Bender v. American Telephone & Telegraph Co. of North Carolina

• Decision Date: 23 September 1931
• Docket Number: 103.
• Citation: 160 S.E. 352,201 N.C. 355
• Parties: BENDER v. AMERICAN TELEPHONE & TELEGRAPH CO. OF NORTH CAROLINA.
• Court: North Carolina Supreme Court

160 S.E. 352

201 N.C. 355

BENDER v. AMERICAN TELEPHONE & TELEGRAPH CO. OF NORTH CAROLINA.

No. 103.

Supreme Court of North Carolina

September 23, 1931

Appeal from Superior Court, Warren County; Cranmer, Judge.

Action by Anna B. Bender against the American Telephone & Telegraph Company of North Carolina. From a judgment dismissing the action, the plaintiff appeals.

Affirmed.

The judgment of the court below is as follows: "This cause coming on to be heard at the May Term of Warren County Superior Court, and a jury having been empanelled, and it appearing to the Court that a grant for a right of way, or an easement, over the lands described in the complaint from J H. Bender, the then owner of the land, having been registered in the office of the Register of Deeds of Warren County on the 8th day of August, 1927, and thereafter, to-wit, on August 10th, 1927, a deed from the said J. H. Bender to Mrs Anna B. Bender, the instant plaintiff, his wife, was registered in the office of the Register of Deeds of Warren County. The Court being of the opinion that in the situation the plaintiff cannot recover. It is ordered, adjudged and decreed that the action be, and the same is hereby dismissed and that the plaintiff be taxed with the costs."

The plaintiff excepted and assigned errors for "that the complaint stated a good cause of action against defendant both in respect of the fraud and the trespass alleged therein, and that there was no admission or finding of fact which warranted the judgment."

Pittman Bridgers & Hicks, of Henderson, for appellant.

Julius Banzet, Jr., of Warrenton, for appellee.

PER CURIAM.

The court held: "It appearing to the Court that a grant for a right of way, or an easement, over the lands described in the complaint from J. H. Bender, the then owner of the land having been registered in the office of the register of deeds of Warren County on the 8th day of August, 1927, and thereafter, to-wit, on August 10th, 1927, a deed from the said J. H. Bender to Mrs. Anna B. Bender, the instant plaintiff, his wife, was registered in the office of the register of deeds of Warren County. The Court being of the opinion that in the situation the plaintiff cannot recover," adjudged that the action be dismissed.

We think the judgment of the court below correct.

In Avery County Bank v. Smith, 186 N.C. at page 641 120 S.E. 215, 219, it is said: "Where the registration of an instrument is...