Cohoon v. Roughton

• Decision Date: 01 March 1939
• Docket Number: 17.
• Citation: 1 S.E.2d 362,215 N.C. 116
• Parties: COHOON et al. v. ROUGHTON.
• Court: North Carolina Supreme Court

1 S.E.2d 362

215 N.C. 116

COHOON et al. v. ROUGHTON.

No. 17.

Supreme Court of North Carolina

March 1, 1939

Civil action to enjoin the defendant from blocking an alleged public road leading from Highway No. 64 to a wharf in Alligator Creek.

Issues were submitted to and answered by the jury as follows:

"1. Is the defendant the owner of the lands described in the answer: A. 'Yes.'

"2. Has the strip of land referred to in the complaint become a public highway by the continued and uninterrupted use or enjoyment of it by the public and work and control over it by the public authorities for twenty years under claim of right adverse to the owner, known to and acquiesced in by him? A. 'Yes."'

From judgment thereon, restraining the defendant from obstructing in any manner plaintiffs' easement in the use of said old road as the same existed at the time of the institution of this action, the defendant appealed.

W L. Whitley, of Plymouth, for appellant.

H L. Swain, of Williamston, for appellees.

BARNHILL Justice.

The plaintiff alleges that more than fifty years ago citizens of Alligator Township, Tyrrell County, constructed a wharf in Alligator Creek for the use of citizens of that community that a public road about 100 yards long was built from the then existing public road to the wharf, and that said road has been used continuously as a public road since its construction.

The wharf is constructed from the lands belonging to the defendant to deep water in Alligator Creek. There is no evidence to sustain the allegation that it was originally built by citizens of the township. It does appear that in 1912, the wharf having become dilapidated to the extent that it was not usable, citizens of the community, including the defendant, and with his permission, repaired the wharf and put it in usable condition. Wharfage was thereafter charged and the amounts so received went into a fund to be used to keep the wharf in good condition. Later, after the construction of Highway No. 64 and a new and more accessible pier at the end of said highway, known as the ferry pier, citizens discontinued the use of the wharf and the funds on hand from wharfage fees were paid to the defendant.

The evidence considered in the light most favorable to the plaintiffs tends to show that the roadway in controversy was an extension of the county public road system and that while the wharf was in usable condition persons having need thereof traveled to and from the wharf over said road, which crosses the defendant's land. Lately certain citizens of that community have been using the old wharf for the purpose of anchoring their boats and to take on and discharge hunting and fishing parties until the defendant blocked the road and this action was instituted.

The plaintiffs allege "that after the State Highway Commission took over the roads of the State it built a highway to the water's edge, but did not include this roadway to the wharf tramway." Under the law as it now exists, this would seem to be an allegation that the alleged road has been abandoned as a public highway. It is true that it is further alleged in the complaint that the public has continued to use the roadway as it has had the need and still uses the wharf for shipping purposes. This is not sufficient to constitute the passway a public road. The term "maintained by the public" as used in relation to public highways means "maintained under public authority by those officials whose duty it is to maintain public roads." Maintenance of a road by members of a community upon their...