A. J. ABDALLA and wife, Betsy Abdalla,
v.
STATE HIGHWAY COMMISSION.
No. 534.
Supreme Court of North Carolina.
January 17, 1964.*83 Levinson & Levinson and Knox V. Jenkins, Jr., Smithfield, for plaintiffs.
T. W. Bruton, Atty. Gen., Harrison Lewis, Asst. Atty. Gen., Edwin S. Preston, Jr., Trial Atty., Norman C. Shepard and Robert A. Spence, Smithfield, for defendant.
MOORE, Justice.
Plaintiffs assign as error the action of the court in entering the judgment of nonsuit.
The 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 "Right of Way Agreement" 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 possibility injure the appellant. Justice v. Mitchell, 238 N.C. 364, 78 S.E.2d 122; Wells v. Clayton, 236 *84 N.C. 102, 72 S.E.2d 16; Munday v. Bank, 211 N.C. 276, 189 S.E. 779; Farmers Bank of Clayton v. McCullers, 201 N.C. 440, 160 S.E. 494.
It is generally recognized that the 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 public road for access purposes, and this is 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 ex rel. Gebelin v. Department of Highways, 200 La. 409, 8 So. 2d 71 (1942); Breinig v. County of Alleghany, 332 Pa. 474, 2 A.2d 842 (1938); Genazzi v. Marin County, 88 Cal. App. 545, 263 P. 825 (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 cannot be cut off. If 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, 250 Iowa 473, 93 N.W.2d 60 (1958); King v. Stark County, 66 N.D. 467, 266 N.W. 654 (1936); State Highway Board v. Baxter, 167 Ga. 124, 144 S.E. 796 (1928); Gilsey Buildings, Inc. v. Incorporated Village, 170 Misc. 945, 11 N.Y.S. 694 (1939).
In Barnes v. Highway Commission, 257 N.C. 507, at p. 517, 126 S.E.2d 732, at p. 739, plaintiff owned land abutting the highway. On his land were three business establishmentsa service station, 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 spaces for ingress and egress. The opinion, delivered by Bobbitt, J., states the following principle of law: "`While entire access may not be cut off, an owner is not entitled, as against the public, to access to his land at all points in the boundary between it and the highway; if he has 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.' 39 C.J.S. Highways, § 141; * * *." The opinion concludes that plaintiff "is entitled to recover compensation on account of injury to * * * his * * * property to the extent, if any, such curbing substantially impairs free and convenient access thereto and the improvements thereon." (Emphasis added).
The principles stated in the two preceding paragraphs relate to a landowner's common-law right of access. In the instant case plaintiffs do not, and cannot, rely on the common-law right of access; such rights as they have are embodied in and limited by the "Right of Way Agreement." The agreement provides that plaintiffs "shall have no right of access to the highway constructed on said right-of-way except * * *." 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 "by way of service roads and ramps." Defendant has made available to plaintiffs exactly what the contract calls for, access from plaintiffs' land to the highway by way of service roads and ramps.
Easements of right-of-way acquired by the Highway Commission for *85 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's easement is abandoned. It is for this reason that an abutting landowner's 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. Highway Commission, 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. Wake 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.
Plaintiffs do not complain that they have been denied access; they complain that they are not permitted to designate and locate the route of access. It is their position that the word "highway," as used in the "Right of Way Agreement," refers to the main highway and not to service roads and ramps, that their access to the main highway is restricted and limited to access "by way of service roads and ramps," but, as to the service road and ramp on the right-of-way near and parallel to their boundary, direct access thereto is not limited by contract or otherwise. However, according to the map introduced by plaintiffs and the information and explanation thereon and attached thereto, 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 and 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 travelled highways (one overpassing the other). It is indeed 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 "highway" as set out in the "Right of Way Agreement." Under the circumstances clearly disclosed by plaintiffs' evidence, we hold as a matter of law that plaintiffs' access to the service road is free and convenient and defendant has not substantially interfered therewith, and under the contract between the parties plaintiffs are not entitled to direct access to the ramp.
Affirmed.