Clinard v. Lambeth

• Decision Date: 07 November 1951
• Docket Number: No. 381,381
• Citation: 234 N.C. 410,67 S.E.2d 452
• Parties: CLINARD, v. LAMBETH et al.
• Court: North Carolina Supreme Court

Page 452

67 S.E.2d 452

234 N.C. 410

CLINARD, v. LAMBETH et al.

No. 381

Supreme Court of North Carolina.

Nov. 7, 1951

John G. Prevette, Asheboro, for plaintiff appellee.

Schoch & Schoch, High Point, Ferree, Gavin & Anderson, Asheboro, for defendants appellants.

WINBORNE, Justice.

I. At the threshold of this appeal the demurrer ore tenus comes up for consideration and decision.

'The office of a demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of the allegations of fact contained therein, and ordinarily relevant inferences of fact, necessarily deducible therefrom, are also admitted, but the principle does not extend to the admissions of conclusions or inferences of law', Stacy, C. J., in Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761, 763. See also McCampbell v. Valdese Bldg. & Loan Ass'n, 231 N.C. 647, 58 S.E.2d 617, and cases there cited.

Too, the statute G.S. § 1-151 requires that in the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed with a view to substantial justice between the parties. And the decisions of this court, applying the provisions of this statute, hold that every reasonable intendment is to be made in favor of the pleader. A pleading must be fatally defective before it will be rejected as insufficient. See King v. Motley, 233 N.C. 42, 62 S.E.2d 540.

Applying these principles to the complaint in the case in hand, we are unable to say that in no view of the case the court is without jurisdiction of the cause, or that the complaint fails to state facts sufficient to constitute a cause of action.

The contention of defendants, appellants, that since it is alleged in the complaint that the segment of the road in controversy has been abandoned by the State Highway Department, the General Statutes, Chapter 136, Article 4, vests in Clerk of Superior Court original and exclusive jurisdiction of an action to re-open it, does not follow. The statute G.S. § 136-67 defines what is a neighborhood public road, and as so defined declares that such roads shall be subject to all the provisions of G.S. § 136-68, G.S. § 136-69 and G.S. § 136-70 with respect to the alteration, extension, or discontinuance thereof, and authorizes any interested party to institute such proceeding. However, it does not appear that the allegations of the complaint bring the abandoned segment of the road in controversy within the definition. The pertinent parts of the definition read as follows: 'All those portions of the public road system of the state which have not been taken over and placed under maintenance or which have been abandoned by the state highway and public works commission, but which remain open and in general use as a necessary means of ingress to and egress from the dwelling house of one or more families * * * and all other roads or streets or portions of roads or streets whatsoever outside of the boundaries of any incorporated city or town in the state which serve a public use and as a means of ingress or egress for one or more families, regardless of whether the same have ever been a portion of any state or county road system, are hereby declared to be neighborhood public roads * * *. ' And there is no allegation in the complaint that the abandoned portion of the road remains open and in general use 'as a * * * means of ingress to and egress from the dwelling house of one or more families', or serves 'a public use and as a means of ingress or egress for one or more families'.

And the contention that complaint does not state a cause of action against defendants in that it is not alleged that plaintiff has a dwelling on his property without means of egress and ingress thereto, is not tenable.

It is true that there is a proviso in G.S. § 136-67 which defines what portions and segments of old roads that do not come within the definition of 'neighborhood public roads', as above recited, and which provides that 'the owner of the land, burdened with such portions and segments of such old road, is hereby invested with the easement of right of way for such old roads heretofore existing '. The first part of the proviso reads: 'that this definition of neighborhood public roads shall not be construed to embrace any street, road or driveway that serves an essentially private use, and all those portions and segments of old roads, formerly a part of the public road system, which have not been taken over and placed under maintenance and which have been abandoned by the state highway and public works commission and which do not serve as a necessary means of ingress to and egress from an occupied dwelling house are hereby specifically excluded from the definition of neighborhood public roads, and the owner * * *', etc. (as above stated).

Thus it appears that the allegations of the complaint fail to bring the abandoned segment of road in controversy within the definition of roads excluded from the definition of 'neighborhood public roads' as set forth in the proviso.

But regardless of whether or not the segment of road in controversy comes within the proviso, the allegation of the complaint is that the public used the highway for a period of 28 years, or more, without interference and as a matter of right...