Mosteller v. Southern Ry. Co.
| Decision Date | 05 November 1941 |
| Docket Number | 306. |
| Citation | 17 S.E.2d 133,220 N.C. 275 |
| Parties | MOSTELLER et al. v. SOUTHERN RY. CO. |
| Court | North Carolina Supreme Court |
This is an action for a permanent injunction to prevent defendants from closing an underpass and obstructing a road which, as plaintiffs contend, they have the present right to use. The facts, as summarized from the record, appear to be as follows:
About twelve years ago the highway from Connelly Springs to Icard crossed defendant's railroad at grade a short distance west of the underpass which is the subject of the present controversy. The State Highway Commission, which succeeded the Burke County highway commissioners in control of this highway, eliminated the grade crossing by relocating the highway along the north side of the railway and through the present underpass to the south side a little west of the post office and school in that village. The underpass was made through a fill, the tracks being supported on a creosoted timber trestle work. Its upkeep is stated to be about $225 a year.
While the highway was thus located, the plaintiffs, or some of them, purchased and built adjacent to the highway, many of them near the eastern end of this section in the vicinity of the underpass.
Recently the Highway Commission, after surveys and investigation in which it was ascertained that the underpass was inadequate and that a section of the highway through it had dangerous curves, decided to relocate the road, to close the underpass and to route the highway so as to cross the railroad on an overhead bridge a short distance from the old grade crossing in lieu of the underpass, thus taking out the dangerous curves in its vicinity, straightening the highway, and eliminating the expense of upkeep of the underpass. Accordingly a map was prepared showing the relocated road in its relation to the existing highway, upon which map was indicated the closing of the underpass, the building of the overhead bridge across the tracks, and, in detail, the route of the proposed relocation. This map was posted at the courthouse door in Morganton, as required by statute, and is in the evidence. No protest was made to the proposed changes either by the county commissioners or any other person, and the Highway Commission proceeded to put into effect the changes indicated. The road was relocated, the overhead bridge constructed, the new highway finished, and the routing completed. Thereupon the Highway Commission discontinued and tore up that portion of the highway on the south side leading from the underpass to the relocated highway, blocking the same and rendering it unavailable for passage, and removing a bridge across a stream upon the discontinued portion. Thereupon the Highway Commission notified the defendant to close the underpass. This defendant undertook to do, and while the work was in progress and partially completed, the plaintiffs brought this action to permanently enjoin defendant from closing the underpass and obtained a temporary restraining order. Upon the hearing of the order to show cause, the judge dissolved the restraining order, dismissed the action, and taxed plaintiffs with the costs. The plaintiffs appealed, assigning error.
O. L. Horton and Mull & Patton, all of Morganton, for appellants.
W. T. Joyner, of Raleigh, S. J. Ervin, Sr., and Harry L. Riddle, Jr., both of Morganton, and Clyde R. Hoey, of Shelby, for appellee.
The plaintiffs rely on alternative propositions, either of which, they contend, puts the defendant in the wrong: (1) that the relocation of the highway constituted an abandonment by the Highway Commission of the discontinued portion of the old road, which, as they contend, automatically, under C.S. § 3838(b), Michie's Code, 1939, gave it the status of a neighborhood public road, which defendant had no right to obstruct; (2) that there had been a complete official abandonment or vacation of the road, in which case, as persons who had purchased and built adjacent thereto on the faith of its permanent existence, they had, severally, acquired an easement, not only in the road, but in the underpass as a part of it, with the enjoyment of which defendant can not lawfully interfere.
1. Chapter 302, Public Laws of 1933, C.S. § 3838(b), Michie's Code, 1939, as amended, Public Laws 1941, c. 183, provides that "all those portions of the public road system of the State which have not been taken over and placed under maintenance or which have been abandoned by the State Highway Commission, but which remain open and in general use by the public *** are hereby declared to be neighborhood public roads, and they shall be subject to all of the provisions of this section with respect to the alteration, extension, or discontinuance thereof", etc. (Italics supplied.) We are of opinion that short sections of roads, discontinued by the Highway Commission in the interest of public safety and closed to travel, are not within the reasonable definition of abandoned highways remaining open and in general use, and are not within the contemplation of the statute.
Of course it was not the purpose of this statute, where it applied, to give any private easement in the further use of an abandoned road, but only to continue the status as a public road. On this phase of the case, none of the plaintiffs could claim a greater right than that which belongs to the general public. If the Highway Commission had the power not only to substitute one section of the road for another but to close the abandoned section, a subject which we discuss more fully below, it is clear that in this respect plaintiffs do not have a justiciable grievance.
2. The case presents no question of easement in the abandoned road by prescription under the common law, because the requisite twenty years' user is lacking. It is at least doubtful whether such an easement could be acquired over defendant's right of way by prescription under any circumstances. C.S.§ 434, Michie's Code, 1939. But plaintiffs, in this aspect of their argument at least, rest their case upon the theory that there had been a complete official abandonment of the road, leaving to them the right to its continued use as persons who had purchased and built adjacent to it on the faith of its permanent existence, citing amongst other authorities Davis v. Alexander, 202 N.C. 130, 162 S.E. 372 and Long v. Melton, 218 N.C. 94, 10 S.E.2d 699.
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