#### A. F. SANDERS, Administrator of LULA J. SANDERS, Deceased, and as an Individual, et al., v. THE TOWN *OF*SMITHFIELD.

(Filed 8 April, 1942.)

1. Judgments § 32—

A judgment that plaintiffs were not entitled to recover in tort for damages to their property abutting a street resulting from the closing of the street at a railroad grade crossing, upon the court’s holding that the municipality had authority to close the street, does not bar a subsequent action to recover damages to the property upon the theory that the closing of the street constituted a “taking” of an easement appurtenant to the property, entitling plaintiffs to compensation.

2. Abatement and Revival § 14—

Where a street is closed at a railroad grade crossing, any right to recover damages resulting therefrom to abutting property, upon the theory that the closing of the street constituted a “taking” of an easement appurtenant to the property, accrues when the street is closed, and when this occurs during the lifetime of the owner of the property, the right of action accrues to the administrator and not to the heirs at law.

3. Municipal Corporations § 49—

A provision of the municipal charter involved in this case required that the question of compensation for property taken in connection with street improvements should be referred to arbitrators, with right of appeal to the Superior Court whether the charter precludes the owners of property abutting a street from maintaining an action in the Superior Court to recover damages to the property resulting from the closing of the street at a railroad grade crossing upon the theory that closing the street constituted a “taking” of an easement appurtenant to the property, *quwre.*

*4.*Municipal Corporations § 28—

The owner of property abutting a street has, in addition to the right common with the general public to the use of the street, the right of access to and from his property, which constitutes an easement and property right peculiar to himself.

5. Same: Eminent Domain § 2—

The interference with the right of the owner of property abutting a street to access to and from his property is a “taking” for which compensation must be allowed, but the interference with such access must be direct, substantial and proximate, since if it results only in some inconvenience in compelling him to take a more circuitous route of access, it differs only in degree but not in kind from that sustained by the public generally, and is damnum *absque injuria.*

6. Same — Closing of street at crossing, resulting in mere inconvenience to owner of property abutting the street in getting to and from section on other side of tracks, is not a “taking.”

Plaintiffs’ evidence tended to show that they owned property abutting a street and that defendant municipality closed the street at a railroad grade crossing. Plaintiffs’ evidence further tended to show that between *167their property and the crossing there was a cross street leading to an nnderpass a short distance away which had been maintained by the municipality and used by the public for a period of three years. *Held,:*Defendant municipality’s motion to nonsuit at the close of plaintiffs’ evidence was properly granted, since plaintiffs’ evidence disclosed that the street in front of their property was open in both directions and that the territory on the other side of the railroad tracks was accessible, and that such access was merely more circuitous and inconvenient than prior to the closing of the street, or, in any event, plaintiffs failed to establish that their property was left in a *cul-de-sac*as a result of the closing of the street. *Hiatt v. Greensboro,*201 N. C., 515, cited and distinguished.

Appeal by plaintiffs from *Burney, J.,*at September Term, 1941, of JOHNSTON.

Tbis action was brought by A. F. Sanders, administrator of the estate of Lula J. Sanders, in that capacity and in bis individual right, and by the heirs at law, to recover damages for injury to property consequent upon the closing of a grade crossing at the intersection of a street in the town of Smithfield with the Atlantic Coast Line Eailroad, during the life of the decedent. Before the elimination of the grade crossing, the street was continuous, that portion east of the railroad being known as Massey Street and that on the west side known as Johnson Street. The Sanders lot abuts on Massey Street in the vicinity of the intersection. The plaintiffs’ evidence tends to show that an unpaved cross street, maintained by the municipality, and sufficient to accommodate general traffic, parallels the railroad at this point, intersecting Massey Street between that property and the railroad right of way. It affords access to the underpass a few blocks away and gives passage into and out of Massey Street beyond plaintiffs’ lot, to which it is adjacent.

The grade crossing referred to was considered dangerous; the underpass was built in lieu thereof, and the crossing closed by the municipality pursuant to an agreement with the State Highway Commission and the Atlantic Coast Line Eailroad Company.

There is a dwelling on the lot and a store building in which a mercantile business has been carried on and was being conducted at the time the grade crossing was closed.

The evidence tends to show that the property has diminished in value since the crossing'was closed, and that trade in the store has been much reduced.

The defendant in its answer made the plea that all matters in controversy had been adjudicated in a former action, but introduced no evidence. Objection is further made that the plaintiffs have no right to maintain the present action, since the provisions of the city charter afford an exclusive remedy by arbitration, and appeal to the Superior Court. It is further contended that there is no taking of property in the legal sense for which compensation should be allowed.

*168On tbe conclusion of tbe plaintiffs’ evidence, tbe defendant moved for judgment as of nonsuit, wbicb was allowed, tbe defendant offering no evidence.

Plaintiffs appealed, assigning error.

*Parker ■& Lee for plaintiffs, appellants.*

*Wellons & Wellons and Ward, Standi & Ward for defendant, appellee.*

Seawell, *J.*

Tbe controversy in tbis case is identical in factual situation witb tbat presented in *Sanders v. R. R.,*216 N. C., 312, 4 S. E. (2d), 902, in wbicb tbe present defendant, tbe town of Smitbfield, was a party; but there is a substantial difference in tbe parties and tbe kind of action now brought. In tbe former case tbe plaintiffs sought recovery against tbe railroad company and *the*city for *the*commission of a tort in obstructing tbe street upon wbicb plaintiffs’ property abuts, and thereby creating and maintaining a nuisance, to tbe detriment of tbe plaintiffs’ easement in tbe street and consequent injury to tbe property. Tbe ease was viewed as an action sounding only in tort, predicated upon an *ultra vires*act of tbe municipality, and a demurrer to tbe complaint was sustained upon tbe ground best expressed by quoting from tbat case at p. 315:

“There is statutory authority for its action both under its charter provisions, ch. 424, Private Laws 1907, sec. 34; ch. 219, Private Laws 1911, sec. 25, and in the Public Law; C. S., 2787, subsec. 11. It has power ‘to . . . close any street or alley tbat is now or may hereafter be opened . . . as it may deem best for tbe public welfare of tbe citizens of tbe city.’ There is no allegation in tbe complaint tbat tbe town authorities in exercising tbis power acted arbitrarily or capriciously or tbat there was any abuse of discretion in tbe adoption of tbe resolution closing Massey Street. In so doing, tbe town was exercising a discretionary and legislative power as a governmental agency. In such eases *the court*can interfere only in instances of fraud or oppression constituting a manifest abuse of discretion. *Tate v. Greensboro,*114 N. C., 410; *Hoyle v. Hickory,*164 N. C., 79.” Tbe opinion concludes: “A governmental agency may take or appropriate private property for tbe public use. Tbis power carries tbe corresponding duty to pay just compensation for tbe property taken. Whether tbe action of tbe town in surrendering its easement in tbe land of tbe defendant railroad company at tbe Massey Street crossing and in closing tbe street at tbe point constitutes a ‘taking’ of an interest in tbe property of plaintiffs, for wbicb it must compensate tbe plaintiffs, is not here presented or discussed.”

Tbe defendant did not follow up its plea of *res judicata*by offering evidence; and indeed it would not have availed, since a different cause of *169action is now presented. Tbe plaintiffs now sue the city to recover compensation for the taking of their property by vacating or closing the street and interfering with an appurtenant easement of access, ingress and egress.

The defendant has raised no objection to the joinder of parties or the capacity in which they sue. Properly speaking, since the taking complained of took place, if at all, during the lifetime of Lula Sanders, compensation, if allowed, should go to the administrator. 18 Am. Jur., Eminent Domain, sec. 237. Her heirs at law are not presently concerned, but this is immaterial, in view of the disposition of the case.

(1) The defendant raises the question whether plaintiffs have a right to maintain their present action against the city for compensation for the taking of their property, contending that the remedy provided in the charter of the town, ch. 424, Private Laws 1907, sec. 34, is exclusive. This section requires that the question of compensation for property taken in connection with street improvement shall be referred to arbitrators, providing for their selection and for an appeal to the Superior Court in case either party is not satisfied with the award.

We are inclined to the view that it was the intention of the statute to provide an exclusive remedy, applicable to plaintiffs’ cause of action, if any they have; but we prefer to rest decision on grounds which go to the merits of the controversy, *ut sit finis litis.*

(2) The defendant insists that no person can have, as a mere incident to the use of his property, a private proprietary right in the maintenance by the municipality of a condition admittedly involving serious danger to the public; and contends that the elimination of the grade crossing having been made, both ostensibly and in fact, under the necessary exercise of the city’s police power, the consequent detriment to the plaintiffs’ property is *damnum absque injuria,*citing *Martin v. Greensboro,*193 N. C., 573, 137 S. E., 666; *Blackwelder v. Concord,*205 N. C., 792, 172 S. E., 392; *Klingenberg v. Raleigh,*212 N. C., 549, 194 S. E., 297; *Mosteller v. R. R.,*220 N. C., 275, 17 S. E. (2d), 133. Counsel interprets *Sanders v. R. R., supra,*as decisive on this point.

In *Mosteller v. R. R., supra,*the plaintiffs sought an injunction upon the ground that the closing of an underpass near their abutting property was an *ultra vires*act on the part of the Highway Commission, and the pertinent observation of the Court in that case was addressed to the existence of the challenged power, and not to the question of compensation. Here no question is raised as to the power of the municipality to close the grade crossing, since it has it under the general law and by virtue of its charter, ch. 424, Private Laws 1907, *supra.*

True, it is generally recognized that a municipality is not liable for damages, when acting in good faith, in its governmental capacity, and in *170tbe exercise of its police power. Tbe elimination of a dangerous grade crossing on tbis principle may be near tbe categories, established in tbe course of decision, as to wbicb it is beld tbat rights pertaining to tbe use of property are not within tbe constitutional inhibition against taking without compensation, when it is done in good faith, in tbe necessary exercise of tbe police power. McQuillin, Municipal Corporations, 2d Ed., Vol. 4, § 1590 (1470). In this connection see *Chicago, B. & Q. R. Co. v. People ex rel. Grimwood,*200 U. S., 561, 26 S. Ct., 341, 50 L. Ed., 596; *Armour & Co. v. N. Y., N. H. & H. Ry.,*41 R. I., 361, 103 Atl., 1031. In view of tbe conclusion we have reached, it is unnecessary in tbis case, however, to extend tbe doctrine so far, or to pass upon tbe significance of tbe cases cited by tbe defendant in tbat regard.

(3) It is generally beld tbat tbe owner of abutting property has a right in tbe street beyond tbat wbicb is enjoyed by tbe general public, or by himself as a member of tbe public, and different in kind, since egress from and ingress to bis own property is a necessity peculiar to himself. *Colvin v. Power Co.,*199 N. C., 353, 154 S. E., 678; *Hiatt v. Greensboro,*201 N. C., 515, 522, 160 S. E., 748; *Davis v. Alexander,*202 N. C., 130, 162 S. E., 372; *Glenn v. Board of Education,*210 N. C., 525, 187 S. E., 781; *Henderson v. Lexington,*132 Ky., 390, 111 S. W., 318; 29 C. J. S., 910, sec. 105. Tbe right is in tbe nature of an easement appurtenant to tbe property, and abridgment or destruction thereof by vacating or closing tbe street, resulting in depreciation of tbe value of tbe abutting property, may give rise to special damages compensable at law. *Brakken v. Mpls. & St. L. Ry.,*29 Minn., 41, 11 N. W., 124; also cases cited *supra.*

Beyond acceptance of tbis fundamental principle, authorities differ as to practically every other phase of tbe subject under discussion. However, following tbe line of authorities considered commendable and controlling, it is settled law in tbis State tbat under such circumstances tbe interference with tbe easement, wbicb is itself property, is considered, *pro tanto,*a “taking” of tbe property for wbicb compensation must be allowed, rather than a tortious interference with tbe right. *Hiatt v. Greensboro, supra; Phillips v. Telegraph Co.,*130 N. C., 513, 41 S. E., 1022; *Stamey v. Burnsville,*189 N. C., 39, 126 S. E., 103.

But tbe application of tbe doctrine to particular situations has differed.

Where there is no actual encroachment on tbe property, but only tbe question of interference-with tbe appurtenant easement, since tbe right itself springs out of and attaches to tbe use of a public facility, conservative opinion tends strongly to limit it to such reasonable recognition as will meet tbe exigencies involved in tbe owner’s use of bis property, and yet will not unduly restrict tbe government in functioning for tbe public convenience and necessity.

It is understood tbat absolute equality of convenience cannot be achieved, and those who take up their residence or purchase and occupy *171property in proximity to public roads or streets do so with, notice that they may be changed as demanded by the public interest. To justify recovery in such ease, the damages must be direct, substantial and proximate, and not such as are attributable to mere inconvenience — such as being compelled to use a longer or more circuitous route in reaching the premises. McQuillin, *op. cit., supra,*§ 1527 (1410). It is not enough that the vacation results merely in some inconvenience to his access, or compels a more circuitous route of access, or a diversion of traffic from the premises, or a consequent diminution in value. 18 Am. Jur., Eminent Domain, sec. 225. An inconvenience of that nature is held to be no different in kind, but merely in degree, from that sustained by the general public, and is *damnum absque injuria. Buhl v. Fort Street Union Depot Co.,*98 Mich., 596, 57 N. W., 829; see *Crowell v. Power Co.,*200 N. C., 208, 156 S. E., 493; *Mosteller v. R. R., supra*(220 N. C., 275, 17 S. E. [2d], 133).

The nature of the easement in the street acquired by the abutting owner leads us to a further consideration of its physical extent under the circumstances of this case. How far along the street each way from the abutting property is it effective? It seems clear that the owner is not entitled to freeze the map, or demand compensation for municipal changes in the street, however remotely they occur.

Pertinent to the inquiry, we quote the following terse statement from an able and careful authority on the subject: “If the street directly in front of one’s property is not vacated but the portion vacated is in another block, so that he may use an intersecting cross street, although perhaps it is not quite so short a way nor as convenient, it is almost universally held that he does not suffer such a special injury as entitles him to damages. And this is so notwithstanding the new route is less convenient or the diversion of travel depreciates the value of his property.” McQuillin, *loc cit., supra.*See Lewis, Eminent Domain (3rd Ed.), § 203. “Damages may not ordinarily be recovered for the vacation or closing of a street in another block from that in which the complainant’s property is located, or, in other words, beyond the next cross street.” 18 Am. Jur., Eminent Domain, sec. 225; *Re Hull,*163 Minn., 439, 204 N. W., 534, 205 N. W., 613, 49 A. L. R., 320; Annotations, 49 A. L. R., 361, 93 A. L. R., 644. We believe the principle thus expressed to be an adequate answer to our inquiry, and it meets our approval.

These authorities are in accord with those of our own State, holding that the mere imposition of an inconvenience of that character gives rise to no cause of action. *Crowell v. Power Co., supra; Hosteller v. R. R., supra.*

The plaintiffs rest their case upon the exceptional situation presented in *Hiatt v. Greensboro, supra*(201 N. C., 515, 160 S. E., 748), in which *172case recovery was allowed on tbe ground that the closing of the street immediately adjacent to the abutting property had left it in a *cul-de-sac*without the possibility of continuous passage in front of it either way. In the opinion it is carefully pointed out that there was no street between plaintiff's property and the railroad. The decision is amply supported by authority — although there is much to the contrary — and we have no occasion to disturb it. It is in accord with the rule applied in many of the texts. “In those jurisdictions where the compelling of the taking of a more circuitous route is held not a special injury, a distinction has been drawn between an obstruction putting plaintiff’s property in a *cul-de-sac*and one not so doing, there being an intersecting street between plaintiff’s property and the obstruction, and it is held in the former class of cases that there is a special injury.” McQuillin, *op. cit., supra,*§ 1487 (1383). This is not at all out of harmony with the rule we apply in the case at bar. The language employed by the learned and careful justice who spoke for the Court in *Hiatt v. Greensboro, supra,*is reminiscent of the above passages from McQuillin and other authorities cited, in which the situation presented in the *Hiatt case, supra,*and that presented in the case under consideration are contrasted, and different conclusions drawn. There is no reason to believe that he was not advertent to the distinction between the two, or that the Court intended to extend the doctrine beyond the limitations here expressed.

Applying these principles to the facts before us, we find that plaintiffs’ evidence — the defendant offered none — discloses that between their property and the railroad and closed crossing, the city has for three years maintained, and the public has for that period used, a street through which access may be had to the underpass a short distance away, and through it to the general system of streets on the other side of the railroad. Through this street traffic may pass continuously, both ways, by plaintiffs’ property, into and out of Massey Street between that property and the railroad.

Plaintiffs are not in a position to complain that the evidence relating to the street was not submitted to the jury. As stated, it is plaintiffs’ own evidence, was without material contradiction in its parts, and it tends to show the existence of such a street maintained by the municipality and used by the public for the period stated. It had no contrary significance which would justify its submission to the jury, and the plaintiffs are bound by it.

There is no issue here between parties who may assert conflicting claims to the *locus*occupied by the street. In an action of this kind, and in the relation these litigants have to the subject matter, upkeep of this street by the municipality and its use by the public for a period of three years under the conditions appearing in the evidence are sufficient to raise, *173*prima facie,*a presumption, that it is a public street. *Campbell v. Elkins,*58 W. Va., 308, 52 S. E., 220; Elliott, Roads and Streets (4th Ed.), Vol. 1, §§ 167-169; 25 Am. Jur., Highways, sec. 48.

Moreover, the plaintiffs have alleged that tbeir property has been placed in a *cul-de-sac*by the closing of the street at the crossing. Proof of this allegation is essential to recovery. Taken in its most favorable light for the plaintiff in this respect, the evidence does not tend to support the alleged cause of action. The judgment of the court below is

Affirmed.