Long v. Melton

• Decision Date: 18 September 1940
• Docket Number: 521.
• Citation: 10 S.E.2d 699,218 N.C. 94
• Parties: LONG et al. v. MELTON.
• Court: North Carolina Supreme Court

10 S.E.2d 699

218 N.C. 94

LONG et al. v. MELTON.

No. 521.

Supreme Court of North Carolina

September 18, 1940

This is an action for damages by plaintiffs against defendant, and also "that plaintiffs be granted an injunction enjoining and restraining the defendant, her servants, agents and employees, from obstructing said highway or interfering with the free use thereof by plaintiffs, their tenants and the public generally, seeking access to the lands of the plaintiffs; that plaintiffs recover the costs of this action to be taxed by the Clerk, and have such other and further relief as to the Court may seem just and proper."

The defendant in her answer, after denying plaintiffs' right to damages, prays: "That the plaintiffs recover nothing of her; that the plaintiffs do not have the relief or any part thereof prayed for in the complaint; that no restraining order, either temporary or permanent, be issued against her that she go without day and recover her costs of the plaintiffs and their bondsmen; that she be awarded such affirmative relief to which she may be entitled in the premises both at law and in equity."

The facts: Louis Long died in February, 1937, seized and possessed of a tract of land fronting on and lying south of the Old Dowd Road in Mecklenburg County, N. C., and extending out in the Catawba River on the westerly side. That the line of said land extended to the center of the Old Dowd Road and adjoined the lands of S. A. Berryhill. Louis Long died leaving a widow, Ada Long, and one child, Louise Long Kerlin and that said Louise Long Kerlin is the owner of said lands mentioned in the complaint, subject to a dower interest of Ada Long. The Old Dowd Road was the main State highway between Charlotte and Gastonia. That upon construction of the new concrete bridge over the Catawba River the said main State highway between Charlotte and Gastonia was moved northerly and known as the New Wilkinson Boulevard. The rightof-way of the State Highway at the place in controversy at the Old Dowd Road is 60 feet in width; the right-of-way of the New Wilkinson Boulevard is 100 feet in width; the Old Dowd Road has a paving of a width of 40 feet, and the New Wilkinson Boulevard has a paving of the width of 40 feet. Louis Long and the plaintiffs herein and their tenants have openly, adversely and notoriously used the Old Dowd Road, of a width of 60 feet, for a period of more than 20 years, and without obstruction or interference from anyone, or a dispute of the lawful right to use the same until the construction by the defendant of the obstruction on said Old Dowd Road, and that said highway has been not only used by Louis Long and the plaintiffs herein, and their tenants, but by the public generally, for a period of more than 20 years openly adversely and notoriously, and without objection on the part of anyone until the construction by the defendant of the obstructions mentioned in the complaint. Louis Long built a filling station, dance pavilion and barbecue stand on his land near the Catawba River, facing on the Old Dowd Road, which was used for ingress and egress to his property. The defendant, at the commissioners' sale of S. A. Berryhill's estate, purchased 71/100 of an acre of land which practically covered a part of the right-of-way of the Old Dowd Road and the New Wilkinson Boulevard. The northern line extended about 499 feet with the center of the New Wilkinson Boulevard and ran on the east side 35 feet south to a stake in the Old Dowd Road, thence N 73 W, 475 toward the Catawba River to a stake in the Old Road, thence N 33 E, 85 feet to a point in the center of the New Wilkinson Boulevard--containing 71/100 acres. Posts with "No Trespassing" signs on same have been put up by defendant to stop plaintiffs from ingress and egress to their property over the New Wilkinson Boulevard and the Old Dowd Road opposite their property. The defendant contends that at the commissioners' sale, she purchased the fee-simple in the land and had a right to close the road. That by going some 500 feet in an easterly direction from where the buildings are located, plaintiffs can enter the New Wilkinson Boulevard and can travel on one-half (30 feet) of the Old Dowd Road, and thus have ingress and egress to their property.

A temporary injunction was granted for plaintiffs and continued to the hearing. On the hearing "Upon the close of plaintiffs' evidence, defendant demurred to the evidence and moved for judgment as of nonsuit, motion allowed." To the allowance of said motion of nonsuit plaintiffs in apt time excepted, assigned error and appealed to the Supreme Court. The assignment of error and other necessary facts will be set forth in the opinion.

H. L. Taylor, of Charlotte, for plaintiffs.

J. Laurence Jones and Stewart & Moore, all of Charlotte, for defendant.

CLARKSON Justice.

Did the court err in signing the judgment as in case of nonsuit, C.S. § 567? We think so, under the facts and circumstances of this case.

The New Wilkinson Boulevard is 100 feet wide and paved 40 feet in the center. The Old Dowd Road is 60 feet wide and paved 40 feet in the center. The right-of-way of the New Wilkinson Boulevard on the south is on the Old Dowd Road right-of-way. The 60-foot right-of-way of the Old Dowd Road over-laps for some distance on the 100-foot right-of-way of the New Wilkinson Boulevard. There is no question that plaintiffs had a right to the Old Dowd Road for ingress and egress to their land. The New Wilkinson Boulevard was built on the north of the Old Dowd Road, and part of the 100-foot right-of-way, on the right-of-way of the Old Dowd Road. Plaintiffs' predecessor in title built on the Old Dowd Road and had ingress and egress over same before the New Wilkinson Boulevard was built. We see no good or valid reason why plaintiffs' successor in title should not have a right-of-way or easement over the Old Dowd Road onto the New Wilkinson Boulevard which over-laps same. Under the facts and circumstances of this case, we think there was evidence to support plaintiffs' claim to use the full width (60 feet) right-of-way of the Old Dowd Road for ingress and egress to the New Wilkinson Boulevard.

The fact that the Old Dowd Road was a state highway, 60 feet wide, maintained by the State and used by the public for years is not disputed. The fee to the strip of land between the paved portion of the two highways was vested in the Berryhill estate and the defendant purchased this strip and sought to obstruct the old highway by placing posts with wire attached thereto, so as to prevent travel from the new highway to plaintiffs' land. The obstructions were located within the 60-foot right-of-way of the old road, and the approach used to plaintiffs' lands was entirely within the right-of-way of the two highways comprising a strip 160 feet wide.

In State v. Hewell, 90 N.C. 705, 706, 707, we find the following: "The fact that a public road is laid off on a man's land does not deprive him of the freehold of the land covered by the road. His title continues in the soil, and the public acquire only an easement, that is, the right of passing and repassing along it. State v. Davis, 80 N.C. 351 . Dovaston v. Payne, 2 Smith, L.C., 90."

The defendant, who purchased at the commissioners' sale 71/100 of an acre of the Berryhill land, acquired the fee-simple. She knew the Old Dowd Public Road was there and plaintiffs and their predecessors in title were using it for ingress and egress to their land. She purchased it cum onere.

We think Davis v. Alexander, 202 N.C. 130, 162 S.E. 372, is similar to the present action. At pages 131, 132 of 202 N.C., at page 374 of 162 S.E., it is said: "The law applicable to this action is well stated in 2 Elliott, Roads & Streets (4th Ed.) part section 1172, at page 1668: "'Once a highway always a highway," is an old maxim of the common law to which we have often referred, and so far as concerns the rights of abutters, or others occupying a similar position, who have lawfully and in good faith invested money or obtained property interests in the just expectation of the continued existence of the highway, the maxim still holds good. Not even the legislature can take away such rights without compensation. Such at least, is the rule which seems to us to be supported by the better reason and the weight of authority, although there is much apparent conflict as to the doctrine when applied to the vacation of highways.' [Citing authorities] *** [202 N.C. at page 135, 162 S.E. at page 375]. In 1 Lewis on Eminent Domain, pp. 368, 369, the matter is stated thus: 'But it would seem that both the public and those claiming the fee should be estopped from denying the existence of a private right of access and of light and air, as to those who have purchased or improved abutting property on the faith of the advantage offered by the street or highway and that this private right of access should be held to include an outlet in both directions to the general systems of streets. Many cases hold that these private rights exist in favor of every abutting owner without considering how the street was established or how such owner obtained title to his property."'

Plaintiffs' position here is squarely supported by Davis v. Alexander supra. There, as here, when a highway was relocated, the owner of the fee beneath the old road attempted to take complete possession of it and close it. Plaintiff, who had built on the old road and was thus shut off from the new road, except by a longer route than the one closed, sought a mandatory injunction preventing the closing of the former road. This court, in reversing the lower court, upheld the right of the plaintiff to a permanent injunction against the closing of the old road. The law of the Davis cas...