Boyden v. Achenbach
| Decision Date | 28 February 1882 |
| Citation | 86 N.C. 397 |
| Court | North Carolina Supreme Court |
| Parties | A. H. BOYDEN v. GEORGE ACHENBACH. |
OPINION TEXT STARTS HERE
CIVIL ACTION tried at Spring Term, 1881, of ROWAN Superior Court, before Seymour, J.
The plaintiff appealed.
Mr. John S. Henderson, for plaintiff .
Messrs. McCorkle and Bailey, for defendant .
The action is for damages in closing up a way, a prescriptive right to which the plaintiff claims, as annexed to land devised to him by his father, leading thence over an adjoining tract belonging to and in possession of the defendant, to a public road, and which has been in use by the plaintiff and his ancestors without hindrance until about the year 1858, for more than forty years. At the date mentioned, one Shaver, the preceding proprietor from whom the defendant derives his title, sent a messenger to the testator, (Nathaniel Boyden), to obtain his assent to the erection of a fence across the way or lane, then having fences along and on either side of it, and was refused; and he was threatened with a suit if the way was thus obstructed, and the gates intended to admit the passing over it as before, were kept under lock. Thereupon the said Shaver replied, the gates should not be fastened, and no further objection being made, the fence was constructed with gates and the way continued to be used by the testator until the year 1873, when he died. Thereafter the way was entirely closed up and all passing over it obstructed. The testimony offered in support of the plaintiff's alleged prescriptive right was of long use by his ancestors and himself, extending back to the year 1842 at least, without permission of, or interference from, the preceding owner of the defendant's tract, as well as by many others, to whom the use was convenient, until the putting up the fence with gates, under the circumstances mentioned.
Upon this proof the court being of opinion that there was no adverse user shown and the plaintiff had failed to sustain his claim to the easement, and so intimating, the plaintiff submitted to a nonsuit and appealed.
In the former appeal (79 N. C., 539) when the form of the complaint left it uncertain whether the plaintiff was asserting a private right of way, or a right held in common with others, to use a road or public way, the exercise of which had been obstructed by the defendant, READE, J., speaking for the court, uses this language: “In this country, where land cannot be cultivated without being enclosed, it would be a burden which farmers could not bear, if they had to make lanes of every...
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Dickinson v. Pake
...it is permissive and with the owner's consent, to create the easement by prescription and impose the burden upon the land.' Boyden v. Achenbach, 86 N.C. 397 (1882). Thus, we moved from the majority view that the user is presumed to be adverse to the view that it is presumed to be permissive......
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Henry v. Farlow
...upon the land.' Darr v. Carolina Aluminum Co., supra [215 N.C. 768, 3 S.E.2d 437]; Nash v. Shute, 184 N.C. 383, 114 S.E. 470; Boyden v. Achenbach, 86 N.C. 397. The evidence does not suffice to show that the use of the roadway by the plaintiff and her tenants was accompanied by circumstances......
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Darr v. Carolina Aluminum Co.
...use for the required period is not sufficient to confer the right". See, also, same case reported in 166 N.C. 208, 80 S.E. 888; Boyden v. Achenbach, 86 N.C. 397; State Norris, 174 N.C. 808, 93 S.E. 950; Nash v. Shute, 184 N.C. 383, 114 S.E. 470; Perry v. White, 185 N.C. 79, 116 S.E. 84; Dur......
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Hoggard v. Mitchell
...374, 59 S.E. 1012; State v. Eastman, 109 N.C. 785, 13 S.E. 1019; State v. Long, 94 N.C. 896; Kennedy v. Williams, 87 N.C. 6; Boyden v. Achenbach, 86 N.C. 397; Id., 79 539; Crump v. Mims, 64 N.C. 767; State v. McDaniel, 53 N.C. 284. In some of the later cases on the subject it is recognized ......