Hall v. City of Fayetteville

• Decision Date: 04 June 1958
• Docket Number: No. 600,600
• Citation: 248 N.C. 474,103 S.E.2d 815
• Parties: Henry R. HALL, W. G. Clark, Bessle M. Burton, Mary E. White, M. C. Williams and Elsie L. Williams, Pauline Kanos and J. V. Kanos, Elizabeth H. Lambert, Ethel Brown Harvey, Hattie G. Moore, J. D. Waddell, Anne C. Waddell, F. R. Keith, Alma V. Taylor, Nola W. Reeves, J. S. McFadyen and Hattie S. McFadyen, Roy T. McDaniel and Zouline McDaniel, v. The CITY OF FAYETTEVILLE, J. O. Tally, Jr., George B. Herndon, W. P. DeVane, Eugene Plummer, Dewey W. Edwards, individually, and as members of the City Council of the City of Fayetteville.
• Court: North Carolina Supreme Court

Page 815

103 S.E.2d 815

248 N.C. 474

Henry R. HALL, W. G. Clark, Bessle M. Burton, Mary E. White M. C. Williams and Elsie L. Williams, Pauline Kanos and J V. Kanos, Elizabeth H. Lambert, Ethel Brown Harvey, Hattie G. Moore, J. D. Waddell, Anne C. Waddell, F. R. Keith, Alma V. Taylor, Nola W. Reeves, J. S. McFadyen and Hattie S McFadyen, Roy T. McDaniel and Zouline McDaniel, v. The CITY OF FAYETTEVILLE, J. O. Tally, Jr., George B Herndon, W. P. DeVane, Eugene Plummer, Dewey W. Edwards, individually, and as members of the City Council of the City of Fayetteville.

No. 600

Supreme Court of North Carolina.

June 4, 1958

Pittman & Staton, Sanford, and Sanford, Phillips, McCoy & Weaver, Fayetteville, for plaintiffs, appeallees.

J. O. Tally, Jr. and Robert H. Dye, Fayetteville, for defendants, appellants.

PARKER, Justice.

The defendants assign as error the referee's findings of fact numbered five and six, which were approved by the Judge, that there is not in the evidence any map, plan or description showing the location, description or width of Gillespie Street, as surveyed and laid out by the commissioners appointed by the Private Acts of the General Assembly of North Carolina, Sessions 1783 and 1784, and that there is not in the evidence any map, plan or description showing the location, width or description of the same street as surveyed, laid off or adopted at any time by the city of Fayetteville, except maps made after 1 January 1952. The defendants contend that these findings of fact are not correct for the reason that they introduced in evidence a deed from the Cape Fear Manufacturing Company to Electric Motor Repair Company, Inc., dated 6 January 1944, and recorded, conveying a certain lot, which is described as 'beginning at a stake in the Eastern margin of Gillespie Street, for the purpose of this description Gillespie Street is 100 feet wide * * *.' A study of the evidence shows that the two above findings of fact are correct, and the language of the above deed between two corporations in no way contradicts the exact language of these findings of fact. This assignment of error is overruled.

The defendants assign as error the plaintiffs' introduction in evidence of the Preamble and Paragraphs I, II and III of Chapter CXXX of the Private Acts of the General Assembly, Session u821, and Chapter LI of the Private Acts of the General Assembly, Session 1822, for the reason that these two Private Acts were not pleaded. G.S. § 1-157. The defendants pleaded, and introduced in evidence Chapter XXV of the Private Acts of the General Assembly, Session 1783, and Chapter XXXII of the Private Acts of the General Assembly, Session 1784. Both of the Private Acts introduced by plaintiffs have reference, one directly and the other indirectly, to the 1783 and 1784 Acts introduced by defendants. The defendants make no issue as to the existence or terms of the two Private Acts introduced by plaintiffs, and there is nothing in the record to show that defendants were taken by surprise by these two Acts. Even if we concede that the two Acts introduced by plaintiffs are Private Acts (Winborne v. Mackey, 206 N.C. 554, 174 S.E. 577; Bolick v. City of Charlotte, 191 N.C. 677, 132 S.E. 660; but see 41 Am.Jur., Pleading, p. 296), and their admission in evidence technical error, we think that upon a consideration of the whole record in the instant case, such admission would not justify a new trial. See Reid v. Norfolk Southern R. Co., 162 N.C. 355, 78 S.E. 306. This assignment of error is overruled.

The referee found as a fact that Gillespie Street, South of Market Square to Russell Street, is 100 feet in width between the property lines, and has been that width for many years. This finding of fact was approved by the Judge. Defendants assign as error that the court did not find that Gillespie Street is 100 feet in width for its entire length. The finding of fact patently refers to the actual width of Gillespie Street as it appears today, and has appeared for many years, and the notice given on 12 July 1952 by the city of Fayetteville to certain of the plaitniffs to remove structures upon the alleged strip of land, shows that Gillespie Street as it appears today is not 100 feet in width for its entire length. This assignment of error is overruled.

The referee found as a fact that 'until a short time prior to the institution of this action, less than two years, the defendants have not occupied, used, or attempted to use for street purposes the disputed strip of land.' Defendants excepted to this finding. The Judge modified this finding of fact by striking out the words 'or attempted to use,' and approved the finding of fact as modified by him. This assignment of error is overruled, for the reason that this finding of fact approved by the Judge, as modified by him, is supported by competent evidence.

The defendants assign as errors the following two findings of fact of the referee, which were approved by the Judge: One. 'The city of Fayetteville has not acquired by prescription or adverse possession the disputed strip of land.' Two. 'The city of Fayetteville has no rights in or to the disputed strip of land.' The defendants also assign as error the referee's conclusion of law, approved by the Judge, that 'the city of Fayetteville does not hold title to the disputed strip of land in trust for the use and benefit of the public, and has no rights to the disputed strip of land.' These assignments of error are overruled.

The defendants contend, under the above assignments of error, that Chapter XXV of the Private Acts of the General Assembly, Session 1783, appointed James Gillespie and six other named persons to lay out streets in the town of Fayetteville, and that the principal streets shall be 100 feet wide. That Chapter XXXII of the Private Acts of the General Assembly, Session 1784, states that the commissioners named in the 1783 Act have surveyed and laid off six principal streets as fully appears by a plan thereof, and provides that the principal streets are confirmed and established agreeable to the plan. The defendants contend that there is a presumption of law that the commissioners appointed by the 1783 Act laid off Gillespie Street to a width of 100 feet, and they cite in support of their contention Quinn v. Lattimore, 120 N.C. 426, 26 S.E. 638; Frazier v. Gibson, 140 N.C. 272, 52 S.E. 1035; Kirby v. Stokes County Board of Education, 230 N.C. 619, 55 S.E.2d 322; and In re Housing Authority of City of Charlotte, 233 N.C. 649, 65 S.E.2d 761.

Indulging the presumption that the commissioners appointed by the 1783 Act discharged their duty by surveying and laying out Gillespie Street with a width of 100 feet, such presumption will not, of itself, supply proof of the material and substantive fact that the disputed strip of land in the instant case was actually located within the 100 feet in width of Gillespie Street as surveyed and laid out by the commissioners. Belk v. Belk, 175 N.C. 69, 77, 94 S.E. 726, 730; United States v. Ross, 92 U.S. 281, 23 L.Ed. 707; Sabariego v....