Parks v. Board of Com'rs of Lenoir County

• Decision Date: 21 November 1923
• Docket Number: 228.
• Citation: 120 S.E. 46,186 N.C. 490
• Parties: PARKS ET AL. v. BOARD OF COM'RS OF LENOIR COUNTY ET AL.
• Court: North Carolina Supreme Court

120 S.E. 46

186 N.C. 490

PARKS ET AL. v. BOARD OF COM'RS OF LENOIR COUNTY ET AL.

No. 228.

Supreme Court of North Carolina

November 21, 1923

Appeal from Superior Court, Lenoir County; Grady, Judge.

Action by W. N. Parks and another against the Board of County Commissioners of Lenoir County and another for injunction. From an order vacating a restraining order, plaintiffs appeal. Modified and affirmed. The complaint alleges: That the defendant is the board of county commissioners of Lenoir county, composed of H. E Moseley, R. R. Rouse, Hugh Bryan, J. R. Fields, and Norman West, and Frank Rhem is the duly appointed and acting superintendent of roads of Lenoir county. That the plaintiffs own certain land in Moseley Hall township, Lenoir county--116 acres and 98 acres cleared and in cultivation. That on the north of this land Garland Waters and others are in control of a millpond, on which is situated a gristmill. That the millpond is not on the La Grange-Kinston Highway, but is situated on two or more public roads or paths, one of which leads to the La Grange-Kinston Highway. That certain people without the consent of plaintiffs, for the past two years have been going over their land from the public road to the mill. That at a meeting of the board of commissioners of Lenoir county, on Monday, July 9, 1923, a resolution was passed whereby the establishment and location of a road across the plaintiffs' lands was authorized and directed. Said resolution is as follows:

"North Carolina--Lenoir County. In the Matter of Petition for Public Road from the Old Kinston-La Grange Highway to Waters Millpond. Order of Board of Commissioners. At an adjourned meeting of the board of commissioners of Lenoir county under date of Monday, July 9, 1923 (said meeting being held at such time and place pursuant to an adjournment of the regular meeting on the first Monday in July), a petition having been presented requesting this board to open, locate and maintain a public road from the old Kinston-La Grange public road to Waters Millpond, and the said petition having been carefully considered and examined, and it appearing that the same is signed by a large number of citizens of the county, especially of the citizens of Moseley Hall township, and the petition being further examined and it appearing that the said Waters Millpond is a place where there is maintained a regular gristmill that grinds for toll, and is a public mill, and further that the said millpond is now being used as a local resort and place for bathing, and that a large number of the public go to said place for the aforesaid purposes and for other public purposes, and that for some time there has been a roadway from the said old Kinston-La Grange public road to Waters Mill across the land of W. N. Parks and now located on his ground, but that said road has not been declared a public road or taken over by the county.

It is now, therefore, ordered by the board that a public road be and hereby is located and shall be maintained from the old Kinston-La Grange public road to Waters Mill, and that in the judgment of this board the same will be advantageous to the public, and such is found to be a fact. It is further ordered that the said road so located be taken over, established and maintained by the county for the benefit of the public as a branch or neighborhood road under the terms of the Special Local Act of the Legislature of North Carolina applicable to Lenoir county, and to that end that the width of said road shall be 24 feet. That the same shall be located along the line of the present location of the road across the land of W. N. Parks, but that such location may be shortened or straightened under the direction of this board. That the present road as now located shall remain open as a public road until the relocation, straightening and shortening of said road shall take place under the terms of this order said board finding that such is necessary and advantageous to the public.

It is further ordered that R. R. Rouse be authorized and directed to proceed under the terms of this order to lay out and locate said road, and to keep open the present road as now located until the final relocation, straightening and shortening of the said road may be made, and the said Rouse is authorized to take the matter up with M. N. Parks on behalf of this board, and to otherwise carry out the terms of this order and report his action hereunder to this board.

It is further ordered that all the rights of W. N. Parks for any damage to which he is entitled shall be reserved and he is allowed to file his claim as is provided by law in the Special Local Act applicable to Lenoir county.

A copy of this order will be delivered to W. N. Parks by said commissioner R. R. Rouse."

That the resolution was irregular and not in compliance with the statute. That pursuant to the resolution, R. R. Rouse, one of the defendants, went upon the land of plaintiffs and attempted to locate, establish, and open a road across the lands of plaintiffs and across the land that had on it growing crops. That the road attempted to be located traversed a distance of more than three times the nearest distance from the said public road to the bridge at the millpond. That the distance from the said public road to the bridge at the millpond does not exceed 300 yards and goes through woodland, not in cultivation, high, dry land, and land on which a road could be easily and conveniently constructed. That there is already a well-defined woods path leading from the public road to the bridge near the millpond, and the construction of a road through the woods will occasion no damage to any one.

The plaintiffs further allege:

"That the defendant by its act has attempted to convert the lands of the plaintiffs to its own use, without notice and without hearing.

That Mr. H. E. Moseley, chairman of the board of county commissioners, had assured, some time previous to July 9th, the plaintiff W. N. Parks that the board would give him proper hearing before any action was taken in regard to the location of this road.

That the road to the said millpond is, and would be, used mainly by children of irresponsible age, and by insolvent people, they using it for the purpose of enjoying the water of the millpond; that these heretofore have occasioned considerable damage to the crops and lands of these plaintiffs, and for that reason these plaintiffs have been compelled to stop passage over this path.

That the location of this road as attempted to be located through the cleared land of these plaintiffs would work unnecessary and irreparable damage to the lands of these plaintiffs."

Wherefore these plaintiffs pray:

"(1) That the defendants and each of them, their agents and employees, be restrained and enjoined from locating or attempting to locate the said road across the cultivated land of these plaintiffs, as provided in the resolution of the board of county commissioners of Lenoir county.

(2) That defendants, and each of them, be ordered to appear and show cause why this restraining order should not be made permanent."

The complaint was duly verified, and Judge F. A. Daniels issued a restraining order citing the defendants to appear before Judge H. A. Grady, at Clinton, July 25, 1923, to show cause why the restraining order should not be made permanent.

The defendants, in their answer, deny that the individual members of the board of county commissioners are proper or necessary parties. It is not denied that the plaintiffs or any one of them is the owner of certain lands referred to in this action across which a roadway to Waters Mill is now and had for some time in the past been located, at present a distance of 700 yards across said land, and when straightened or relocated under the order it will be a distance of about 450 yards across said land.

They admit that a portion of the land is under cultivation. They allege the true facts in reference to the new road to be:

"That Waters Mill and millpond is situated on the north side of the present paved state highway from Kinston to Goldsboro, and that between the said paved highway and the said millpond runs an old sand-clay public road from Kinston to La Grange, and that in order for travelers to reach said mill and millpond from said two above-mentioned public roads, they must travel across the lands of various persons, including the land of the plaintiff, unless they go a very indirect and circuitous route, and could only then reach said millpond from a roadway which is not a public roadway, and which, even if it was a public roadway, would cause great inconvenience for the vast majority of the public who desire to go to and from the said millpond. It is expressly denied that the said millpond is situated on any public road or path, it being situated only upon a private path or way which should not be adopted by the authorities of Lenoir county as the only public way to said mill, and which has not been adopted as a public road or way by the defendants in their judgment and discretion, which they are authorized to exercise under the law."

Defendants further allege:

"That the said millpond has been developed into a public summer resort and bathing place and has for years been used as a public gristmill, and that the vast majority of its patrons and the public who desire to go to said mill and have business thereat come from the La Grange section, from Kinston, La Grange, and other points along the paved highway aforesaid, and along the old sand-clay road above mentioned, and that at present hundreds of persons daily go to said Waters pond, the number being larger on holidays and week-ends. That for 30 years in the past continuously a road has gone across the lands of

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