Speight v. Anderson
| Decision Date | 18 September 1946 |
| Docket Number | 90 |
| Parties | SPEIGHT v. ANDERSON. |
| Court | North Carolina Supreme Court |
Action in trespass quare clausum fregit and for injunctive relief in which the defendant, answering, denies any trespass, asserts an easement in the nature of a public or private way, and pleads user thereof as a matter of right.
For a number of years the owners of the Anderson property had been using a vehicular road or cartway over and across the lands of plaintiff as a means of ingress and egress. Plaintiff blocked the road. The obstruction was removed and defendant continued to use the same. Thereupon this action was instituted and temporary restraining order was issued.
The evidence discloses the following facts
Fountain Street and Sunset Avenue in the Town of Tarboro extend in a westerly direction to the town limits. Plaintiff owns a farm adjoining the town limits and immediately west of the terminus of Sunset Avenue. The farm of the defendant lies west of the property of plaintiff.
For many years prior to 1933 there was a cartway or road which began at the terminus of Fountain Street and extended south along the city limits across and at right angles to the terminus of Sunset Avenue. Some distance south of Sunset Avenue it bore sharply to the right or west and ran to or near the main dwelling on the Speight land thence to an old oak. There it forked, one branch going to a tenant house on the Speight land and the other across the Murdock tract (now owned by defendant) to the dwelling on the Anderson or Martin land. This road or way was used as one of the available means of ingress and egress by the defendant's predecessors in title.
In 1932 or 1933 the Anderson land was purchased by Sheriff Martin. He, with the consent and assistance of plaintiff's immediate predecessors in title, extended Sunset Avenue in a direct line westerly to the defendant's property. Since said time the owners of the Martin-Anderson property have used this way at will for the purpose of ingress and egress. Members of the public have also used it.
The termini of the relocated way are substantially identical with those of the old road. However, the new way extends in a direct line while the old is arc-like. At some points they are several hundred feet apart.
The court below submitted issues as follows:
'1. Was the road described and mentioned in the pleadings dedicated to the public use?
'2. Has the defendant acquired an easement in the road mentioned and described in the pleadings?
It directed a verdict on the issues submitted in favor of the plaintiff. The jury answered each issue 'No' as directed. Thereupon the court entered judgment (1) that the defendant be permanently enjoined and restrained from entering upon or crossing over the land of the plaintiff, and (2) that defendant has no title, easement or right of way in and to the path or road cross the plaintiff's property. Defendant excepted and appealed.
Bond & Leggett, of Tarboro, for plaintiff-appellee.
H H. Philips and Geo. M. Fountain, both of Tarboro, for defendant-appellant.
There is no evidence in the record sufficient to support a finding that either the old or the relocated way of ingress and egress is a public road. Chesson v. Jordan, 224 N.C 289, 29 S.E.2d 906; Collins v. Patterson, 119 N.C 602, 26 S.E. 154.
Our statutes provide for the establishment of private cartways, tramways, railways, cable cars, shutes, flumes, G.S. s 136-69, and church roads, G.S. s 136-71. There is no legislative sanction, or provision for the establishment, of a neighborhood road, a term ordinarily used to designate a private way which serves a neighborhood as an outlet to a public road. See Collins v. Patterson, supra.
In 1931 the General Assembly, by Chap. 145, P.L.1931, provided that the exclusive control, management and responsibility for all roads in the several counties should be vested in the State Highway Commission. The State Highway Commission was vested with authority to decline to take over and assume control of roads and parts of roads which had theretofore formed part of the several county road systems. This was to be evidenced by the omission of such roads from the map prepared and posted in the several counties.
In 1933 the Legislature created and defined 'neighborhood public roads' by amendment of Chap. 448, P.L.1931 (). Chap. 302, P.L.1933. That act 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, and all those roads that have been laid out, constructed, or reconstructed with unemployment relief funds under the supervision of the Department of Public Welfare, are hereby declared to be neighborhood public roads * * *. ' In 1941 this Act was amended by inserting after the words 'Public Welfare' a further classification as follows: 'and all other roads or streets or portions of roads or streets whatsoever outside of the boundaries of any incorporated city or town in the State which serve a public use regardless of whether the same have ever been a portion of any state or county road system. ' Chap. 183, P.L.1941. This latter Act contained a proviso, however, as follows: 'Provided, that this definition of neighborhood public roads shall not be construed to embrace any street, road or driveway that serves an essentially private use.'
The way at issue is no part of an abandoned public road. Hence the question arises as to whether it comes within the terms of the 1941 amendment.
The General Assembly is without authority to create a public or private way over the lands of any citizen by legislative fiat, for, to do so, would be taking private property without just compensation. Lea v. Johnston, 31 N.C. 15. In construing the amendment, therefore, we may not assume that such was its intent. It follows that...
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Hutchins v. Davis
...all cases tried by a jury the judgment must be supported by and conform to the verdict in all substantial particulars. Speight v. Anderson, 226 N.C. 492, 39 S.E.2d 371; Page Supply Co. v. Horton, 220 N.C. 373, 17 493; Durham v. Davis, 171 N.C. 305, 88 S.E. 433. When the verdict of the jury ......
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