Kennedy v. Williams
| Decision Date | 31 October 1882 |
| Citation | 87 N.C. 6 |
| Court | North Carolina Supreme Court |
| Parties | J. C. KENNEDY and others v. JAMES WILLIAMS. |
OPINION TEXT STARTS HERE
MOTION for an injunction to restrain the defendant from obstructing a road, heard at Spring Term, 1882, of LENOIR Superior Court, before Gilmer, J.
The restraining order theretofore issued was continued until the final hearing of the action, and the defendant appealed.
No counsel for plaintiff.
Messrs. Strong & Smedes, for defendant .
The plaintiffs, being the owners of certain public mills, complain that the defendant, by obstructing a certain public road leading to the same, has done them great damage in the way of loss of patronage, for which they seek to recover compensation of him; and in the meantime, alleging that he intends to erect other obstructions, they ask for an injunction restraining him from so doing.
The appeal is taken from an order at chambers granting the injunction prayed for.
In his answer, the defendant denies that the road is a public highway, and insists that it has been hitherto used only by his permission, subject to be recalled at his pleasure.
Much testimony, in the way of affidavits and counter-affidavits, was offered by the parties in support of their respective positions, but it is unnecessary that we should refer to it at all, since, in the opinion of this court, the plaintiffs must fail upon their own allegations and proofs.
As alleged in their pleadings and testified to by themselves and their witnesses, the facts of the case are as follows:
Some six years before the institution of the action, the defendant, owning a tract of land in the vicinity of the plaintiffs' mills, agreed with them that if they would assist him in removing a certain barn and stable, he would give them and the public a right of way over his land, to lead from the Wilmington road, near by, to the mills, and thence out in another direction to the said Wilmington road. The plaintiffs rendered the assistance asked, and thereupon the defendant removed his fence and established it along the proposed new road, saying that it should be a public road, free to the plaintiffs and all persons going to and returning from the mills. As soon as thus opened, the public--that is to say, persons traveling--began to use the road, and have ever since continued to do so, though the county authorities have not recognized it as a public road, or taken supervision of it.
The plaintiffs rightly concede that they can lay no claim to...
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