Ingraham v. Hough

• Decision Date: 31 December 1853
• Citation: 46 N.C. 39,1 Jones 39
• Parties: JOHN N. INGRAHAM v. HEZEKIAH HOUGH.
• Court: North Carolina Supreme Court

1 Jones (NC) 39

46 N.C. 39

JOHN N. INGRAHAM

v.HEZEKIAH HOUGH.

Supreme Court of North Carolina.

December Term, 1853.

Where one uses a road over the land of another, for twenty years, as a matter of right and without interruption, the Judge should instruct the jury, that it is their duty to presume a grant of the easement.

If the road is used under a license, or by mere permission of the owner of the land over which it runs, no such presumption arises.

If the owner of the servient tenement erects gates and turns the road during the time, without objection on the part of the owner of the dominant tenement, this is evidence tending to show that the user was by permission, and not as a matter of right.

The fact that the owners are brothers, is some evidence, (though slight,) which may be considered in connection with the other facts.

WILSON v. WILSON, 4 Dev. 154--PUGH v. WHEELER, 2 Dev. & Batt. 50-- GERINGER v. SUMMERS, 2 Ired. 229, and FELTON v. SIMPSON, 11 Ired.84-- cited and approved.

Appeal from the Superior Court of Anson County, at Spring Term, 1853, his Honor JUDGE DICK presiding.

THIS was an action on the case for obstructing a PRIVATE WAY. The plaintiff claimed on two grounds: 1st, by prescription, and 2d, by a user for twenty years, from which the law presumed a grant.

The facts of the case, as disclosed in the evidence, were as follows:--William Hough, under whom the defendant claimed, was the owner of two tracts of land in the year 1822, and in that year conveyed one of them containing thirty acres to his brother, John Hough, under whom the plaintiff claims. John Hough, soon after this, purchased a house, and settled on the thirty acre tract, and a road for wagons, carts, &c., was opened from this house across the lands of the said William, passing through his yard, into the Allenton road, which was a public highway. Some years after the said way was opened, William Hough erected two gates across it, so as to enclose his yard, and these were kept up by him for many years. John Hough continued to use the said way up to the time of his death, in 1846, when the said tract of thirty acres was assigned to his widow for dower, and she resided on the same, and used the said way until 1846, when she sold her dower right in the land to the plaintiff, who immediately took possession and resided on the same, and used the road until September, 1850, when the defendant, who had become owner of the William Hough tract, erected a fence upon the same, across the road. He also felled some trees into this road, also on his own land. Shortly after this, the present suit was brought. Since the obstructions were put across the road, the plaintiff had opened a way over his own land into the Allenton road, said way passing for about one hundred yards over the defendant's land. About ten or twelve years ago, in the lifetime of John Hough, William Hough changed a part of the road, so as to turn it out of his yard, through an old field seventy yards from the former location. John Hough and his family used the road, thus changed, up to the time of his death, and his widow and her family used it until she sold to the plaintiff, and the plaintiff used it, until it was obstructed as aforesaid.

The plaintiff's counsel abandoned the claim by prescription, but requested the Court to charge the jury, that the use of the road for twenty years by the plaintiff, and those under whom he claimed, gave him a right to use the road, and that the law presumed a grant.

Secondly. That twenty years use of the road, by the plaintiff and those under whom he claimed, gave him a prima facie right, and that there was no evidence to rebut the presumption of a grant.

Thirdly. That putting the gates across the road by William Hough, was no obstruction to defeat the right of John Hough.

The Court refused to give the instruction prayed for, but instructed the jury that there was evidence proper for them to consider, and if it was sufficient, in their minds, to repel the presumption of a grant, they would find for the defendant--that the fact of William Hough erecting gates across the road, several years after it was opened, and keeping them up for several years, and the additional fact, that William Hough, ten or twelve years ago, turned a part of the road seventy yards from its original location, without objection on the part of John Hough, and the near relationship of the two, were all proper for consideration. That, if they should be of opinion, from all the circumstances, that the two brothers opened the road for their mutual convenience, and that William only gave John a parol license to pass over his land, such license terminated at John's death. But, if the evidence was not sufficient to satisfy them that there was nothing more than a parol license, or special grant to John, then the law would presume a grant, and the plaintiff would be entitled to recover.

Under these instructions, the jury found a verdict for the defendant. Motion for a venire de novo, which was refused. Appeal to this Court.

Winston, for plaintiff .

Dargan, for defendant .

BATTLE, J.

We are clearly of opinion, that the plaintiff has no just cause of complaint against his Honor, for the instructions which he gave to the jury, or for those which he refused to give them. The first instruction prayed, assumed, that the plaintiff and those under whom he claimed, had used a way over the land of those under whom the defendant claimed, for twenty years and more, and insisted, that from such enjoyment the law presumed a grant of the easement. Supposing that the facts were as assumed, it has been settled in this State, that the legal consequence is not such as contended for by the plaintiff. In the case of WILSON v. WILSON, 4 Dev. Rep. 154, this Court recognised and sustained the doctrine laid down by Mr....