Chesson v. Jordan

• Decision Date: 03 May 1944
• Docket Number: 27.
• Citation: 29 S.E.2d 906,224 N.C. 289
• Parties: CHESSON v. JORDAN et al.
• Court: North Carolina Supreme Court

29 S.E.2d 906

224 N.C. 289

CHESSON v. JORDAN et al.

No. 27.

Supreme Court of North Carolina

May 3, 1944

Civil action to recover damages for the unlawful destruction of a private gate and to restrain a trespass.

Plaintiff owns an 'L' shaped tract of land on Pasquotank River. The lands of defendants fit into the inner angle formed by the northern and eastern lines of the plaintiff's tract so that the upright part of the 'L' lies between the river and defendants' land, and the base section extends eastward toward Shiloh Road, and to the south of defendants' tract. There is a vehicular way leading from Shiloh Road to and along the southern edge of defendants' tract. This is used in going to and from the land both of plaintiff and of defendants.

Defendants contend that this way extends westwardly to the junction of the inner lines of the 'L' and on across plaintiff's land to the river.

Plaintiff having theretofore fenced his property for use in raising live stock, erected a gate at the point where this road or an extension thereof reaches plaintiff's eastern line. Defendants, claiming the right to use the alleged way from the point the gate was erected on across plaintiff's land to the river, destroyed the gate thus erected. It was again erected and again destroyed. Thereupon, plaintiff instituted this action.

In the trial below issues were submitted to and answered by the jury in favor of defendants as follows:

'1. Is the plaintiff the owner and in possession of the land described in the complaint? Answer: Yes.

'2. Are the defendants the owner of an easement over said land entitling them to use the lane in controversy without obstruction from the main Shiloh Road to Pasquotank River? Answer: Yes.

'3. If so, has plaintiff obstructed defendants in the use of said easement, as alleged? Answer: Yes.'

From judgment on the verdict plaintiff appealed.

M B. Simpson and John H. Hall, both of Elizabeth City, for appellant.

R Clarence Dozier, of Elizabeth City, for appellees.

BARNHILL, Justice.

The exceptions entered and duly preserved by plaintiff present three questions for decision: They are: (1) Does the evidence establish a public way to the unobstructed use of which defendants are entitled; (2) if not, is evidence of user by the public competent to establish defendants' right to a private way; and (3) does the owner of the servient estate have the right to erect a gate across a private way over agricultural land?

Defendants allege in defense the ownership of a private way, acquired by prescription, from their western line across plaintiff's land to the river. The evidence offered consists almost entirely of testimony tending to show that the alleged pathway has been used for many years past by members of the public 'going fishing.'

Even so, waiving any variance between allegation and proof, the existence of a public way or road is not made to appear. At most, nothing more than a neighborhood road is shown, and a neighborhood road is not a public road. Collins v Patterson, 119 N.C. 602, 26 S.E. 154.

According to the current of decisions in this court there can be in this State no public road or highway unless it be one either established by the public authorities in a proceeding regularly instituted before the proper tribunal; or one generally used by the public and over which the proper authorities have asserted control for the period of twenty years or more; or one dedicated to the public by the owner of the soil with the sanction of the authorities and for the maintenance and operation of which they are responsible. State v. McDaniel, 53 N.C. 284; Boyden v. Achenbach, 79 N.C. 539; State v. Purify, 86 N.C. 681; Kennedy v. Williams, 87 N.C. 6; Stewart v. Frink, 94 N.C. 487, 55 Am.Rep. 619.

The mere use of a way over land by the public does not constitute it a highway. Nor does the mere permissive use of it imply a dedicatory right in the public to use it. The use must be adverse to the owner, and as of right, manifested in some appropriate way by the properly constituted public authorities. Hemphill v. Board of Aldermen, 212 N.C. 185, 193 S.E. 153, 155, and cases cited; Collins v. Patterson, supra; State v. Fisher, 117 N.C. 733, 23 S.E. 158; State v. Wolfe, 112 N.C. 889, 17 S.E. 528; Stewart v. Frink, supra.

The record is devoid of any evidence tending to show that the proper public authorities at any time or in any way manifested any intent or purpose to claim the alleged way as a public road. The mere fact that people generally passed over it and defendants themselves occasionally used it is insufficient to establish an easement in the public or to be treated as a dedication of plaintiff's land to the purpose of a highway.

The testimony relating to the use of the way by members of the public was admitted over objection and exception by plaintiff. These exceptions must be sustained.

The defendants own a tract of land in the northern tip of the 'L,' a considerable distance from the point the alleged lane approaches the river. The evidence of user by defendants comes from the defendant, L. P. Jordan, who testified:

'I have got boats at the end of the road; I fish myself and rent my boats to people that go and want to use them in the summer time. I own a piece of woods back there and haul a load of wood once in awhile.'

He testified further as to the use by the public that 'people go in bathing right much down there, and it has been used for this purpose I guess 25 or 30 years.'

Just how long defendants have been adjoining landowners and so used the land is not made to appear. Nor is it shown that such use has extended over a period of at least twenty years. The...