dissenting: Associated Transport, Inc., although subject to regulation by the North Carolina Utilities Commission, has no right of eminent domain. This decision, however, establishes the power of the State Highway Commission to condemn a right-of-way for a road to the plant of any private industry with a payroll which the Chamber of Commerce, or some other group able to influence the Highway Commission, decides is large enough to benefit the economy of the community. It is a decision which will rise to haunt not only this Court but also the Highway Commission, for any private corporation can now say to it, “Condemn us a road and we will employ enough people, so that you can justify it as a public road.” But how many employees are enough to make “a public?” And surely the applicant for a “public road” must be a business big enough and so well established as to justify confidence in its continuing payroll. But what of the rights of the entrepreneur in this land of equal opportunity? Is only Big Business to be thus “encouraged to locate” here?
In this case, the State Highway Commission has built a road to give 700 employees of Associated Transport, Inc., access to its plant. *246Despite that number, however, the fact remains that the road was not constructed for the use by the public as that term is generally understood. It is pointed out that, because the State Highway Commission has condemned it, the public generally will have the right to use the road. That right does not make a road which ends at a private plant, with no scenic appeal, serve a public purpose. Of the general body of the community, only those citizens who are employed by Associated or who have business with that trucking company will ever use the road.
In Highway Commission v. Batts, 265 N.C. 346, 144 S.E. 2d 126, in striking down a finding of the Superior Court judge that the Highway Commission’s appropriation of a landowner’s property was for the purpose of a public road, this Court, speaking through Parker, C.J., said:
“ (H) e should have found as facts and concluded as a matter of law and adjudged that the condemnation and appropriation of a right of way across lands of defendants . . ., ending in a cul de sac on the lands of J. M. Batts, was not for a public use, but was for the substantial and dominant use and benefit of W. M. Batts and wife, and a few of their relatives, and that any use by, or benefit to, the public would be merely incidental and entirely conjectural, and that the building of the proposed road by plaintiff will be an abuse of the discretion vested in it to establish, construct, and maintain highways, . . . and he should have issued an injunction permanently restraining plaintiff from proceeding with the condemnation and appropriation of their lands.” Id. at 361, 144 S.E. 2d at 137.
The difference between this case and Batts is one of degree only; the principle is the same. Patently, Judge Hobgood acted in reliance upon the Batts case when he enjoined the Highway Commission in this case.
In Batts, the court hewed closely to the line that private property can be taken only for a public use. In this case, while protesting to the contrary, the court discards the criterion of public use for the “public benefit” theory. The difference between the two is well stated in Smith v. Cameron, 106 Ore. 1, 210 P. 716, 27 A.L.R. 510:
“There are two main lines of judicial decisions — one holding that the word ‘use’ is to be taken in its primary sense, and that when so taken it means, stated briefly, ‘employment;’ the other holding that the word should be given its secondary meaning, and that, when so applied, it means, stated briefly, ‘advantage.’ 1 Lewis, Em. Dom. 3rd ed., sec. 252; 20 C.J. 552; *247* * * Under the authority of that line of decisions which gives the word 'use’ its secondary meaning, some courts have gone to the extent of holding that ‘public use’ is synonymous with ‘public benefit,’ ‘public utility,’ or ‘public advantage.’ * * *
“The courts, including this Court, which takes the opposing view, asserts that there is a distinction between a public use and a benefit to the public, and that private enterprises that give employment to many people and produce large quantities of commodities of various kinds are not necessarily public uses, and that the term ‘public use’ as used in constitutions ■ is not synonymous with the term ‘public benefit.’ * * * The idea emphasized by this main line of decisions is expressed by Judge Cooley thus: ‘The public use implies a possession, occupation, and enjoyment of the land’ by the public or public agencies, and it is not enough ‘that the public would receive incidental benefits, such as usually spring from the improvement of lands or the establishment of prosperous private enterprises.’ ” Cooley, Const. Lim. 7th ed. 766.
In Cozard v. Hardwood Co., 139 N.C. 283, 51 S.E. 932, a case cited in the majority opinion, the Court enjoined defendant from constructing a railroad. (This was not a railroad established under G.S. 136-69, then § 2023 of the N. C. Code of 1883.) Defendant had obtained from the Valley town Township Highway Commission an order for a right-of-way over plaintiff’s property for a railway to transport timber to market.
In answering the argument of defendant’s counsel that the timber which the railroad would haul from the mountains would establish tanneries and factories, open land for cultivation, develop natural resources, increase immigration, and bring wealth to the State, the Court said, “They invite courts to find in the term ‘public use’ a broader and larger meaning. . . .” but “great and dangerous monopolies have been fostered by the liberal construction put upon the term ‘public use’.” Connor, J., who wrote the opinion quotes from Bloodgood v. R. R., 18 Wend. 9, 31 Am. Dec. 311, in which it is said:
“ ‘When we depart from the natural import of the term “public use” and substitute for the simple idea of a public possession and occupation that of public utility, public interest, common benefit, general advantage or convenience, or that still more indefinite term, public improvement, is there any limitation which can be set to the exertion of legislative will in the appropriation of private property? The moment the mode of its *248use is disregarded and we permit ourselves to be governed by speculations upon the benefits which may result to localities from the use which a man or set of men propose to make of the property of another, we are afloat without any certain principle to guide.’ Judge Cooley says: ‘It seems not to be allowable, therefore, to authorize private roads to be laid out across the lands of unwilling parties by an exercise of this right. The easement in such case would be the property of him for whom it was established.’ Const. Lim., 652.” Id. at 245, 246, 51 S.E. at 936.
The authorities which support the two doctrines of public use are collected in 26 Am. Jur. 2d, Eminent Domain §§ 27 and 28 (1966). With reference to the public benefit doctrine, it is said:
“Many courts have pointed out that almost any legitimate business enterprise, indirectly to some extent, may be regarded as a benefit to the public, and that an indefinite field is opened up when the doctrine is accepted that public benefit alone is sufficient to make the use a public one, warranting the exercise of the power of eminent domain. The apparent conflict among the authorities may be accounted for in the different conditions that exist in different states. The trend of authority seems to be away from any general definition of the term ‘public use’ as synonymous with public benefit, and toward the restriction thereof, except in certain rather well-defined fields, to the meaning of use by the public.
“The doctrine that public benefit and utility are a justification for the exercise of the power of eminent domain has been associated especially with four classes of cases: (1) those relating to the development of water power for mills under general or special mill or flowage acts; (2) those arising under drainage acts for the reclamation of wet and marshy land; (3) those relating to the irrigation of arid land; and (4) those relating to the promotion of mining. In some of the states further uses have been recognized by special constitutional provisions. In other words, the doctrine has been applied where location of the private enterprise in question was not a matter of the owner’s choice or convenience, but was absolutely or practically fixed, and necessity seemed, therefore, to the court to call for a more liberal interpretation of the term ‘public use’ than in ordinary cases. The tendency has been to place the decisions, even in those classes of cases in which the exception is recognized by some courts, on other grounds than the law of eminent domain to refuse to extend the public benefit doctrine, and to take the *249position that under present conditions, if the question were a new one, a different conclusion would be reached. The public benefit doctrine has no application if the undertaking for which the land is to be condemned is not confined by its inherent nature to a fixed location.” Id. § 28.
Associated Transport’s road runs 770 feet across defendants’ land from Highway No. 62, to Associated’s plant, where it dead-ends. Associated Transport trucks and cars of its employees use the road, which is about 200 feet from defendants’ residence. “Trucks use the road 24 hours a day.”
A subsidiary corporation of Associated bought the land on which it erected its plant knowing at the time of the purchase that it had no right of ingress to or egress from its property. Furthermore, neither Associated nor its subsidiary has ever attempted to buy a right-of-way from defendants across their property! Ordinarily no private business, firm, or corporation would do such a thing — and certainly Associated could have found other land — but it bought with confidence for “they had been assured by the Burlington-Ala-mance Chamber of Commerce that the State Highway Commission would build the access road across the defendants’ property.” Prior to this decision, the right of private property has not been subject to such invasion. Highway Commission v. Batts, supra. Heretofore, when a landlocked industrial or manufacturing plant has been unable to purchase a right-of-way or to acquire an easement of access, it has proceeded under G.S. 136-69 to have a cartway laid off and paid the damages which the jury of view assessed.
Defendants will no doubt be startled to read in the majority opinion that “the home or other property of a poor man cannot be taken from him by eminent domain and turned over to the private use of a wealthy individual or corporation merely because the latter may be expected to spend more money in the community, even though he or it threatens to settle elsewhere if this-is not done. This the Constitution forbids.” It does indeed!
My vote is to affirm the judgment of the court below, which permanently enjoined plaintiff from proceeding- with the condemnation and appropriation of the land of defendants.