M.E. Gruber, Inc. v. Eubank

• Decision Date: 22 May 1929
• Docket Number: 535.
• Parties: M. E. GRUBER, Inc., et al. v. EUBANK et al.
• Court: North Carolina Supreme Court

148 S.E. 246

197 N.C. 280

M. E. GRUBER, Inc., et al. v. EUBANK et al.

No. 535.

Supreme Court of North Carolina

May 22, 1929

Appeal from Superior Court, Henderson County; Schenck, Judge.

Action by M. E. Gruber, Inc., and M. E. Gruber against E. W. Eubank trustee, and others. On motion of defendants plaintiffs were nonsuited, and they appeal. Affirmed.

Evidence of desultory use of old trail raised no question of fact as to establishment of public way by such user.

On October 15, 1836, Charles Baring executed and delivered a deed to Marie Joseph Gabriel Xaviar DeChoisel for a large body of land covering the land in controversy. The said deed shows the following reservation: "Thence South 5 degs. East, running on the west side of the creek 7 poles to a stake on the west side of the creek; thence same course 1 pole to a stake, reserving at all times the full and entire use of the distance of 40 yards of said creek for the use of my Flat Rock settlement and that it may not be directed (diverted) from the same." It is contended that this language created the Jerusalem trail, situated in some places about 40 yards from the creek and running across plaintiff's land for a distance of approximately one third of a mile.

The land by mesne conveyances became the property of R. C Seigling. On January 11, 1926, R. C. Seigling and wife conveyed to M. E. Gruber a part of said land, containing 112 acres, more or less, without reservation. Gruber executed a deed of trust to the defendant Eubank to secure the payment of purchase-money notes amounting to approximately $100,000. The entire purchase price was $150,000. The title to the property was investigated and an abstract thereof furnished to Gruber at the time of the purchase. In the meantime Seigling died, and his wife, Lucile L. Seigling, qualified as executrix of his will. At the time the first note fell due Gruber procured an extension of time from Mrs. Seigling. Payment not having been made according to contract, the defendant Eubank, under power contained in the deed of trust advertised the property for sale. Thereupon the plaintiffs secured a restraining order, alleging in substance that they had agreed to pay $150,000 for said property for the reason that he was desirous of acquiring a private estate which was excluded from highways and traffic, and thus protected from intrusion of outsiders. Plaintiffs further alleged that the language in the deed from Baring to DeChoisel and subsequent conveyances of said land constituted an easement upon their land, which said easement was an incumbrance upon the title and greatly depreciated the value of their property, for that the public had the right to pass across the land.

The evidence tended to show that there was a walkway of some kind known as the Jerusalem trail, which was located across plaintiff's land on the west side of the creek, and running from the Little River road on the west side of the creek until it strikes Idlewild drive. At this point the trail forks, and one part turns east and runs along said drive, and the other continues in the direction of a church known as St. John's in the Wilderness. This walkway or trail appeared to be 40 yards wide and situated about 120 feet west of the creek at some points, although at other points it was more than 120 feet west of the creek. The trail had been obliterated in some places, and at other places it was fairly plain. There was evidence tending to show that a cow pasture and a hog pasture had been built across this trail, but that there were gates or stiles in the fence many years ago. "In spots the trail is grown up in blackberry sprouts, timber and things like that pretty thick. *** The trail stops near a wire fence, and you go into a field after it leaves the Gruber land. *** There is a field all plowed and cultivated part of the way, and there is no indication of a trail. *** I went on the west side of the creek to locate the 40-yard strip because about forty years ago I saw a stile across the fence, and old people said it was where the Jerusalem trail was." There was evidence that from time to time within the past 20 years people had been seen on the land, and perhaps in some part of this trail where it had not been obliterated. The field, referred to by the witnesses, was cleared and put into cultivation about 16 or 17 years ago. The entire tract was under fence about 40 years ago. One witness for plaintiff testified as follows "There were paths all over that place, and people would travel them pretty generally as they wanted to. They went into the Jerusalem path more than others. It seemed it was a more public way. It was more in the way of the travel." Another witness testified: "My first acquaintance with that trail was about four years after the Civil War. Have traveled over that trail and have seen other people travel over it. The people used it when they wanted to. It was a public passway. I saw the Memmingers and Middletons going through there. *** Bard Middleton owned it when I first knew it. The C. G. Memminger place *** is right over on the other side of the Little River road. *** The time I knew of those people going through there was about the time of the Civil War. *** There has been a fence around the whole place, the Seigling place, for the last thirty or forty years."

Another witness for plaintiff testified he worked on the place from 1907 to 1912, and that he would see people walk through there, and that Mrs. Seigling said to let anybody go through the place if they did not molest anything. He further testified: "There were other paths going through the property in addition to the Jerusalem Trail. People used those trails like that and this Jerusalem Trail. They used them when they wanted to make a short cut. *** There never was much travel through there. The only thing was that people just took advantage of the place and went through when they wanted to go through just like they did in any other place. *** Those plantations are large and most of the people who walk through there were Southern people. They were just there in the summer time. It was mostly summer people and boarders up here that went there."

Another witness testified: "People generally have been passing through the Jerusalem Trail for twenty-five years at least. *** There are paths all through that place." Mr Seigling "told me just to let them go anywhere through those paths as long as they did not interfere with or destroy shrubbery." Mr....