Boyden v. Achenbach

• Decision Date: 30 June 1878
• Citation: 79 N.C. 539
• Court: North Carolina Supreme Court
• Parties: A. H. BOYDEN v. ACHENBACH.

79 N.C. 539

A. H. BOYDEN

v.ACHENBACH.

Supreme Court of North Carolina.

June Term, 1878.

CIVIL ACTION tried at January Special Term, 1878, of ROWAN Superior Court, before Kerr, J.

The plaintiff claimed that he was entitled to a right of way and had acquired an easement over the land of the defendant, and that defendant had obstructed the same. The defendant in his answer denied the plaintiff's allegation, and insisted that if he ever possessed such right, it was lost by operation of the statute of limitations. The plaintiff introduced evidence tending to show that he and those under whom he claimed had peaceably and of right, and adversely to all persons for forty years, so used the right of way. The evidence offered by defendant tended to show that he purchased the land in the year 1873, and for more than three years before the commencement of this action had closed said way and refused to allow the plaintiff or any other person to use it, although the plaintiff always claimed the right to do so. The defendant insisted that if plaintiff had ever acquired an easement, it was barred by the statute. Under the instructions of the Court, the jury found for the plaintiff, and an order was made in accordance with the demand in the complaint, commanding the defendant to remove the obstructions, &c. From this judgment the defendant appealed.

Mr. J. S. Henderson, for plaintiff .

Messrs. J. McCorkle and W. H. Bailey, for defendant .

READE, J.

In England there were three kinds of public ways, one called “ iter” over which the public passed on foot; another called “ actus” over which they passed on foot and on horseback; and a third called “ via” over which they passed on foot and on horseback and in vehicles with wheels. State v. Johnson, Phil. 140. Coke Litt. 56, a, b, Bacon, Ab. In that old and thickly populated country where lands were of great value, the rights of the public and of individuals were sharply defined, and all of these roads were important. The “ via” however was most important and by pre-eminence was called the highway. And to the highway the robbery acts were confined.

Distinguished from these was the incorporeal hereditament, easement, or right of way which one acquired over the land of another in which the public had no interest whatever. This right of way was acquired either by prescription, being user for a time whereof the memory of man runneth not to the contrary, or by grant. If by grant, the grant itself was the proof, or the grant being lost, twenty years user raised a presumption that it once existed. In our new country the “highways” alone were of much public importance. These were laid off and established by order of Court and kept up at the public charge. To the highways were added “cartways” for persons who occupied land to which there was no public highway. These were also laid off and established by order of Court, and when established, they were for public use as well as for the use of the individuals at whose instance they were ordered. See Rev. Code and Bat. Rev., title Roads, &c. We have also a late act allowing roads to be laid off to places of public worship. Bat. Rev., ch. 104, § 45.

We have no other kinds of public roads in this State. The “footpaths” and ““neighborhood roads” have never had that importance. They are understood to be used by leave, and they are closed when the owners of the lands desire to put them under cultivation or to enclose them. Their use can not be claimed by prescription, and a grant will not be presumed from any length of user under such circumstances. It is not however intended to be denied that where the public has used a way as a public road or cartway just as if it had been laid off by order of Court--as if it has had an overseer and hands and been worked and...