Long v. Trantham

• Decision Date: 18 September 1946
• Docket Number: 96
• Citation: 39 S.E.2d 384,226 N.C. 510
• Parties: LONG v. TRANTHAM et ux.
• Court: North Carolina Supreme Court

39 S.E.2d 384

226 N.C. 510

LONG v. TRANTHAM et ux.

No. 96

Supreme Court of North Carolina

September 18, 1946

Civil action for mandatory injunction for removal of obstruction of cartway and for permanent injunction against interference of use of cartway.

Plaintiff alleges in his complaint substantially this factual situation: Plaintiff on the dates hereinafter stated owned and now owns a 10-acre tract of land in Fairview Township Buncombe County, North Carolina, which does not abut on any public road. Adjoining it, and between it and the nearest public road,--the Brush Creek public road,--there is land owned by defendants. As the only means of ingress and egress to and from said land of plaintiff across intervening lands to the public road, there was an old road used by plaintiff 'his friends, neighbors and acquaintances', and his predecessors in title 'always' or 'for 50 years or more'. In the fall of 1943, the defendants obstructed same or caused it to be obstructed by constructing a fence across same. Whereupon, on October 13 1943, in a proceeding instituted upon petition of 'P. S Bagwell, Woodrow Dillingham and L. V. Long' (the last being plaintiff in present action) v. 'Gordon Trantham and Mrs. Gordon Trantham' (present defendants), the Board of Commissioners of Buncombe County entered a judgment establishing 'a cartway from the petitioners' property to the Brush Creek Road across the property of the respondents, to be located along the line of the present road as the same now runs, or did run across the Trantham property before it was obstructed with fence and otherwise', and assessed damages at $25 to be paid by petitioners to respondents, which amount has been tendered by plaintiff and refused by respondents, and then paid into the office of the clerk of Superior Court for the use and benefit of the respondents. Thereafter, plaintiff requested the respondents to remove the obstruction from the cartway so that he could use same. Nevertheless, the defendants have failed to remove the fence. The location of the cartway so established is well known and defined through the property of the defendants to the public road and the obstruction of it is unlawful.

Defendants answering, deny the material allegations of the complaint and as further answer aver that in the purported proceedings of the Board of Commissioners of Buncombe County 'no attempt was made to lay out a cartway over the lands of P. S. Bagwell and Woodrow Dillingham, or any of said petitioners; that prior to the date of the institution of this action, the defendants herein purchased the lands of the said P. S. Bagwell and Woodrow Dillingham, and, in the event the court should find that there was a lawful cartway laid out over the lands owned by the defendants, at the date of said purported proceedings, that the same could not exceed in length 250 feet' across the lands then owned by defendants, and in no event could same be constructed to reach the lands of the petitioners.

Plaintiff in reply denies the averments of the further answer of defendants and alleges that the petition for cartway instituted before the Board of Commissioners was in the name of R. W. Dillingham, P. S. Bagwell and L. V. Long as petitioners, and was for a cartway to the Brush Creek public road and was signed and executed by all of said petitioners; that Dillingham and Bagwell, by their action in joining with plaintiff in the petition and requesting the establishment of the cartway at a definite location to the Brush Creek Road, consented and acquiesced in a cartway over their lands to the land of the plaintiff, and, by so doing, are estopped to deny the existence of a cartway over and across their said lands to the plaintiff's land, and the defendants having actual knowledge of the proceeding and its contents, and standing in privity of title to Dillingham and Bagwell, are likewise estopped to deny the existence of a cartway over the lands which Dillingham and Bagwell owned at date of the petition; and that the original petition, notice, order and other papers filed in said proceeding before said Commissioners are made a part of the reply and are pleaded as an estoppel to the defendants' further answer and defense.

Upon the trial in the court below plaintiff offered evidence, documentary and oral, tending to show among other things these facts:

(1) That in pertinent part the original petition to the Board of Commissioners of Buncombe County for the cartway, the petitioners R. W. Dillingham, P. S. Bagwell and L. V. Long set forth their ownership of land in Fairview Township Buncombe County, North Carolina, 'and that there is no public road, cartway or right of way leading from their property to any public road, other than the one road that has served this property for the past 25 years and at present time is closed'; that for them to enjoy the use of their property it is necessary for a cartway to be established leading from their property to a public road; 'that the most economic route which could be followed in the opinion of the petitioners in the establishment of a cartway would be to open the present road which has been closed', and pray that 'in accordance with Chapter 328 of Public-Local Laws of 1923', the Board 'take such action as is...