Pearce Et Ux v. Privette Et Ux

Citation213 N.C. 501,196 S.E. 843
Decision Date04 May 1938
Docket NumberNo. 455.,455.
CourtUnited States State Supreme Court of North Carolina
PartiesPEARCE et ux. v. PRIVETTE et ux.

Appeal from Superior Court, Franklin County; N. A. Sinclair, Judge.

Special proceedings by A. N. Pearce and wife against M. G. Privette and wife to establish a cartway over the lands of defendants. From a judgment sustaining a demurrer, plaintiffs appeal.

Reversed.

Special proceedings for the establishment of a cartway over the lands of defendants.

Petitioners filed petition before the clerk of the superior court of Franklin county and allege in substance that they are the owners of tract of land in Dunns township, in said county; that the defendants are the owners of a tract of land in said township, which adjoins and lies east of and between petitioners' land and the public highway known as the Louisburg-Zebulon road; that for more than fifty years the petitioners and their predecessors in title and the public generally have used for passing and repassing a road which extends across the defendants' land from the petitioners' land and points west thereof to Louisburg-Zebulon road; "that this roadway is the only outlet which the petitioners have from their farm to said public highway * * * and said roadway is the only means of ingress to the petitioners' said farm and egress therefrom, and said road and roadway is necessary and essential for continual daily use as it has been so used throughout the years * * "; that the defendant M. G. Privette has blocked said roadway, and forbidden and thereby prevents the petitioners to use it; and "7. That as a result of the said blocking and barricading of said roadway by the defendants, * * * they will have no adequate means of transportation affording necessary and proper means of ingress to their said land and egress therefrom, and the petitioners allege that it is reasonable and just and proper that they be permitted to use said roadway which has been blocked by the defendants or have established or provided for them another way or outlet across defendants' said lands to said public highway."

Petitioners upon such allegation pray that, in the event defendants do not remove the barricade and open the roadway for free and uninterrupted use by the petitioners, the court appoint a jury of view, and lay off a roadway as an outlet for and for use by the petitioners.

Defendants demur to the petition for that it does not allege facts sufficient to constitute a cause of action against the defendants in that:

"1. No right to the relief demanded is alleged in the said petition to be in said plaintiffs by virtue of any title to any easement upon the lands of these defendants.

"2. No easement is alleged to be held by the plaintiffs against or upon the lands of the defendants by virtue of any express grant, or estoppel, or way of necessity, or implication or reservation, or condemnation.

"3. No easement is alleged to be held by the plaintiffs against or upon the lands of the defendants arising out of prescription, through uninterrupted, peaceable, clear, notorious and continuous adverse user of any such easement, under claim of right and with intent to use adversely to these plaintiffs or to their predecessors in title, for twenty years.

"4. The said petition does not allege facts sufficient, by any reasonable intendment, to rebut the presumption that the alleged user was solely by permission license and consent, revocable at any time."

From judgment sustaining the demurrer, plaintiffs appealed to the Supreme Court, and assign error.

Yarborough & Yarborough, of Louisburg, and R. L. McMillan, of Raleigh, for appellants.

Charles P. Green, of Louisburg, for appellees.

WINBORNE, Justice.

Did the court below err in sustaining the demurrer? We think so.

"The office of a demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of the allegations of fact contained...

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12 cases
  • Leonard v. Maxwell
    • United States
    • North Carolina Supreme Court
    • June 16, 1939
    ... ... deduced therefrom, but it does not admit any legal inferences ... or conclusions of law asserted by the pleader. Pearce v ... Privette, 213 N.C. 501, 196 S.E. 843; Kirby v ... Reynolds, 212 N.C. 271, 193 S.E. 412; Ballinger v ... Thomas, 195 N.C. 517, 142 S.E ... ...
  • Anderson Cotton Mills v. Royal Mfg. Co.
    • United States
    • North Carolina Supreme Court
    • November 27, 1940
    ... ... wholly wanting in sufficiency. Commerce Ins. Co. v ... McCraw, 215 N.C. 105, 1 S.E.2d 369; Pearce v ... Privette, 213 N.C. 501, 196 S.E. 843; Blackmore v ... Winders, 144 N.C. 212, 56 S.E. 874 ...          Viewing ... the complaint ... ...
  • Vincent v. Powell
    • United States
    • North Carolina Supreme Court
    • March 22, 1939
    ... ... 517, 142 S.E. 761, 763; Andrews v. Oil ... Co., 204 N.C. 268, 168 S.E. 228; Toler v ... French, 213 N.C. 360, 196 S.E. 312; Pearce v ... Privette, 213 N.C. 501, 196 S.E. 843; Commerce ... Insurance Co. v. McCraw, N.C., 1 S.E.2d 369 ...           Both ... the ... ...
  • Presnell v. Beshears
    • United States
    • North Carolina Supreme Court
    • March 26, 1947
    ...in favor of the pleader. ' Dixon v. Greene, 178 N.C. 205, 100 S.E. 262, 264; Leach v. Page, 211 N.C. 622, 191 S.E. 349; Pearce v. Privette, 213 N.C. 501, 196 S.E. 843; Anderson Cotton Mills v. Royal Mfg. Co., 218 560, 11 S.E.2d 550; Thomas v. Atlantic & North Carolina R. Co., 218 N.C. 292, ......
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