Hudson v. Board of Transportation

HEDRICK, Judge. By their one assignment of error, plaintiffs contend the court erred in concluding that they have no direct access to the “ramp” constructed on the right-of-way abutting their property. [437] Since plaintiffs’ two lots were a part of a larger undivided tract of land when John M. Davis and his wife granted the right-of-way to the defendant over which the ramp was constructed, plaintiffs’ rights of access to the ramp, if any, obviously are controlled by the right-of-way agreement. Recorded with the right-of-way agreement is plaintiffs’ Exhibit A, which is a map showing a proposed ramp (“Prop. Ramp”) extending from the northern side of U. S. Highway 70 (a proposed four-lane highway) to the eastern side of N. C. 102 (now U. S. Highway 13). Exhibit A also shows a proposed service road (“Prop. Serv. Rd.”) on the north side of and parallel with U. S. Highway 70. This exhibit together with plaintiffs’ Exhibit 3 (the map of the subdivision of the John M. Davis property) indicates that the proposed service road would intersect with the proposed ramp, approximately 134 feet south of plaintiffs’ property. Exhibit 3 indicates that plaintiffs’ property has a frontage of 155 feet along the eastern side of the proposed ramp and is separated on the north from U. S. Highway 13 approximately 140 feet by a lot owned by Earl Davis. Plaintiffs’ property is separated from the proposed service road on the south by Lot 13 and a “grave plot”. Plaintiffs’ Exhibit 4 (“Right-of-Way Plans, State Highway Commission”) filed in Wayne County Register of Deeds Office 4 June 1974, indicates that the proposed service road has been rerouted in such a manner that it does not intersect with the proposed ramp but runs in a general northerly direction through the Davis subdivision. The pertinent provision of the right-of-way agreement (Exhibit 2) is as follows: “It is further understood and agreed that the undersigned and their heirs and assigns shall have no right of access to the highway constructed on said right-of-way except by way of ramps constructed or to be constructed at intersection Sta. 253+85.” In holding as a matter of law under an essentially identical provision in a right-of-way agreement that an adjoining property owner is not entitled to direct access to a ramp, Justice Moore, speaking for our Supreme Court, Abdalla v. Highway Commission, 261 N.C. 114, 120, 134 S.E. 2d 81, 85 (1964), said: It [a ramp] is not established for the accommodation of abutting landowners; it is for the interchange of traffic between two heavily travelled highways (one overpassing the [438] 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.” Apparently recognizing that the holding in Abdalla, supra, represented a formidable obstacle to their claim, plaintiffs argue that when the right-of-way agreement was executed in 1955, the parties intended that the ramp to be constructed on the right-of-way should function not only as a ramp but also as a service road and that as such, any butting property owner would be entitled to unlimited direct access. Plaintiffs’ interpretation of the intention of the parties, based at least in part on the conduct of the parties after the execution of the agreement, disregards the plain meaning of the agreement which, coupled with the map (Exhibit A), manifests defendant’s intention to construct over the right-of-way acquired from John and Ella Davis a portion of a four-lane controlled access highway including a ramp connecting the two lanes reserved for west bound traffic on U. S. Highway 70 with U. S. Highway 13. Evidence that the plaintiffs and others were permitted by the defendant to use the proposed ramp and proposed service road for two-way traffic pending the completion of the entire project did not vest in plaintiffs or anyone else any rights not reserved by the grantors in the original agreement nor did it deprive the defendant of its rights to use the property for the purpose for which it was acquired. Thus, the trial court’s conclusion that the plaintiffs are not entitled to additional compensation on the ground that they have been denied direct access to the ramp adjoining their property and that the erection of a fence by the defendant between the ramp and plaintiffs’ property is not an additional “taking” within the meaning of the law is Affirmed. Judges Britt and Martin concur.