NORTH CAROLINA STATE HIGHWAY COMMISSION
v.
ASHEVILLE SCHOOL, INC.
No. 24.
Supreme Court of North Carolina.
May 13, 1970.*913 Robert Morgan, Atty. Gen., Harrison Lewis, Deputy Atty. Gen., and I. B. Hudson, Jr., Trial Attorney, Raleigh, for the State.
Bennett, Kelly & Long, Asheville, for defendant appellant.
SHARP, Justice.
Defendant bases its right of appeal to this Court upon the premise that plaintiff's taking of the .074-acre tract in dispute involves a substantial constitutional question. State v. Colson, 274 N.C. 295, 163 S.E.2d 376, cert. denied, 393 U.S. 1087, 89 S. Ct. 876, 21 L. Ed. 2d 780. The appeal presents this question: In building a controlled-access highway, is the State Highway Commission empowered to condemn land reasonably necessary to furnish access to private property which would otherwise be landlocked by the construction?
An unfortunate, but unavoidable, consequence of the construction of limited-access highways is the destruction of the egress and ingress of abutting landowners. However, by G.S. § 136-19, the State Highway Commission is authorized to acquire by purchase, donation, or condemnation such land and interests in land "as it may deem necessary and suitable for road construction, maintenance, and repair, and the necessary approaches and ways through."
In the establishment of controlled-access facilities the Highway Commission is also granted leave to condemn private property for "service or frontage roads." G.S. § 136-89.52. Such a road is defined as "a way, road or street which is auxiliary to and located on the side of another highway, road or street for service to abutting property and adjacent areas and for the control of access to such other highway, road or street." G.S. § 136-89.49. In addition, G.S. 136-18(16) authorizes the Highway Commission to acquire title to land for the purpose of exchanging it for other realty to be used in establishing highways or removing dangerous obstructions at intersections.
It is elementary law that the Highway Commission can condemn property only for a public purpose and that it cannot take the land of one property owner for the sole purpose of constructing a road for the private use of another. State Highway Commission v. Batts, 265 N.C. 346, 144 S.E.2d 126; City of Charlotte v. Heath, 226 N.C. 750, 40 S.E.2d 600. Any highway condemnation proceeding, however, may incite controversy as to whether the proposed road will serve a public or private purpose. Highway Commission v. Thornton, 271 N.C. 227, 156 S.E.2d 248; Highway Commission v. Batts, supra. This question, when the facts are determined, is one of law for the courts. Redevelopment *914 Commission of Greensboro v. Security National Bank, 252 N.C. 595, 114 S.E.2d 688.
Plaintiff did not purport to condemn the access road into the Mashburn property under G.S. § 136-18(16). It retains title to the .074-acre tract in question, which is shown on the official map of Project No. 8.19095 as part of the new right of way of the Sand Hill Road. Thus the constitutionality of G.S. § 136-18(16), debated in defendant's brief, is not at issue on this appeal. The "Mashburn road" comes within the statutory definition of a frontage road. G.S. § 136-89.49. As such it would also be available to provide access to defendant's abutting property if the nature of the terrain permits. However, at the present time it serves only one individual's land, and the question is whether such a road constitutes a public or a private use.
Defendant, contending that the road serves only a private use relies upon State Highway Commission v. Batts, supra, to prevent the taking. The facts in Batts, however, bear no relation to this case. In Batts, plaintiff sought to condemn land for Project No. 5.322, a secondary road designed to serve five farm properties on which were four houses. The occupants were all members of the Batts family. It was to begin at the boundary of another secondary road and run 3,316 feet to a dead end. In a four-to-three decision, this Court held that the Batts road would serve only a private purpose and proscribed the condemnation. Project 5.322 was entirely a Batts project, instigated by the written request of Mr. and Mrs. Batts. The Mashburn road is auxiliary to, and necessitated by, the construction of Interstate Highway No. 40. It is an incidental part of a comprehensive and complex highway project of national significance.
Even though the principal use of the Mashburn drive is to provide access to private property, the public interest required its establishment, and the public purpose for which the land was taken continues to be accomplished. Redevelopment Commission v. Bank, supra. The applicable rule is well stated in 26 Am.Jur.2d Eminent Domain §§ 32, 33 at pages 681, 684 (1966): "[T]he exercise of eminent domain for a public purpose which is primary and paramount will not be defeated by the fact that incidentally a private use or benefit will result which will not of itself warrant the exercise of a power. * * * The controlling question is whether the paramount reason for the taking of the land to which objection is made is the public interest, to which benefits to private interests are merely incidental, or whether, on the other hand, the private interests are paramount and controlling and the public interests merely incidental."
In Luke v. Massachusetts Turnpike Authority, 337 Mass. 304, 149 N.E.2d 225 (1958), a condemnation proceeding equivalent to the instant case, the Supreme Judicial Court of Massachusetts applied the foregoing rule to an access route such as the Mashburn way. It concluded that its acquisition was merely one incident of the huge undertaking of constructing a turnpike across the State and that it "would be closing the eyes to reality" to say that such an access road served no public purpose. "Procuring an easement and creating a right of way for the benefit of parcels of land incidentally deprived of all or of some means of access to an existing way are but a by-product of that undertaking." Id. at 309, 149 N.E.2d at 228.
In construing a statute containing language almost identical with that of G.S. § 136-89.49(3) and G.S. § 136-89.52, the Supreme Court of Indiana (relying upon Luke v. Massachusetts Turnpike Authority, supra) held that a service road alleviating "a landlocked condition" caused by the construction of a freeway constituted a public use "whether such road served one property owner or many." Andrews v. State, 229 N.E.2d 806 (Ind.1967). Incidentally, the Court noted that "if the State of Indiana is not in a position to minimize the damages paid to land owners, then the *915 cost of Interstate Highways would soar astronomically and Indiana would be dotted abnormally with land-locked real estate." Id. at 810.
Reason supports the "by-product" rationale, and it has been adopted by the majority of courts deciding the question here presented. The cases are collected and cited in the opinion of the Court of Appeals. Highway Commission v. School, 5 N.C. App. 684, 691, 169 S.E.2d 193, 197. See also Brown v. United States, 263 U.S. 78, 44 S. Ct. 92, 68 L. Ed. 171; Pitznogle v. Western Md. R. R. Co., 119 Md. 673, 87 A. 917; Smouse v. Kansas City S. Rlw. Co., 129 Kan. 176, 282 P. 183.
We hold that the taking of defendant's.074-acre tract to provide access to the Mashburn land, landlocked by the construction of Interstate Highway No. 40, was for a public purpose and that G.S. § 136-19, G.S. § 136-89.49, and G.S. § 136-89.52 authorized the condemnation. This decision renders moot defendant's assignments of error involving the questions of waiver and estoppel by judgment.
The decision of the Court of Appeals is
Affirmed.
MOORE, J., did not participate in the consideration or decision of this case.