B. E. SMITH and wife, Electa C. Smith, Petitioners,
v.
STATE HIGHWAY COMMISSION, Respondent.
No. 603.
Supreme Court of North Carolina.
June 15, 1962.*89 Atty. Gen., T. W. Bruton, Asst. Atty. Gen., Harrison Lewis, Trial Atty., Andrew McDaniel, Raleigh, and Hoyle, Boone, Dees & Johnson, by T. C. Hoyle, Jr., Greensboro, for respondent-appellant.
Jordan J. Frassineti and Sapp & Sapp, by Armistead W. Sapp, Greensboro, for petitioners-appellees.
PARKER, Justice.
The State Highway Commission assigns as error the denial by the court of its motion for judgment of compulsory nonsuit made at the close of petitioners' evidence the respondent offered no evidence. G.S. § 1-183. In denying the motion the court committed reversible error.
The State Highway Commission is an unincorporated governmental agency of the State of North Carolina, charged with the duty of exercising certain administrative and governmental functions. Williams v. North Carolina State Highway Commission, 252 N.C. 772, 114 S.E.2d 782; McKinney v. North Carolina State Highway Commission, 192 N.C. 670, 135 S.E. 772.
The powers and duties of the State Highway Commission are set forth in G.S. Ch. 136, Art. 2. It is the State agency created for the purpose of constructing and maintaining our public highways. De Bruhl v. State Highway & Public Works Commission, 245 N.C. 139, 95 S.E.2d 553.
All the evidence shows the following: The State Highway Commission owns a 100-foot right of way on Bessemer Avenue from Summit Avenue eastwardly to the city limits of Greensboro, which right of way passes directly in front of petitioners' realty. Its complete right to occupy and use the entire surface of the land covered by its *90 perpetual easement for all time to the exclusion of petitioners, their heirs, and assigns, makes the bare fee remaining at present in petitioners for all practical purposes of no value. North Carolina State Highway Commission v. Black, 239 N.C. 198, 79 S.E.2d 778. In East Bessemer Avenue respondent had an established highway, and acting with lawful authority vested in it by the General Assembly and for legitimate highway purposes, it, acting in a governmental capacity, raised the grade of the established highway in East Bessemer Avenue passing in front of petitioners' property so as to impair or destroy, unless ramps are built, petitioners' ingress to this public highway from their abutting land, and egress from this public highway to their abutting land. According to a stipulation of the parties all grading, filling, and paving by respondent on East Bessemer Avenue in front of petitioners' abutting land was done entirely within the limits of its right of way. There is neither allegata nor probata that respondent did not do the work in a proper method or manner.
When a public highway is established, whether by dedication, by prescription, or by the exercise of eminent domain, the public easement thus acquired by a governmental agency includes the right to establish a grade in the first place, and to alter it at any future time, as the public necessity and convenience may require. Consequently, it is the rule with us, and very generally held elsewhere, that, unless otherwise provided by statute or constitutional provision, an abutting property owner, even if he owns the fee of the land within the highway, may not recover for damages to his land caused by a municipal corporation or the State Highway Commission changing the grade of an established street or highway, when said change is made pursuant to lawful authority and for a public purpose, and there is no negligence in the manner or method of doing the work. Any diminution of access by an abutting landowner is damnum absque injuria. Thompson v. Seaboard Air Line R. Co., 248 N.C. 577, 104 S.E.2d 181; Jenkins v. City of Henderson, 214 N.C. 244, 199 S.E. 37; Calhoun v. State Highway and Public Works Commission, 208 N.C. 424, 181 S.E. 271; Stamey v. Town of Burnsville, 189 N.C. 39, 126 S.E. 103; Bennett v. Winston-Salem Southbound R. Co., 170 N.C. 389, 87 S.E. 133, L.R.A.1916D, 1074; Hoyle v. City of Hickory, 167 N.C. 619, 83 S.E. 738; Dorsey v. Town of Henderson, 148 N.C. 423, 62 S.E. 547; Meares v. Commissioners of Town of Wilmington, 31 N.C. 73; 29 C.J.S. Eminent Domain § 123, pp. 938-939; 18 Am.Jur., Eminent Domain, sec. 211; Nichols on Eminent Domain, 3d Ed., Vol. 2, sec. 6.4441, (1), (2), (3).
Nichols, ibid, p. 369 states:
"Accordingly, there are few propositions better settled by the authorities than that an owner of land adjoining the highway and owning the fee of the way is not constitutionally entitled to compensation for injury resulting from a change in the grade. As serious injuries to lands adjoining public ways were inflicted by changes of grade in the early years of the last century, the question was thoroughly contested and conclusively settled before the modern theories extending municipal liability had been invented, and the old rule was then too well supported by authority to be shaken."
"Incidental interference with the abutting owner's easements of light, air, and access by reason of the change of grade does not entitle him to compensation, in the absence of a constitutional or statutory liability." 29 C.J.S. Eminent Domain § 123b, p. 939. See also Nichols, ibid, sec. 6.4441 (3).
"Where the change of grade of a highway causes damage to the land of an abutter it is not deemed a `taking' in the constitutional sense so as to require compensation therefor as in eminent domain. This rule does not, however, apply to cases of partial takings, where damage to the remainder *91 by reason of change of grade is involved, nor does it apply where the alteration in the grade is not lawfully authorized or is effected for other than legitimate street purposes." Nichols, ibid, pp. 364-368. Numerous cases from the federal and state jurisdictions are cited in support of the text, including our cases of Dorsey v. Henderson, supra; Harper v. Town of Lenoir, 152 N.C. 723, 68 S.E. 228; Earnhardt v. Board of Commissioners of Town of Lexington, 157 N.C. 234, 72 S.E. 864; Hoyle v. City of Hickory, 164 N.C. 79, 80 S.E. 254; Wood v. Duke Land & Improvement Co., 165 N.C. 367, 81 S.E. 422; Hoyle v. City of Hickory, 167 N.C. 619, 83 S.E. 738; Bennett v. Winston-Salem Southbound R. Co., supra; Powell v. Seaboard Air Line R. Co., 178 N.C. 243, 100 S.E. 424; Stamey v. Town of Burnsville, supra; Calhoun v. State Highway and Public Works Commission, supra.
We have no statutory provision and no constitutional provisions imposing liability upon respondent for the acts complained of by petitioners.
Petitioners rely upon Hiatt v. City of Greensboro, 201 N.C. 515, 160 S.E. 748. The holding in that case was that an abutting landowner was entitled to recover compensation for damages resulting from the closing of a street at a railroad crossing. In the instant case, petitioners are seeking to recover damages by reason of respondent raising the grade of an established highway made by it pursuant to lawful authority and for a legitimate highway purposea proper exercise of its highway easement, because when respondent acquired the easement on East Bessemer Avenue, the easement thus acquired includes the right to alter the grade in East Bessemer Avenue at any future time, as the public necessity or convenience may require, without any liability to an abutter for the impairment or loss of his easement of access, for the reason that his easement of access is "held subject to the public right to make use of the way for travel and other proper highway uses, and anything that would constitute a proper exercise of the highway easement is no infringement of the abutter's rights." Nichols, ibid, p. 370. The public has a paramount right to improve the highway for highway purposes. The holding in the Hiatt case conflicts in no way with the holding here, because the facts of the two cases are different, and to the different facts different principles of law apply.
Petitioners also rely upon Thompson v. Seaboard Air Line R. Co., supra. That case and the instant case are easily distinguishable, and the holding in that case does not conflict at all with the holding here. In the Thompson case the railroad raised the elevation of the street, and the evidence disclosed that the change in grade was for the benefit of the railroad, and was not a function of the city nor done for the city's benefit. The Thompson case in the opinion states:
"When a city acts for public convenience under the authority granted it by the Legislature and raises or lowers the grade of a street, any diminution of access by an abutting property owner is damnum absque injuria. The abutting property owner can neither prevent the change by injunction nor recover damages for the diminished value of his property, when the work is done in conformity with plans designed to promote public convenience."
Petitioners rely upon statements in Sanders v. Town of Smithfield, 221 N.C. 166, 19 S.E.2d 630 (a case where the town of Smithfield closed a grade crossing at the intersection of a street in the town with a railroad), and Hedrick v. Graham, 245 N.C. 249, 96 S.E.2d 129 (a case involving the condemnation of land for a limited access highway), to the effect that an abutter's right of access to a public highway is in the nature of an easement appurtenant to his property, and any interference with the easement, which is itself property, is considered pro tanto, a "taking" of the property for which compensation must be allowed. Those statements of law are correct where there has been a "taking" in the constitutional *92 sense of an abutter's easement of access, as in the Hiatt case by closing a street, but they are not applicable to the facts of the instant case, because, as set forth above, when respondent acquired the public easement on East Bessemer Avenue, the easement thus acquired includes the right to alter the grade as the public necessity and convenience may require, and consequently the change of grade of the highway, which impaired or destroyed petitioners' access to it, is not deemed a "taking" in the constitutional sense so as to require compensation therefor.
In the court below the verdict and judgment will be vacated, and a judgment of compulsory nonsuit entered.
Reversed.