular highway upon which the land abuts.\u201d Snow v. Highway Commission, 262 N.C. 169, 173, 136 S.E. 2d 678, 682 (1964). Accord, Highway Commission v. Farmers Market, 263 N.C. 622, 624, 139 S.E. 2d 904, 906 (1965); Wofford v. Highway Commission, 263 N.C. 677, 681, 140 S.E. 2d 376, 380 (1965); Highway Commission v. Nuckles, 271 N.C. 1, 19, 155 S.E. 2d 772, 787 (1967).\nIf afforded reasonable access to the highway on which his property abuts, the owner is not entitled to compensation merely because of circuity of travel to reach a particular destination. Snow v. Highway Commission, supra; Highway Commission v. Farmers Market, supra; Barnes v. Highway Commission, 257 N.C. 507, 126 S.E. 2d 732 (1962); Moses v. Highway Commission, 261 N.C. 316, 134 S.E. 2d 664 (1964); Wofford v. Highway Commisison, supra; Highway Commission v. Nuckles, supra. However, defendant completely cut off and totally denied plaintiff\u2019s abutter\u2019s rights of direct access to Hanover Street by including it within controlled-access Highway 191.\nUnder G.S. 136-89.53, when an existing street is included within a \u201ccontrolled-access facility,\u201d the owner of land abutting on such street \u201cshall be entitled to compensation for the taking of or injury to their easements of access.\u201d In consequence of the denial of plaintiff\u2019s abutter\u2019s rights of access and the blocking and dead-ending of Wilmington Street at its intersection with Highway 191, the only available access to and from any portion of plaintiff\u2019s property and \u201ccontrolled-access\u201d Highway 191 is by circuitous travel over residential streets, namely, Wilmington Street, Southwick Lane, Seven Oaks Drive, and Westwood Place.\nIn the judgment it tendered (which the court declined), defendant conceded, as it does now, that plaintiff is entitled to compensation for injury to the portion of its property between the \u201cbank\u201d and \u201ccontrolled-access\u201d Highway 191. It denied then, as it does now, that plaintiff is entitled to compensar tion for injury to the warehouse-office-parking area portion of its property. It contends this area should be treated as a separate tract to which plaintiff has reasonable access notwithstanding the blocking and dead-ending of Wilmington Street.\nIt may be conceded, arguendo, there would be merit in defendant\u2019s contention if the only property owned by plaintiff were the portion east of the \u201cbank\u201d \u2014 where the warehouse-office-parking area is situated \u2014 which does not abut Hanover Street. In fact, this portion is an undefined part of a 13-acre tract which abuts Hanover Street (now \u201ccontrolled-aceess\u201d Highway 191) along a frontage of 711 feet.\nAlthough plaintiff used Wilmington Street for access to Hanover Street from its warehouse-office-parking area, the portion of its property which abutted Hanover Street was available as a means of access thereto in the event access thereto by Wilmington Street was denied. The availability of heavy earth-moving equipment, and present methods and practices for grading and constructing ramps, gave assurance that plaintiff could provide access from the warehouse-office-parking area portion of its property to and across the portion of its property which abutted Hanover Street. Difficulties encountered and expense required to provide such access are factors for consideration by the jury in determining what compensation plaintiff is entitled to recover for injury done to its entire tract by the denial of its abutter\u2019s rights of access to Hanover Street.\nDefendant relies largely on Barnes v. Highway Commission, 250 N.C. 378, 109 S.E. 2d 219 (1959), and on Highway Commission v. Farmers Market, supra. These cases are factually distinguishable.\nIn Barnes, the area comprising Tract No. 2 (24.22 acres) was east of Knollwood Street and north of the Easement (a 40-foot private easement previously conveyed) and the area comprising Tract No. 3 (6.72 acres) was east of Knollwood Street and south of the Easement. The right-of-way of the \u201ccontrolled-access\u201d highway (Winston-Salem East-West Expressway, 1-40) included a portion of Tract No. 2 but no part of Tract No. 3 or the Easement. In accordance with the Highway Commission\u2019s contention, the decision of this Court was that Tract No. 2 and Tract No. 3 were to be considered as a unit in the assessment of damages and offsetting benefits. As noted by defendant, the opinion states: \u201cThere is no single rule or principle established for determining the unity of lands for the purpose of awarding damages or offsetting benefits in eminent domain cases.\u201d The opinion includes a comprehensive review of general principles pertinent to such determination. This excerpt from the opinion is pertinent: \u201cThe law will not permit a condemnor or a condemnee to \u2018pick and choose\u2019 segments of a tract of land, logically to be considered as a unit, so as to include parts favorable to his claim or exclude parts unfavorable.\u201d 250 N.C. at 386, 109 S.E. 2d at 226.\nIn Highway Commission v. Farmers Market, supra, the action was instituted by the Highway Commission to acquire property rights necessary for the construction of a portion of the Belt Line around Raleigh, a controlled-access highway. The north line of Farmers\u2019 79-acre tract abutted Race Track Road which provided access to U. S. 1-A. The inclusion of Race Track Road within the controlled-access highway denied Farmers\u2019 access thereto and access to U. S. 1-A from the northern portion of its property.\nThe northern and southern portions of Farmers\u2019 property were separated by a spur track extending from the property of the Sunshine Biscuit Company to the right-of-way of the Seaboard Air Line Railroad. This Court held Farmers was entitled to compensation for the injury to the northern portion of its property but not to the southern portion thereof. A consideration of the factual situation dispels any impression that the decision supports defendant\u2019s contention in the present case. A general description of the 79-acre tract, referred to as having the appearance of a reversed \u201cL,\u201d is stated below.\nThe 79-acre tract was bounded on the east by the right-of-way of the Seaboard Air Line Railroad; on the south by Crab-tree Creek; on the west, for a distance of 1383.21 feet from its southwest corner to the property of Sunshine Biscuit Company, by U. S. 1-A; thence east, with the southern line of the Sunshine property, 816.36 feet; thence north, with the east lines of the properties of Sunshine and other owners, to the Race Track Road. No part of the 79-acre tract north of the southern line of the Sunshine property abutted U. S. 1-A. The only available access from the northern portion of Farmers\u2019 property to U. S. 1-A was by way of the southern portion of its property. Such access would require the construction of a road 3000 feet or more in length. Obviously, the southern portion of Farmers\u2019 property was not injured by the denial of access to U. S. 1-A over former Race Track Road for the simple reason that the southern portion had direct abutter\u2019s access to U. S. 1-A along a frontage of 1383.21 feet.\nAlthough each has been considered, we deem it unnecessary to discuss defendant\u2019s exceptions to portions of Judge- Ervin\u2019s findings of fact. Suffice to say, the judgment is supported by the stipulated facts, findings of fact based on uncontradicted evidence and findings of fact to which no exception was noted.\nFor the reasons stated, the judgment entered by Judge Er-vin is affirmed.\nAffirmed.", "type": "majority", "author": "BOBBITT, Chief Justice." } ], "attorneys": [ "Bennett, Kelly & Long, by Robert B. Long, Jr., for plaintiff appellee.", "Attorney General Morgan, Deputy Attorney General White and Assistant Attorney General McDaniel for defendant appellant." ], "corrections": "", "head_matter": "DR. T. C. SMITH COMPANY, INC., a North Carolina Corporation v. NORTH CAROLINA STATE HIGHWAY COMMISSION\nNo. 107\n(Filed 30 July 1971)\n1. Eminent Domain \u00a7 2 \u2014 \u25a0 land abutting highway \u2014 landowner\u2019s right of access\nThe owner of land abutting a highway has a special right of easement in the highway for access purposes which cannot be damaged or taken from him without compensation.\n2. Eminent Domain \u00a7 2\u2014 access to highway \u2014 circuity of travel\nIf afforded reasonable access to the highway on which his property abuts, the owner is not entitled to compensation merely because of circuity of travel to reach a particular destination.\n3. Eminent Domain \u00a7 2\u2014 denial of abutter\u2019s rights of access \u2014 compensation for injury to entire tract\nIn this inverse condemnation proceeding, plaintiff' is entitled to recover compensation for injury to its entire 13-acre tract of land by reason of the denial of its abutter\u2019s rights of access to an existing highway when the highway was made a part of a controlled-access facility, not just for injury to the vacant portion of the tract directly abutting the highway which is on a level 25-30 feet lower than the remaining portion of the tract in use for a warehouse-office building and parking area.\nAppeal by defendant from Ervin, /., October 19, 1970 Session of Buncombe Superior Court, transferred for initial appellate review by the Supreme Court under General Order of July 31, 1970, entered pursuit to G.S. 7A-31(b) (4).\nInverse condemnation action under G.S. 136-111.\nPlaintiff bases its claim for compensation on G.S. 136-89.53 (a codification of Section 6, Chapter 993, Session Laws of 1957) which, in pertinent part, provides: \u201cThe Commission may designate and establish controlled-access highways as new and additional facilities or may designate and establish an existing street or highway as included within a controlled-access facility. When an existing street or highway shall be designated as and included within a controlled-access facility the owners of land abutting such existing street or highway shall be entitled to compensation for the taking of or injury to their easements of access.\u201d (Our italics.)\nOn July 1, 1968, plaintiff owned in fee simple the tract of land described in Paragraph 3 of the complaint, subject to (1) a deed of trust, and (2) a pre-existing easement for the right-of-way of Hanover Street. The location of plaintiff\u2019s property, the location of improvements thereon, the location of the preexisting easement, the location of the controlled-access facility, and the location of the several streets referred to below, are shown on maps identified as plaintiff\u2019s Exhibit A and as defendant\u2019s Exhibit I. The portion of defendant\u2019s Exhibit I necessary to an understanding of the questions presented is reproduced on the map filed herewith.\nPrior to July 1, 1968, Hanover Street, then a two-lane highway, was part of the State Highway System. It was designated N. C. Highway 191 and maintained by defendant. Plaintiff\u2019s property abutted 711 feet thereon. As an abutting property owner, plaintiff had full rights of access to and from Hanover Street.\nPlaintiff acquired the property in 1962 under a deed in which it was described and conveyed as a single tract. Plaintiff constructed thereon a brick warehouse and office building, which face Hanover Street (Highway 191), and a parking area which is visible from Hanover Street. Prior to July 1, 1968, the land between the warehouse-office-parking area and Hanover Street was vacant and had not been put to any particular use. However, it had been improved by the construction of drain tiles and by filling with dirt to make it approximately on grade with Hanover Street.\nOn July 1, 1968, defendant, in the construction of State Highway Project 8.1904801, fully controlled the entirety of plaintiff\u2019s frontage on Hanover Street by the erection of a controlled-access chain link fence along the boundary between plaintiff\u2019s unencumbered land and the portion of plaintiff\u2019s land which was subject to the pre-existing easement for Hanover Street. The fence also blocked and dead-ended Wilmington Street at its intersection with Highway 191. Plaintiff\u2019s abutter\u2019s rights of access to Highway 191 were totally denied by the construction of the fence along the controlled-access line.\nAs part of the project, defendant constructed two public streets, called Seven Oaks Drive and Southwick Lane, which connect Westwood Place with Wilmington Street. Seven Oaks Drive and Southwick Lane, the newly constructed streets, and Westwood Place and Wilmington Street, are public streets of Asheville and are maintained by Asheville. No business establishment, other than plaintiff\u2019s wholesale drug business, is located on any of these streets. Numerous residences are located thereon.\nNo service or frontage road was constructed by defendant across any portion of plaintiff\u2019s property. Present access to plaintiff\u2019s property requires travel in excess of five-tenths of a mile from the interchange at the intersection of Highway 191 and Haywood Road, along Asheville streets including Haywood Road, Westwood Place, Seven Oaks Drive, Southwick Lane and Wilmington Street. The distance from blocked and dead-ended Wilmington Street at its intersection with Highway 191 by way of Highway 191, ramps to Haywood Road and the route from there by way of city streets to plaintiff\u2019s property is more than a mile.\nPrior to July 1, 1968, \u201c(b)esides Hanover Street, the subject property was served almost entirely by Wilmington Street . . . . \u201d When plaintiff\u2019s abutter\u2019s rights of access to Highway 191 were denied and Wilmington Street at its intersection with Highway 191 was blocked and dead-ended, plaintiff was forced to use what was then \u201ca little dirt road\u201d going back into Westwood Place as its only means of access.\n\u201c(T)here is a bank right at the edge of the paved parking area going down to the lower level . \u201d The lower level is vacant land and \u201cis generally level with Hanover Street.\u201d The land on which the warehouse-office-parking area is situated is 25 or 30 feet higher than the vacant land. This plateau comprises approximately seven or eight acres of plaintiff\u2019s 13-acre tract, the remaining vacant land being on the level of Hanover Street and abutting thereon.\nWilmington Street extends along plaintiff\u2019s north property line. The record is silent as to the grade of Wilmington Street as it extends from the warehouse-office-parking area to where it now dead-ends at controlled-access Highway 191. Too, the record is silent as to the difference in elevation between Wilmington Street and plaintiff\u2019s property abutting thereon at different locations along plaintiff\u2019s property line.\nThere was no stipulation, finding or testimony as to the distance from the portion of plaintiff\u2019s property (unencumbered by pre-existing easement) which abutted former Highway 191 back to the \u201cbank\u201d referred to above. Defendant\u2019s Exhibit I indicates it was drawn according to a scale of one inch for each one hundred feet. Applying this scale, the distance appears to be in excess of 350 feet.\nSince July 1, 1968, Highway 191 has been a eontrolled-access facility serving as a connector between Interstate Highways 26 and 40 and U. S. Highways 19 and 23.\nThe facts narrated above are based on the stipulations, findings of fact to which no exception was.noted, or uncontra-dicted evidence.\nIn accord with motions' therefor by plaintiff and by defendant, the court conducted a hearing pursuant to G.S. 136-108 for determination of all issues raised by the pleadings other than the issue of damages.\nIn its answer, defendant denied plaintiff\u2019s allegations except as \u201cadmitted in its Further Answer.\u201d In its further answer, defend\u00e1nt alleged facts not inconsistent with those stated above. As a basis of its denial of plaintiff\u2019s right to compensation, defendant alleged: \u201c(T)he property described in the Complaint has abutter\u2019s rights of access to both Wilmington Street and Southwick Lane and, as aforesaid, by public roads is afforded reasonable access to the public highway systems; that the dead-ending of Wilmington Street and the control of existing abutter\u2019s access rights to previously existing Hanover Street was done in the exercise of the police power of the State Highway Commission for the safety, health and welfare of the public and no compensation is due for said exercise of the police powers nor for any circuity of travel necessary to reach a particular destination to and from the property described in the Complaint.\u201d\nAfter hearing the court considered the pleadings; the stipulations, which incorporated the maps; interrogatories of plaintiff and defendant\u2019s answers thereto; and the testimony of Frank Stacey Smith, an officer of plaintiff. The court declined to sign the judgment tendered by defendant but noted that \u201csome of the proposed findings of fact\u201d set forth therein \u201care substantially similar to those found in the judgment tendered by plaintiff and signed by the court.\u201d\nThe adjudicatory portion of the judgment provides:\n\u201cIt Is Now, Therefore, Ordered, Adjudged and Decreed as follows:\n\u201c1. That the plaintiff\u2019s property right of abutter\u2019s access to and from North Carolina Highway 191, Hanover Street, and the plaintiff\u2019s abutting property was taken by the North Carolina State Highway Commission on July 1, 1968, by the designation and inclusion of North Carolina Highway 191, an existing street and highway to which the plaintiff had full abutter\u2019s rights of access within controlled-access facility built under Project No. 8.1904801 and that the plaintiff is entitled to just compensation for the taking of and injury to said easement of access. That the only issue for a jury to pass on in a trial of said action is the difference between the fair and reasonable market value of the plaintiff\u2019s tract of land and the improvements located thereon immediately prior to the taking of the plaintiff\u2019s easement of access as heretofore set out on July 1, 1968, and the fair and reasonable market value of plaintiff\u2019s tract of land and the improvements located thereon immediately after the taking of plaintiff\u2019s easement of access to North Carolina Highway 191, Hanover Street.\u201d\nDefendant excepted and appealed.\nBennett, Kelly & Long, by Robert B. Long, Jr., for plaintiff appellee.\nAttorney General Morgan, Deputy Attorney General White and Assistant Attorney General McDaniel for defendant appellant." }, "file_name": "0328-01", "first_page_order": 356, "last_page_order": 365 }