Faulk v. Thornton

• Decision Date: 17 March 1891
• Parties: FAULK v. THORNTON.
• Court: North Carolina Supreme Court

12 S.E. 998

108 N.C. 314

FAULK v. THORNTON.

Supreme Court of North Carolina

March 17, 1891

Appeal from superior court, Cumberland county; GILMER, Judge.

The complaint alleges that the plaintiff is the owner and in possession of the tract of land--a town lot--described by particular metes and bounds specified, that do not embrace the "alley-way," and the room or rooms situate immediately over the same, presently to be mentioned and described, and that his two-story brick house described is situate upon this lot. It further alleges: "(2) That until the times hereinafter complained of there was formerly an open alley-way running the whole length of the aforesaid brick building, by, through, and over which the plaintiff and those under whom he claims formerly, and from the times whereof the memory of man runneth not to the contrary, and for more than 20 years next preceding the times hereinafter complained of, were wont and accustomed to have free ingress and egress, without hindrance or molestation, to and from the back part of the aforesaid brick building and the back part of the premises embraced in the aforesaid boundary lines, the said alley-way being on the south side of and adjoining the land whereon said brick building stands. (3) That immediately over the aforesaid alley-way, and at a distance from the ground equal to the height of the second story of the aforesaid brick building, and on the south side thereof, and connected with the second story of said brick building, there is inclosed by brick walls a room, which has walls on the east, south, and west sides thereof, and opens into the second story of said brick building, the same being really and actually a projection or extension of said second story of said brick building over the alley-way aforesaid, with an open window in the front thereof and an open window in the rear thereof, and the south side of said room is the solid unbroken brick wall of the building immediately adjoining which said brick wall of the building immediately adjoining serves to support said room, and inclose it on the south side thereof. (4) That the plaintiff was at the times hereinafter complained of in the peaceable and quiet adverse possession of the aforesaid room over the alley-way aforesaid, using and occupying the same in connection with his occupancy of the premises and brick building aforesaid. (5) That the plaintiff, and those under whom he claims, have continuously for more than forty years next preceding the times hereinafter complained of, held the quiet, peaceable, and undisputed adverse possession of and used and occupied the aforesaid room over the aforesaid alley-way as a part and parcel of and as belonging to and connected with the occupancy of the second story of said brick building, and enjoyed all the appurtenances and privileges thereto belonging, without any hindrance or molestation. (6) That within six months next preceding the commencement of this action, that is to say, on or about the 1st day of August, 1883, the defendant, utterly disregarding the plaintiff's right in the premises, with a large number of laborers and workmen, such as brick-masons and carpenters and other builders in his employment, wrongfully entered upon the premises hereinbefore described, and wrongfully did, or caused to be done and committed, the acts of trespass hereinafter set forth, that is to say: First, erected a brick wall so as to obstruct and close up the aforesaid alley-way, so that the same cannot be any more used as theretofore it had been, and so as to render ingress and egress to and from the plaintiff's said premises impossible; second, erected said brick wall so as to enter and interfere with the use and enjoyment by the plaintiff and his tenants of the room over said alley-way hereinbefore described; third, erected said wall so as to destroy one-half (or thereabouts) of the rear window of said room over said alley-way, and closed up about one-half thereof so as to exclude light and air from said room to the extent of said wall, acting as an obstruction to said window; fourth, erected said wall, as the plaintiff is informed and believes, partly on the premises described in the aforesaid deed, and of which the plaintiff was then in the quiet and peaceable adverse possession; and other wrongs to the plaintiff then and there did, to the great damage and injury of the plaintiff. Wherefore the plaintiff demands judgment: (1) for two thousand dollars damages; (2) for the costs and disbursements of this action; (3) for such other and further relief as he may be entitled to."

The answer denies all the material allegations of the complaint. On the trial the defendant insisted that in the complaint the alleged "alley-way" was described as situate" on the south side of and adjoining the land whereon said building [the brick building mentioned] stands," and therefore he could not claim the ownership of the "alley-way," and claim to locate his lines so as to include it. He contended that the plaintiff had alleged a description of his land, and he was estopped to depart from this in his proof. The court held otherwise, and the defendant excepted. The defendant claimed that the dividing line was in the middle of the alley. There was conflicting evidence as to the possession of the alley-way, and also as to whether the alley-way was open for the public until a short time before the bringing of this action. "Defendant...