Crump v. Mims
| Decision Date | 30 June 1870 |
| Citation | 64 N.C. 767 |
| Court | North Carolina Supreme Court |
| Parties | WILLIAM CRUMP v. J. H. MIMS and others, Trustees, . |
OPINION TEXT STARTS HERE
If a road be dedicated by the owner of the soil to the use of the public, and be used by them under such dedication, it becomes a public road immediately; it is only for the lack of other evidence of dedication, that the lapse of twenty years is resorted to.
Where the dedication of a public road is once established, either by the lapse of time or otherwise, such obstruction or disuse as will afterwards defeat the dedication, must continue for twenty years.
A public road over a ford is not done away with by the building at the same passage, a bridge which affords the public a more acceptable transit, provided that the ford is used when the bridge is out of repair, or down; and this, even where the owner of the adjacent lands erects a fence across the approaches having a slip gap in it at the road, which is used by the public whenever they have occasion to pass.
The raising of the water at the ford by a dam of a Navigation Company chartered by the State, so as to render it unfordable, only suspends the use of the franchise, and upon the destruction of the dam enjoyment of the franchise is restored.
The rules of pleading at common law, in regard to materiality, certainty, prolixity, obscurity, &c., prevail under the Code of Civil Procedure.
( Woolard v. McCullough, 1 Ire. 437; The State v. Marble, 4 Ire. 318, and Ingram v. Hough, 1 Jon. 39, approved.)
INJUNCTION, before Tourgee, J., on a motion to dissolve, at Spring Term 1870 of CHATHAM Court.
The defendants, as Township Trustees, had employed one Thomas to open, from the abutments of a bridge, a way to an old ford across Cape Fear River at Haywood; and upon his doing this, the plaintiff, who owned the land at that place, brought this action for damages, for pulling down a fence, &c., and for an injunction, He obtained an order of restraint in vacation. At term the defendants answered, alleging that the way opened by them was a public road; and thereupon they moved to vacate the order.
It appeared by the testimony that the ford was known as Quilla's Ford as far back as in the year 1799; there being some evidence that the owner of the land had dedicated the passage to the use of the public even before that date. Previous to that time the town of Haywood had been laid out, with one of its principal streets leading to the ford. Previous to 1818, the ford was part of a road worked and used by the public. In 1818 a bridge was built across the ford, which, after standing for six or eight years, was washed away. While the bridge stood, both it and the ford were used, at the option of travellers, and the ford continued to be used after the destruction of the bridge. Afterwards another bridge was built, whi??eh was carried away in 1830. During its continuance, the ford was used whenever convenient.
In 1835 or 1836, another bridge, called Minnis', was erected, which stood about fifteen years. In 1837 or 1838, a fence was built across the passage to the ford, i. e., as we assume, on the locus in quo, which remained until the bridge was removed, except when temporarily swept away by freshets. This fence was provided with draw bars, which were let down by the travelling public at pleasure, and the ford was used whenever the bridge was unsafe. In 1852 or 1853, another bridge was erected, which remained until 1854, and the ford was used as before. A dam of the Deep River Navigation Company raised the water at the ford so that it could not be used until 1865, when the dam was burned.
His Honor allowed the motion to vacate; and the plaintiff appealed.
Howze, for the appellant .
Phillips & Merrimon, contra .
RODMAN, J. (After stating the case as above.)
The above statement of facts fully supports, we think, the general conclusions arrived at by his Honor. We are not called on to make a final decision on the facts. This will be the duty of a jury hereafter, when the parties go to trial upon the issue joined. Our duty is only to say whether the plaintiff has made a case entitling him to a continuance of the injunction.
It seems to us that he has not.
Independent of the long use, there is some evidence tending to show that before 1799 the then owner of the locus in quo had dedicated a road over it to the public. It does not require a user of twenty years, or of any definite time, for this...
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